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Gazette, NPR seek records in Massey-Alpha merger case

Read the court filing: http://blogs.wvgazette.com/coaltattoo/

 

CHARLESTON, W.Va. -- The Charleston Gazette on Friday joined with National Public Radio in a legal filing that urges the West Virginia Supreme Court to not seal the records in a lawsuit concerning the proposed buyout of Massey Energy by Alpha Natural Resources.

Earlier this week, a group of Massey stockholders asked the Supreme Court to at least temporarily block the merger. Those stockholders, led by the California State Teachers Retirement System, also asked the court to seal the entire record in the case.

In a legal brief, the Gazette and NPR argue that the public has a right to see the court documents, especially because they might contain more details about the events leading up to and following the Upper Big Branch Mine disaster.

"Massey Energy and its related entities form one of the largest employers in this state," the brief says. "As such, Massey's conduct, the sale or potential sale of the company, the required public disclosure of relevant information concerning the value of the company to shareholders so they can make informed decisions, and the actions of the parties in this case are of great interest and concern both to the citizens of West Virginia, and nationally as well."

Sean McGinley, a lawyer with the Charleston firm of DiTrapano Barrett & DiPiero, filed the brief on behalf of NPR and the Gazette.

The brief says, "In addition, there is a greater cause for public scrutiny of the filings in this matter in light of the April 5, 2010, explosion at Massey's Upper Big Branch Mine.

"The suspicious circumstances surrounding that tragedy have resulted in numerous lawsuits, including the recently-filed suit alleging that the sale of Massey to Alpha will harm the ability of victims and their families to recover damages," it says. "The filings in this case will likely shed new light on Massey's acts and or omissions in relation to this tragedy."

Alpha is set to buy Massey in a $8.5 billion transaction, with separate meetings of the shareholders of each company scheduled to vote on the matter on Wednesday. Both meetings are scheduled for 9:30 a.m. at a hotel in Kingsport, Tenn.

Shareholder groups have filed lawsuits in West Virginia and Delaware, alleging that former Massey CEO Don Blankenship and other Massey executives and board members mismanaged the company and ignored major safety problems that led to the Upper Big Branch disaster. Records in those lawsuits allege the disaster cost the company more than $1 billion, and that insiders stand to pocket at least $196 million in the merger.

The lawsuits contend that Massey management moved quickly toward the Alpha deal in an effort to shed any personal liability they might have in the deaths of 29 miners in the disaster.

Legal briefs -- but not underlying exhibits or deposition transcripts -- have been made public in the Delaware case. Those briefs have revealed serious concerns by Alpha officials about Massey's safety practices, questions about the reasons for the merger, and warnings issued to Massey's board about safety problems at Upper Big Branch before the disaster.

Court officials in West Virginia were withholding the documents this week, pending the filing of responses to the motion to seal the record and the motion for a preliminary injunction. Under new rules adopted by the court, documents that parties seek to file under seal are kept secret until the justices rule on the confidentiality request.

Justices have scheduled a private conference on Tuesday to discuss the case.

On Friday, lawyers for Massey filed a short response that supported keeping the records confidential, but said they also said they "may ultimately have no objection to unsealing some or all of the briefs and documents" in the case. "However, given the limited time frame involved, the respondents have not had an opportunity to thoroughly review the documents and other information submitted with the petitioners' Emergency Petition."

Massey's lawyers asked that the record remain sealed until 5 p.m. Tuesday to give them time to determine which documents they believe should remain sealed.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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