# Savoy v. Boston Private Financial Holdings, Inc.

> District Court, D. Massachusetts · August 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10200480

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200480

## How later opinions describe it (automated extraction)

- noting that the “misleading effect” of a company’s press release about an ISS recommendation “was dissipated and counteracted” by news articles that “supplied the ‘total mix’ of information that their press release omitted”
- holding that a reasonable shareholder voting on a proposal who had read both the proxy statement and the annual report would have received no indication that additional information was available in the 10- K report

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
)
RICHARD SAVOY, Individually and on )
Behalf of All Others Similarly Situated,)
)
Plaintiff, )
)
v. ) Civil Action
) No. 21-11537-PBS
BOSTON PRIVATE FINANCIAL HOLDINGS, INC.,)
et al., )
)
Defendants. )
________________________________________)

MEMORANDUM AND ORDER
August 26, 2022
Saris, D.J.
INTRODUCTION
Plaintiff brings a putative class action on behalf of himself
and all similarly situated former public shareholders of Boston
Private Financial Holdings, Inc. (“Boston Private” or the
“Company”) against Boston Private, its former Chief Executive
Officer Anthony DeChellis, and former members of Boston Private’s
Board of Directors for violations of Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934, 15 U.S.C. §§ 78n(a) and
78t(a), and United States Securities and Exchange Commission Rule
14a-9, 17 C.F.R. § 240.12a-9. Count I alleges that Boston Private’s
proxy solicitations regarding approval of its merger with SVB
Financial Group, Inc., (“SVB”) contain false or misleading
statements, omissions, and half-truths. Count II alleges that the
individual defendants are liable pursuant to Section 20(a) of the
Exchange Act.

Defendants moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) and the Private Securities Litigation Reform Act of 1995,
15 U.S.C. § 78u-4. After a hearing, the Court ALLOWS Defendants’
Motion to Dismiss (Dkt. 24).
FACTUAL BACKGROUND

The following facts are taken from the Complaint, the proxy
solicitations, and other communications referenced in the
Complaint.
I. The Merger Agreement

Boston Private was a publicly traded Massachusetts
corporation offering banking and wealth management services. In
October 2020, the Company stated in a press release that it
believed it was “well positioned for long-term success.” Dkt. 23
¶ 27. Its CEO, DeChellis, also stated in an earnings call that he
“remain[ed] optimistic about [Boston Private’s] momentum.” Id.
¶ 28.

On January 4, 2021, after a negotiation between SVB and the
Board of Directors, Boston Private and SVB announced they had
entered into an agreement and plan of merger pursuant to which
Boston Private would merge into SVB, with SVB continuing as the
surviving corporate entity. See Dkt. 26-2. The proposed merger
would award each Boston Private shareholder with $2.10 in cash and
.0228 shares of SVB common stock as consideration for each Boston
Private share, together worth $10.94 as of December 31, 2020.

II. The Proxy Battle
The next day, HoldCo Asset Management, LP, (“HoldCo”)1 the
Company’s fourth largest shareholder, issued two public letters
and press releases outlining its concerns with the proposed merger.
See Dkt. 23 ¶ 33; Dkt. 26-3. This set off a pitched proxy battle.

Boston Private filed its proxy statement with the SEC on March
18, 2021, see Dkt. 26-1, and mailed it to shareholders on March
19, 2021, id at 4. HoldCo filed its proxy statement on March 23,
2021, see Dkt. 26-4, which it supplemented with additional
soliciting material under Rule 14a-12 on March 25, 2021, see Dkt.
26-5. Boston Private filed a press release opposing HoldCo’s
solicitations on April 7, 2021. See Dkt. 26-6. Boston Private filed
an additional press release on April 14, 2021, touting the

recommendation of independent proxy advisory firm Institutional
Shareholder Services. See Dkt. 26-7. In response, HoldCo filed
additional soliciting materials the next day quoting cautionary

1 HoldCo, which owns approximately 4.9% of the Company’s shares, is not a party
to this action.
passages of the advisory recommendation. See Dkt. 26-8. In response
to eight civil lawsuits by shareholders, including one by Plaintiff
filed in New York in February 2021, see Dkt. 26-10, alleging Boston
Private’s proxy filings omitted various facts, Boston Private
filed a written communication pursuant to Rule 425 on April 16,
2021, with supplemental disclosures, see Dkt. 26-11. Savoy and the

other plaintiffs voluntarily dismissed their lawsuits in response
without asking the Court to require Boston Private to make
additional disclosures before the shareholder vote.
In essence, HoldCo contended that Boston Private did not
“conduct[] a competitive process to maximize value for
shareholders” and worried “the Board may have cut a deal that was
optimal for management but suboptimal for shareholders.” Dkt. 23
¶ 33. HoldCo contended that DeChellis had a conflict of interest.

As disclosed in the proxy, DeChellis had been offered a position
as co-head of SVB’s wealth management division, with a significant
pay increase.
On May 4, 2021, the merger was approved by approximately 89
percent of voting shares present. See Dkt. 26-9. The merger closed
on July 1, 2021.

III. Three Other Companies
Three companies other than SVB expressed interest in a
potential transaction with Boston Private. Immediately after the
announcement of the merger, First Foundation Wealth Management
(“FFWM”) CEO Scott Kavanaugh emailed HoldCo to inform it that he
“had been persistently calling Mr. DeChellis to pursue a dialogue
about a merger,” but was told “that the board had instructed him
to focus on getting the stock price higher and that they were not
interested in pursuing a sale.” Dkt. 23 ¶ 34. HoldCo included this

email in full in the public letter it sent to Boston Private and
made available to shareholders. See id. ¶ 34-35; Dkt. 26-3.
In its proxy, Boston Private disclosed that “[i]n August 2019,
Mr. DeChellis had preliminary discussions with the Chief Executive
Officer of a California-based bank holding company of similar size
to Boston Private,” but the Board “determined that the California-
based company was not a strong cultural or strategic fit for Boston
Private and that an acquisition of this company would not be

financially attractive or create meaningful value for Boston
Private shareholders.” Dkt. 26-1 at 59. The company (FFWM)
continued to reach out, but Boston Private “did not pursue further
discussions” because of the company’s size and financial profile
and “its expressed interest in being acquired by Boston Private at
a market premium.” Id.
The proxy further disclosed that the CEO of a second company,

“Company A,” a large bank holding company with a significant wealth
management business, requested a meeting with DeChellis and
discussed “a potential strategic transaction.” Id. at 61.
DeChellis “indicated that the Boston Private board regularly
reviews its strategic alternatives and considers any strategic
options that might enhance value for Boston Private’s
shareholders, and would evaluate any proposal it received, but
that the board was not specifically pursuing a sale of the company

at that time.” Id. The CEO reached out to Boston Private in
November 2020 through Morgan Stanley about a “strategic
transaction,” and DeChellis “noted that he would update the board
in the event any proposal or further inquiry were received from
Company A.” Id. at 63. The CEO of Company A called DeChellis in
December 2020 but told him “that Company A’s board of directors
had not authorized any proposal” although it “might consider a
valuation for Boston Private at a tangible book value multiple
corresponding to a general price range of around $10.50 per share.”
Id. at 64. Following this conversation, “no proposal or indication
of interest was ever provided by or on behalf of Company A.” Id.

Third, the proxy disclosed that the CEO “of a subsidiary of
a wealth management and investment banking firm contacted Mr.
DeChellis to inquire, on behalf of its parent company, whether
Boston Private might be interested in discussing a potential sale
at a valuation of up to a 20–25% premium to Boston Private’s then-
current stock price, which at that time was in the range of $5.50
per share.” Id. at 61. The CEO also reached out to the chairman of
the board of Boston Private. DeChellis “informed the Chief
Executive Officer that Boston Private was not interested in
pursuing a transaction at that price level.” Id. No further
inquiries were received from this company, nor any proposal.

HoldCo publicly criticized Boston Private in its proxy and
additional soliciting materials for failing to run a
comprehensive, competitive sale process, including “by negotiating
exclusively with only one party—SVB—despite reported inbound
interest from at least three other buyers.” Dkt. 26-5 at 5. HoldCo
noted that Company A “offered a higher price than what SVB was
offering at the time, yet [Boston Private] entered into an
exclusivity agreement with SVB on the very next day anyway.” Id.

In response to HoldCo’s accusations, Boston Private issued an
April 7 press release supplementing its proxy. The press release
argued, “A review of the inquiries from HoldCo’s three purported
potential buyers confirms that there was no credible reason for
Boston Private to affirmatively pursue further discussions with
any of these parties.” Dkt. 26-6 at 6. It reiterated that the
preliminary discussions with FFWM in 2019 “centered around an
acquisition by Boston Private of this counterparty . . . in which
Boston Private would be paying a premium,” and so “there was no

reason to engage in further discussions with this potential
counterparty.” Id. As to “Company A,” it reiterated that the
company had only “casually” approached Boston Private and
suggested, “subject to numerous contingencies, it might consider
a valuation at a tangible book value multiple in a general price
range of $10.50.” Id. And as to the subsidiary, Boston Private
reiterated that its suggested premium had an implied transaction
value of less than what SVB was proposing at the time, a price

that Boston Private had concluded was inadequate.
IV. The Independent Proxy Advisor Recommendation
On April 14, 2021, Boston Private issued a press release
announcing that independent proxy advisory firm Institutional

Shareholder Services (ISS) had recommended shareholders vote for
the merger, with DeChellis opining, “This recommendation
underscores that the transaction with SVB Financial is financially
and strategically compelling and provides the best path for
maximizing value for Boston Private shareholders.” Dkt. 26-7 at 2.
Boston Private did not make the report itself available to
shareholders.
The next day, HoldCo issued soliciting materials

characterizing the ISS report as “cautionary.” Dkt. 26-8 at 4
(“ISS’s rare ‘cautionary support’ recommendation for the Merger
gives significant credence to the concerns we have expressed.
Further, in its report ISS makes numerous points that would seem
to support a vote against the Merger.”). HoldCo quoted the report
extensively, most notably its conclusions:

Our analysis points to several conclusions: 1) Is the
deal opportunistic? Probably, as evidenced by the
valuation gap between the two companies when the deal
was struck. 2) Can the buyer afford to pay more, as the
dissident suggests? Most likely, given the size of the
transaction relative to SIVB’s market cap, the benefits
of the deal for the acquirer, and possible levers, such
[sic] the current lack of any TBV earnback period. 3) Is
the immediate downside risk of rejecting the deal
material? Probably not, as evidenced by the recent
appreciation of the index and relevant peers. Given
these factors, certain shareholders may opt to reject
the transaction as a limited-risk option to elicit an
improved offer.
Id.
V. The Fair Value of the Merger
DeChellis and SVB’s CEO began discussing a joint venture in
March 2020, and continued discussions privately through May 2020,
keeping others at Boston Private out of the talks until May 26,
2020, and not actually informing the Board until July 21, 2020.
The Board was informed about SVB’s interest not by DeChellis, but
by representatives of SVB conducting due diligence for a potential
transaction. Boston Private claims the Board then negotiated the
final price.
After a deal was struck, Boston Private’s proxy solicitations
focused on the nominal value of the merger, touting that “[t]he
Board negotiated to increase the value of the value of the merger
consideration from approximately $7.60 per Boston Private share to
$10.94 per Boston Private share.” Dkt. 23 ¶ 4.

But HoldCo publicly argued in its March 25 Proxy Amendment
that Boston Private had actually negotiated for lower
consideration, telling shareholders, “In early September 2020,
SVB’s offer implied an all-stock ratio of 0.0365 SVB shares per
BPFH share, more than 20% higher than the January 4, 2021 all-
stock exchange ratio of 0.0282.” Dkt. 26-5 at 5. HoldCo argued,
“SVB effectively used its increasing share price to reduce the
number of shares it would have to issue to BPFH shareholders.” Id.

Boston Private presented the merger as a “compelling
premium,” of 56 percent above the Company’s unaffected share price
before the announcement. Dkt. 23 ¶ 4. HoldCo disagreed. Its March
25 Proxy Amendment warned that Boston Private’s share price on the
day of the merger announcement, $8.39, represented “an 11% discount
to liquidation value and a 52% discount to the Company’s five-year
median tangible book value multiple of 1.84x, making it one of the
lowest valued banks of its size nationwide.” Dkt. 26-5 at 4. HoldCo
also argued that SVB’s stock was overvalued compared to historical
norms, citing SVB’s own filings to illustrate that SVB’s gains are
“volatile” in nature and “not necessarily indicative of [its]

expected performance in a future period.” Id. at 5. HoldCo opined,
“Therefore, the so-called premium SVB is offering BPFH
shareholders is nothing more than a mirage borne out of BPFH’s
pandemic stock underperformance.” Id. at 4. Boston Private
disparaged HoldCo’s opinions in a press release as “misguided” and
full of “sleights of hand.” Dkt. 26-6 at 10–11.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

A plaintiff bringing a private action arising under the
Securities Exchange Act must comply with the pleading requirements
of the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C.
§ 78u-4. In an action alleging misleading statements and omissions,
“the complaint shall specify each statement alleged to have been
misleading, the reason or reasons why the statement is misleading,
and, if an allegation regarding the statement or omission is made
on information and belief, the complaint shall state with

particularity all facts on which that belief is formed.” 15 U.S.C.
§ 78u-4(b)(8)(1). And “the plaintiff shall have the burden of
proving that the act or omission of the defendant alleged to
violate [the Securities Exchange Act] caused the loss for which
the plaintiff seeks to recover damages.” 15 U.S.C. § 78u-
4(b)(8)(4).

ANALYSIS
Plaintiff alleges the proxy statements contain half-truths
and material omissions.2 “To prevail on a claim under Section 14(a)
and Rule 14a-9, the plaintiff must prove a “misstatement or
omission was material” and “the proxy solicitation itself . . .
was an essential link in the accomplishment of the transaction”
that caused plaintiff’s injury. TSC Indus., Inc. v. Northway, Inc.,
426 U.S. 438, 444 (1976) (citing 17 C.F.R. § 240.14a-9). There is

“no need to demonstrate that the alleged defect in the proxy
statement actually had a decisive effect on the voting.” Id. A
misstatement or omission is “material” if there is “a substantial
likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered
the ‘total mix’ of information made available.” Id. at 449.
Materiality does not, however, “require proof of a substantial
likelihood that disclosure of the omitted fact would have caused
the reasonable investor to change his vote.” Id. The First Circuit
has explained, “As far as proxy statements are concerned . . .,
the federal purpose is served if the statement fully and fairly

2 Because this Court finds no material defect in the solicitations, it does not
reach the arguments on loss causation.
sets out such relevant and material facts as would enable a
reasonably prudent shareholder to make an intelligent decision as
to whether to grant the requested proxy or as to how he should
vote on the questions mentioned in the proxy statement.” Lessler
v. Little, 857 F.2d 866, 875 (1st Cir. 1988) (quoting Golub v. PPD
Corp., 576 F.2d 759, 762–63 (8th Cir. 1978)).

As a threshold matter, the parties dispute whether HoldCo’s
proxy solicitations can be considered part of the “total mix” of
information for the materiality analysis. The total mix of
information available to shareholders includes information outside
the proxy solicitations that was widely known in the market. See
Thant v. Karyopharm Therapeutics, Inc., __ F.4th __, 2022 WL
3134028 (1st Cir. August 5, 2022) (quoting Baron v. Smith, 380
F.3d 49, 57 (1st Cir. 2004) (“It is not a material omission to

fail to point out information of which the market is already
aware.”)); Backman v. Polaroid Corp., 893 F.2d 1405, 1420 (1st
Cir. 1990) (“[T]he reasonable investor would not consider withheld
information to be important if it were already widely known to the
market.”); Jackvony v. RIHT Fin. Corp., 873 F.2d 411, 415 (1st
Cir. 1989) (considering materiality in light of “general
knowledge” in the banking community that banking laws would soon
change).
The total mix of information available to a shareholder also
includes information outside of the proxy statement where the
information is already in the public domain and readily available
to shareholders. See United Food and Com. Workers Union Local 880
Pension Fund v. Chesapeake Energy Corp., 774 F.3d 1229, 1238 (10th
Cir. 2014) (holding that a Form 8-K was readily available on the

SEC website and a reasonable investor interested in a company’s
swap practices would know to look at prior 8-K disclosures). But
the investor needs to have had a reasonable basis to look for the
information in publicly available reports outside the proxy
statement before the outside information can be considered as part
of the total mix of information. United Paperworkers Int’l Union
v. Int’l Paper Co., 985 F.2d 1190, 1199 (2d Cir. 1993) (holding
that a reasonable shareholder voting on a proposal who had read
both the proxy statement and the annual report would have received
no indication that additional information was available in the 10-
K report).

Additionally, the “reasonable availability” of outside
information to investors does not include every piece of
information an investor could collect through effort—a board of
directors cannot, for example argue that shareholders should have
called the company and asked for additional information. See Shaev
v. Saper, 320 F.3d 373, 381 (3d Cir. 2003) (“That an investor could
hypothetically conduct research to clarify ambiguities and
discover omissions in the proxy statement does not relieve the
Board of its obligations under Rule 14a-9.”)

“While a proxy is not normally required to contain matter
contained in other materials which are furnished and which are
clearly referred to in the proxy, a company soliciting proxies may
not obviate violation of the disclosure requirements by referring
to materials furnished by its opponents in a proxy contest.”
Gladwin v. Medfield Corp., 540 F.2d 1266, 1270 (5th Cir. 1976)
(citing Kohn v. Am. Metal Climax, Inc., 458 F.2d 255, 265 (3d Cir.
1972), overruled on other grounds by Kershner v. Mazurkiewicz, 670
F.2d 440, 448 (3d Cir. 1982) (“[A]ny otherwise material violation
of the disclosure rules is not obviated by referring to materials
of an opposing soliciting party.”)).

Nevertheless, investors have been expected to have knowledge
of publicly available SEC filings since 1996 when the SEC required
domestic public companies to file electronically. Kaplan v. First
Hartford Corp., 447 F. Supp. 2d 3, 8 (D. Mass. 2006) (citing In re
Keyspan Corp. Sec. Litig., 383 F. Supp. 2d 358, 374 n.6 (E.D.N.Y.
2003)).

This dispute involves a contentious proxy battle in which
HoldCo and Boston Private were publicly engaged in debate. HoldCo’s
communications were referenced in the Boston Private
solicitations, were filed with the SEC, and were readily available
to shareholders through the EDGAR system on the SEC’s website. A
shareholder would be putting on blinders to not consider the
readily available information on the website that were at the heart
of the proxy fight. See In re Keyspan Corp. Securities Litig., 383
F. Supp. 2d 358, 373 (E.D.N.Y. 2003) (“[I]n today’s world it is
unrealistic to argue that documents available on the SEC website

are not readily accessible to the investing public.”); Lone Star
Steakhouse & Saloon, Inc. v. Adams, 148 F. Supp. 2d 1141, 1144 (D.
Kan. 2001) (“[T]he court deems any SEC filings distributed because
all filings are readily available to the public both through the
Internet and other media.”). In this setting, under the case law,
the publicly available communications from HoldCo are part of the
total mix of information available to the reasonable investor.
I. Statements about the Interest of Other Parties

Plaintiff accuses eight statements of being materially false
and misleading, three as to the interest of other parties:
I. That DeChellis and Boston Private had closed the
door on incoming interest from the CEO of First
Foundation Wealth Management (“First Foundation”),
because “Boston Private had previously determined that
such a transaction would not be financially attractive
or create meaningful value for Boston Private
shareholders, and that this company was not a strong
financial, cultural, or strategic fit for Boston Private
[and that] [a]ccordingly there was no reason to engage
in further discussions . . . .” Boston Private
Shareholder Letter & Proxy Solicitation, p. 4 (Apr. 7,
2021)
II. That First Foundation’s “apparent interest was in
being acquired by Boston Private,” rather than interest
in a dialogue about a merger. (Id.)
III. That “no . . . institution, other than SVB
Financial, ever submitted a proposal regarding a
potential acquisition or strategic business combination
to Boston Private.” Boston Private Definitive Proxy, p.
61 (Mar. 18, 2021).

Dkt. 23 ¶ 4. In essence, Plaintiff argues that these statements
omit the continued outreach from FFWM; omit that FFWM was
interested in a merger, not just an acquisition; and mislead as to
why there were no proposals, given that DeChellis impeded such
proposals by refusing to seriously engage with other interested
institutions.
As outlined above, Boston Private disclosed the facts of its
interactions with all three companies. In fact, the proxy
explicitly disclosed FFWM’s continued outreach. See Dkt. 26-1 at
59 (“The California-based company’s Chief Executive Officer
continued to periodically reach out to Mr. DeChellis from time to
time in an effort to gauge whether Boston Private’s views towards
a transaction might have changed.”). And even if Kavanaugh’s email
about his interest in a “merger” could be interpreted to express
interest in more than just being acquired by Boston Private, Boston
Private’s statement that he was primarily interested in the
acquisition did not change the total mix of information,
particularly given that HoldCo had made the email available to
shareholders. Shareholders could interpret the email themselves.
And the proxy disclosed that DeChellis told the companies that
Boston Private was not interested. See, e.g., Dkt. 26-1 at 61
(noting that DeChellis said “that the board was not specifically
pursuing a sale of the company at that time”).

Plaintiff is unpersuasive in arguing that these disclosures,
or lack thereof, misleadingly painted the three parties as
unserious in their offers. The total mix of information available
to shareholders, largely through Boston Private’s own proxy
solicitations, was sufficient to allow shareholders to reach their
own conclusions. See New England Anti-Vivisection Soc., Inc. v.
U.S. Surgical Corp., Inc., 889 F.2d 1198, 1202 (1st Cir. 1989)
(“[F]ederal law is satisfied as long as the proxy materials fully
and fairly set forth the relevant and material facts from which a

reasonable shareholder may draw his own conclusions as to how to
vote.”). “Fair accuracy, not perfection, is the appropriate
standard.” Id. (quoting Kennecott Copper Corp. v. Curtiss-Wright
Corp., 584 F.2d 1195, 1200 (2d Cir. 1978)).
II. Statements about the Proxy Advisor Recommendation

Plaintiff accuses two statements of being materially false
and misleading as to the third-party proxy advisor recommendation:
IV. That the independent proxy advisory company
Institutional Shareholder Services had “recommend[ed]
that Boston Private shareholders support the
recommendation of [Boston Private’s] Board and vote in
favor of the merger with SVB Financial.” Boston Private
Press Release & Proxy Solicitation (Apr. 14, 2021)
V. That ISS’s report “underscore[d] that the
transaction with SVB Financial [was] financially and
strategically compelling and provide[d] the best path
for maximizing value for Boston Private shareholders.”
(Id.)
Dkt. 23 ¶ 4. Plaintiff argues that Defendant’s nondisclosure
of ISS’s negative observations was unlawful.
Plaintiff argues that once Defendants touted the
positive recommendation, they were required to disclose the
negative observations within the recommendation. The claim
that Boston Private’s description of the ISS recommendation
was a half-truth is plausible. However, HoldCo made the
negative observations available to shareholders, and they
were part of the total mix of information available to
shareholders during the proxy battle. Cf. Burkle v. OTK
Associates, LLC, 2 F. Supp. 3d 519, 524 (S.D.N.Y. 2014)
(noting that the “misleading effect” of a company’s press
release about an ISS recommendation “was dissipated and
counteracted” by news articles that “supplied the ‘total mix’
of information that their press release omitted”).
III. Statements about the Fair Value of the Merger
Plaintiff accuses three statements of being materially false
and misleading as to the fair value of the merger:
VI. That “[t]he Board negotiated to increase the value
of the merger consideration from approximately $7.60 per
Boston Private share to $10.94 per Boston Private share
at the date of announcement of the transaction[.]”
Boston Private Shareholder Letter & Proxy Solicitation,
p. 4 (Apr. 7, 2021)
VII. That the merger provided shareholders a “compelling
premium” that had “substantially increased since
[December 31, 2020] as a result of the appreciation of
SVB Financial’s share price, [. . .] corresponding to a
56% premium to Boston Private’s unaffected share price
as of immediately prior to announcement[.]” (Id.)
VIII. That “[t]he Board believe[d] that the transaction
with SVB Financial provide[d] substantially higher and
more certain value to Boston Private shareholders than
the company’s available alternatives.” (Id.).
Dkt. 23 ¶ 4. Plaintiff argues that these statements mislead by
focusing on the nominal value and omitting the fact that the
implied exchange ratio decreased over the course of negotiations.
In Plaintiff’s view, the exchange ratio was not fair because Boston
Private and SVB stocks were under- and over-valued, respectively.
As to the alleged omissions, again, the Court need not parse
whether, as Defendants argue, the drop in exchange ratio was a
“conclusion [that] is obvious to anyone conversant with elementary
mathematics.” Data Probe Acquisition Corp. v. Datatab, Inc., 722
F.2d 1, 5 (2d Cir. 1983). Once again, additional disclosure would
not have altered the total mix of information available to
shareholders; HoldCo had already made the exchange ratio public
knowledge, along with its calculations of both companies’ actual
values. While shareholders might give more weight to the opinions
of the Board, which owes them a fiduciary duty, the facts
underlying HoldCo’s opinions, released to shareholders, were
already reasonably likely to be considered by shareholders. There
was no material omission or misrepresentation as to the sixth and
seventh statements.

With respect to the eighth statement, Plaintiff argues
Defendants did not genuinely believe this was the best option,
highlighting that DeChellis and the Board had previously touted
the Company’s financial performance and prospects and that the ISS
evaluation cautioned that a higher price likely could have been
achieved. He points out that DeChellis rebuffed outside interest
because he stood to personally gain from a deal with SVB. Here,
the question is of subjective sincerity:

For a statement of opinion, the plaintiff must plead
that the statement falsely represented the speaker's
belief at the time it was made (i.e., that the speaker
did not sincerely believe the statement) and that it was
untrue; that a statement of fact embedded within the
opinion is untrue; or that the speaker omitted material
facts that would make the statement misleading to a
reasonable investor.
Miller Investment Trust v. Morgan Stanley & Co., LLC, 308 F. Supp.
3d 411, 429 (D. Mass. 2018) (citing Omnicare, Inc. v. Laborers
Dist. Council Const. Ind. Pension Fund, 5757 U.S. 175, 189–92
(2015)). Plaintiff has not stated a plausible claim that the Board
or DeChellis did not sincerely believe the SVB deal was the best
option available to Boston Private—the evidence it cites does not
plausibly belie the sincerity of the belief.
ORDER
After hearing, for the reasons stated above, the Court ALLOWS

Defendants’ Motion to Dismiss (Dkt. 24).
SO ORDERED.

/s/ PATTI B. SARIS
Patti B. Saris
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200480. Public record. Not legal advice.