northern district of texas dallas division case no. 3:19 ... · case 3:19-cv-01224-b document 51...

OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TEXAS PACIFIC LAND TRUST and, solely in their respective capacities as trustees for Texas Pacific Land Trust, DAVID E. BARRY and JOHN R. NORRIS III,

Plaintiffs,

v. ERIC L. OLIVER,

Defendant.

and ERIC L. OLIVER, SOFTVEST, L.P., HORIZON KINETICS LLC, and ART-FGT FAMILY PARTNERS LIMITED,

Counterclaim Plaintiffs,

v.

DAVID E. BARRY and JOHN A. NORRIS III, in their individual capacities and in their capacities as trustees for the Texas Pacific Land Trust,

Counterclaim Defendants.

§ § § § § § § § § § § § § § § § § § § § § § § § § § § §

Case No. 3:19-CV-01224-B

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION FOR

JUDGMENT ON THE PLEADINGS

Case 3:19-cv-01224-B Document 51 Filed 07/15/19 of 54 PageID 2059

Case 3:19-cv-01224-B Document 51 Filed 07/15/19 Page 1 of 54 PageID 2059

OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION i

TABLE OF CONTENTS

I. PRELIMINARY STATEMENT .........................................................................................1

II. RELEVANT FACTUAL BACKGROUND ........................................................................4

A. The Trustees’ Powers and Obligation to Evaluate Nominees .................................4

B. The Contested Trustee Election ...............................................................................5

C. The Trust’s Postponement of The Special Meeting .................................................7

D. Defendant Refuses To Provide Meaningful Disclosures Necessary for a Fully-Informed Shareholder Vote ......................................................................................8

E. Defendant’s Material Misstatements And Omissions ..............................................9

F. Defendant’s Counterclaims and Motion ..................................................................9

III. ARGUMENT AND AUTHORITIES ................................................................................10

A. Defendant’s Motion Is Premature ..........................................................................11

B. Plaintiffs Have Adequately Pled That Defendant Violated Section 13(d) ............12

1. Plaintiffs Have Adequately Pled the Existence of an Undisclosed Group 12

2. Pleading Irreparable Harm Is Unnecessary, but Plaintiffs Have Done So 15

C. Plaintiffs Have Adequately Pled That Defendant Violated Section 14(a) .............17

1. Defendant Ignores And Therefore Concedes, For Purposes Of This Motion, Several Material Misstatements And Omissions .........................17

2. Plaintiffs Adequately Plead Defendant’s Material Misstatements and Omissions ...................................................................................................18

a. Misstatements and Omissions about the Trust’s Interactions with the Dissident Group .......................................................................18

b. Misstatements and Omissions about the Trust’s Activities ...........22

c. Misstatements and Omissions about the Proxy Vote .....................24

d. Misstatements And Omissions Concerning the Trust’s Structure .25



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION ii

e. Misstatements and Omissions about the Selection of General Cook ...............................................................................................28

f. Misstatements and Omissions that Improperly Impugn the Trustees and Trust Management’s Character, Integrity, and Personal Reputation ......................................................................................28

g. Misstatements and Omissions about the Dissident Group’s Background, Conduct and Future Plans.........................................30

D. Plaintiffs Have Standing To Pursue Their Section 14(a) Claim ............................32

E. Defendant Has Not “Mooted” Plaintiffs’ Claims by Publicly Filing the Complaint ...............................................................................................................34

CONCLUSION ..............................................................................................................................35



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION iii

TABLE OF AUTHORITIES

Page(s)

Cases

21st Century Ins. & Fin. Serv., Inc. v. Tex. Specialty Risk Programs, Inc., No. 3:10-cv-2076-M, 2011 WL 1869433 (N.D. Tex. 2011) ...................................................12

7547 Corp. v. Parker & Parsley Dev. Partners, L.P., 38 F.3d 211 (5th Cir. 1994) ...............................................................................................33, 37

Ameribanc Investors Grp. v. Zwart, 706 F. Supp. 1248 (E.D. Va. 1989) .........................................................................................33

Arvin Indus. v. Wanandi, 722 F. Supp. 532 (S.D. Ind. 1989) ...........................................................................................35

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................10

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................10

Boyd v. Dallas Indep. Sch. Dist., No. 3:08-cv-0426-M (BF), 2009 WL 159243 (N.D. Tex. Jan. 21, 2009) ...............................10

Caiola v. Citibank, N.A., 295 F.3d 312 (2d Cir. 2002)...............................................................................................19, 29

CSX Corp. v. Children’s Inv. Fund Mgmt. (UK) LLP, 654 F.3d 276 (2d Cir. 2011).....................................................................................................14

Finley v. Wash. Mut. Bank, F.A., No. 4:07cv225, 2008 WL 686573 (E.D. Tex. Mar. 10, 2008) .................................................11

Forgent Networks, Inc. v. Sandberg, No. A-09-CA-499-LY, 2009 WL 2927015 (W.D. Tex. Aug. 27, 2009) .................................16

Forward Indus., Inc. v. Wise, No. 14-cv-5365 (JSR), 2014 WL 6901137 (S.D.N.Y. Sept. 23, 2014) ...................................14

In re Fossil, Inc., 713 F. Supp. 2d 644 (N.D. Tex. 2010) ....................................................................................17

GAF Corp. v. Milstein, 453 F.2d 709 (2d Cir. 1971)...............................................................................................13, 16



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION iv

Gladwin v. Medfield Corp., 540 F.2d 1266 (5th Cir. 1976) ...........................................................................................27, 29

Gould v. Am. Hawaiian S.S. Co., 331 F. Supp. 981 (D. Del. 1971) ..............................................................................................24

Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177 (5th Cir. 2007) .......................................................................................10, 25, 28

Hollywood Casino Corp. v. Simmons, No. 3:02-CV-0325-M, 2002 WL 1610598 (N.D. Tex. July 18, 2002) ..............................13, 14

Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719 (5th Cir. 2018) ...................................................................................................32

Int’l Jensen Inc. v. Emerson Radio Corp., 96 C 2816, 1997 WL 43229 (N.D. Ill. Jan. 24, 1997) .......................................................33, 34

Isquith v. Middle S. Util., Inc., 847 F.2d 186 (5th Cir. 1988) .............................................................................................30, 31

KBR v. Chevedden, 478 Fed. App’x 213 (5th Cir. 2012) ........................................................................................33

Leon Tempelsman & Son v. TECC Corp., 107 F.R.D. 384 (N.D. Tex. 1985) ............................................................................................32

Lone Star Steakhouse & Saloon, Inc. v. Adams, 148 F. Supp. 2d 1141 (D. Kan. 2001) ......................................................................................24

Marshall Field & Co. v. Icahn, 537 F. Supp. 413 (S.D.N.Y. 1982)...........................................................................................16

MDI, Inc. v. McCann, No. SA -08-CA00773, 2008 WL 11334002 (W.D. Tex. Nov. 20, 2008) ................................16

Meridian OHC Partners, LP v. Davis, No. 16-cv-01161, 2018 WL 1368266 (D. Nev. Mar. 15, 2018) ..............................................35

Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct. 1318 (2015) .......................................................................................................22, 30

Priester v. Long Beach Mortg. Co., No. 4:16-cv-449, 2017 WL 835074 (E.D. Tex. Mar. 3, 2017) ................................................10

Ramirez v. Exxon Mobil Corp., 334 F. Supp. 3d 832 (N.D. Tex. 2018) ....................................................................................22



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION v

S.E.C. v. Shapiro, No. 4:05cv364, 2007 WL 788335 (E.D. Tex. Mar. 14, 2007) .................................................20

Sodhi v. Gentium S.p.A., 14-CV-287 JPO, 2015 WL 273724 (S.D.N.Y. Jan. 22, 2015).................................................34

Studebaker Corp. v. Gittlin, 360 F.2d 692 (2d Cir. 1966)...............................................................................................33, 34

Tap Acquisition, Inc. v. Vianet Grp. PLC, 14-CV-360, 2016 WL 8674576 (N.D. Tex. Oct. 14, 2016) (Boyle, J.) ...................................11

Taro Pharm. Indus. v. Sun Pharm. Indus., No. 09 Civ. 8262 (PGG), 2010 WL 2835548 (S.D.N.Y. July 13, 2010) .................................34

Treadway Cos., Inc. v. Care Corp., 490 F. Supp. 660 (S.D.N.Y. 1980)...........................................................................................16

TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438 (1976) .....................................................................................................15, 17, 20

Ward v. Am. Red Cross, No. 3:13-cv-1042-L, 2013 WL 2916519 (N.D. Tex. June 14, 2013) ......................................11

Warner Commn’s, Inc. v. Murdoch, 581 F. Supp. 1482 (D. Del. 1984) ......................................................................................34, 35

Waste Connections, Inc. v. Chevedden, 554 F. App’x 334 (5th Cir. 2014) ............................................................................................33

Woodward & Lothrop, Inc. v. Schanbel, 593 F. Supp. 1385 (D.D.C. 1984) ............................................................................................16

Statutes/Rules

17 C.F.R. § 240.14a-9 ....................................................................................................................24

15 U.S.C. § 78m(d)(1) .............................................................................................................13, 15

15 U.S.C. § 78m(d)(3) ...................................................................................................................12

15 U.S.C. § 78u-4 ..........................................................................................................................11

Fed. R. Civ. P. 5 .............................................................................................................................37

Fed. R. Civ. P. 12(c) .............................................................................................................. passim

Fed. R. Civ. P. 15 ...........................................................................................................................35



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION vi

Fed. R. Civ. P. 15(a)(2) ..................................................................................................................33

Fed. R. Civ. P. 12(b)(6)..............................................................................................................9, 10

Fed. R. Civ. P. 13 ...........................................................................................................................32

Fed. R. Civ. P. 24(b) ......................................................................................................................33

Fed. R. Civ. P. 26(f) .......................................................................................................................11

Fed. R. Evid. 201 .............................................................................................................................4



OPPOSITION TO DEFENDANT’S RULE 12(c) MOTION 1

I. PRELIMINARY STATEMENT

Texas Pacific Land Trust (the “Trust” or “TPL”) is one of the largest landowners in

Texas with approximately 900,000 acres of land, primarily located in the Permian Basin. For

much of its 131-year history, the Trust has outperformed its peers in earnings and regularly

returns massive profits to shareholders in annual dividends and share repurchases. The Trust has

generated total shareholder returns of 475% during the five-year period ending March 15, 2019,

the date on which Eric L. Oliver (“Defendant”) and his group launched its proxy contest, and

3,856%, during the ten-year period ending on that same date.

The Trust was formally created pursuant to a Declaration of Trust dated February 1, 1888

(the “DOT”). The DOT provides for three trustees elected by shareholders. Each of the trustees

is to serve until death, disqualification, or resignation, whereupon the remaining trustees call a

meeting to elect a replacement. On February 25, 2019, one of the three trustees resigned from

his position for health reasons, passing away a few weeks later. After this resignation, the Trust

and its two remaining trustees (David E. Barry and John R. Norris III, and collectively with TPL,

“Plaintiffs”) began the process of identifying a replacement trustee—a critical decision given that

trustees serve for life. During this process, Defendant was proposed as a candidate. Plaintiffs

declined this suggestion based on, among other things, serious concerns related to Defendant’s

lack of business judgment, as well as potential conflicts of interest and indicia of self-dealing

related to Defendant’s track record at other companies. Despite these misgivings, a group of

shareholders nominated Defendant to the vacancy on their own.

Following his nomination, Defendant embarked on a multi-month campaign of

misinformation designed to cause shareholders to vote for him under false pretenses. His

campaign has included repeated distributions of proxy solicitation materials that violate the




Securities Exchange Act of 1934 (the “Exchange Act”). Defendant’s attempts to mislead

shareholders violate federal securities laws, and in order to allow for the fully informed

shareholder vote that Defendant claims to seek, Defendant must issue corrective disclosures.

Thus far, however, Defendant has refused to correct his misstatements and omissions or

to provide answers to a basic candidate questionnaire completed by the other nominees, so that

shareholders can evaluate his candidacy to serve as a trustee for life. Rather than transparently

engage with shareholders during the proxy campaign, Defendant sought to disenfranchise the

millions of shareholders who had yet to cast a proxy ballot by improperly holding a sham

“shareholder meeting” on May 22, 2019 to install himself as a trustee. Defendant provided no

notice of this “meeting,” and the Trust had already notified shareholders that a shareholder

meeting previously scheduled for that date would be adjourned without conducting business, and

later informed shareholders that the meeting was postponed until further notice by the Trust.

Defendant’s latest effort—his motion for judgment on the pleadings pursuant to Rule

12(c) of the Federal Rules of Civil Procedure (the “Motion”)—is nothing more than a

procedurally improper tactic to delay the discovery that will prove Defendant’s misconduct.1

Rule 12(c) provides, on its face, that a motion for judgment on the pleadings may be filed only

after pleadings are closed. The pleadings are not closed as a matter of law—Plaintiffs have not

yet answered Defendants’ counterclaims. This basis alone warrants dismissal of the Motion.

The Motion also fails on the merits. Plaintiffs have presented over 100 paragraphs of

detailed factual content which allege that Defendant’s conduct during the proxy contest

repeatedly violated the Exchange Act. First, Plaintiffs have presented detailed allegations

concerning the relationships between Defendant and undisclosed group members Santa Monica

1 Immediately upon filing the Motion, Defendant insisted that discovery be stayed pursuant to the Private Securities Litigation Reform Act.




Partners, L.P. (“Santa Monica”) and Universal Guaranty Life Insurance Company (“UGLIC”),

including Defendant’s failure to disclose the existence of these “hidden” participants in his proxy

campaign, which sufficiently show that Defendant violated Section 13(d) of the Exchange Act.

Second, Plaintiffs allege that Defendant violated Section 14(a) of the Exchange Act on

numerous occasions. As an initial matter, Defendant’s Motion does not address, and therefore

concedes, the following violations: (i) Defendant misleadingly disclosed to shareholders

settlement communications between the Trustees and Defendant that omitted the very first line

of the communication, which stated that the email was “Subject to Settlement

Privilege/Confidential” (Compl. ¶ 62); (ii) Defendant falsely told shareholders that a presentation

by the Trust highlighted several wells “in the wrong location, some by more than 20 miles, with

one well listed in the wrong county,” to misleadingly imply a lack of competency among the

Trust’s leadership (id. ¶ 66); and (iii) Defendant told shareholders that the Trust should be

converted to a Delaware corporation based on Defendant’s statement that “there is no precedent

whatsoever for a company engaged in these active business activities to be structured as a

business trust,” a statement flatly contradicted by the over 130 years of continuous business

operations enjoyed by the Trust (id. ¶ 75).2 Further, Defendant’s arguments concerning his

other Section 14(a) violations fall entirely flat or involve factual disputes that cannot be resolved

on the pleadings.

Third, Defendant asserts that Plaintiffs lack standing to bring a Section 14(a) claim

despite Fifth Circuit law recognizing issuer standing to seek, as here, declaratory relief.

Finally, while Defendant contends he mooted Plaintiffs’ claims by disseminating

Plaintiffs’ Complaint to shareholders, Defendant fails to provide a single case supporting his

2 References to “Complaint” and citations to “Compl.” refer to the First Amended Complaint, filed on May 22, 2019 (Dkt. 15).




contention. Defendant is wrong and he must promptly issue corrective disclosures so

shareholders will be fully informed. In short, it is apparent that Defendant filed his Motion to

delay discovery so that he can continue to bar shareholders from receiving full and accurate

information regarding his candidacy for trustee; his Motion should be denied in its entirety.

II. RELEVANT FACTUAL BACKGROUND3

A. The Trustees’ Powers and Obligation to Evaluate Nominees

Under the DOT, the trustees have “all the powers in respect of said property of an

absolute owner, as to selling, granting, leasing, alienating, improving, encumbering, or otherwise

disposing of the same . . . .” Compl., Ex. A at FIRST. The Trust currently is managed by two

trustees: Plaintiffs Barry and Norris (the “Trustees”). Compl. ¶ 19. A previous third trustee,

Maurice Meyer III, resigned for health reasons on February 25, 2019, creating a vacancy. Id.4

Under the DOT, the Trust’s corporate governance policies, and common law, the

Trustees are obligated to ensure that candidates have, among other qualities, the experience,

integrity, and capabilities necessary to serve as trustee. Compl. ¶ 22. This is of particular

importance for the Trust because, unlike directors of a corporation, a trustee serves for life. Id.

¶ 18. Long before the events giving rise to this action, the Trust established the Nominating,

Compensation and Governance Committee, whose charter states that the Trustees’ “duties and

responsibilities” include “[t]he identification and recommendation . . . of individuals qualified to

become or continue as Trustees . . .” Id. ¶ 24. The Trustees have “authority to conduct any and

all investigations [they] deem[] necessary or appropriate . . . .” Id.

3 In conjunction with the Motion, Defendant also requests that the Court take judicial notice of over 50 documents pursuant to Rule 201 of the Federal Rules of Evidence. For the reasons set forth in Plaintiffs’ Memorandum in Opposition to Defendant’s Motion Requesting Judicial Notice in Support of his Motion for Judgment on the Pleadings, filed contemporaneously with this motion and fully incorporated by reference herein, this request is improper and Plaintiffs respectfully request that the Court deny Defendant’s request in part as stated therein. 4 Mr. Meyer passed away on March 24, 2019. Compl. ¶ 25.




B. The Contested Trustee Election

Following Mr. Meyer’s resignation as trustee, Defendant was suggested as a nominee for

the vacant trustee position, and was supported by Murray Stahl, the CEO and Chairman of

Horizon Kinetics, LLC, SoftVest, L.P., SoftVest Advisors, LLC, ART-FGT Family Partners

Limited, Allan R. Tessler, the Tessler Family Limited Partnership, Defendant, Horizon Asset

Management, LLC, Kinetic Advisers, LLC, Kinetics Asset Management, LLC, and Horizon

Kinetics LLC (together, the “Dissident Group”). Id. ¶¶ 25, 27-28; Dkt. 21-3 at 200. Consistent

with their obligations, the Trustees reviewed Defendant’s résumé, credentials, and past

interactions with the Trust in good faith. Id. ¶ 26. Based on their review, the Trustees

determined that it would not be in the best interests of the Trust or its shareholders to nominate

Defendant. Id. The Trustees instead chose to nominate another candidate for trustee, Preston

Young. Id.

On March 15, 2019, the Dissident Group formally nominated Defendant for election as

trustee. Id. ¶ 27. Subsequently, the Trustees and the Trust’s management team had several

discussions with Mr. Stahl about identifying a new compromise candidate. Id. ¶ 28. Based on

concerns expressed by Mr. Stahl and other shareholders regarding Mr. Young’s age and

experience with corporate governance issues, the Trustees decided to consider replacing Mr.

Young with a different candidate. Id. ¶ 28. To that end, the Trustees engaged Spencer Stuart, a

leading global executive and board director search firm; who provided more than 15 candidates

for consideration. Id. ¶ 29. In addition, the Trustees asked the Trust’s financial and legal

advisors for recommendations, with a particular focus on candidates with significant corporate

governance experience. Id.

Despite the Trustees’ extensive efforts to identify a highly qualified compromise

candidate, Mr. Stahl reneged on his previous promise to consider such a candidate, and on April




6, 2019, informed the Trustees that he would refuse to consider a candidate other than

Defendant. Id. ¶ 32. On April 7, 2019, following a thorough review of potential candidates

suggested by Spencer Stuart and the Trust’s other advisors, the Trustees selected General Donald

G. Cook, a retired four-star General of the United States Air Force. Id. ¶ 33. General Cook’s

board and corporate governance experience is extensive. Id. ¶ 34. Moreover, to aid the

Trustees’ assessment of his qualifications and to identify any potential conflicts of interest,

General Cook provided substantial disclosures and responses to a trustee questionnaire (also

completed by Mr. Young). Id. ¶ 35. The Trustees determined that General Cook met the trustee

qualifications. Id.

Additionally, three independent proxy advisory firms—ISS, Glass Lewis, and Egan-

Jones—strongly recommended that shareholders vote for General Cook over Defendant, in part

because of General Cook’s “exemplary leadership and corporate governance skills” as well as

his “efforts to improve the governance of the companies on whose boards he has served.” Id.

¶ 36.; see also id. Exs. C-E. ISS, Glass Lewis, and Egan-Jones, to whom most institutional

investors look for guidance on voting, help shareholders sort through the many claims and

counterclaims of a contested election like this one and provide the perspective of neutral,

independent experts. Id. ¶ 36. These firms engaged in extensive evaluations of the performance

of the Trust and its current management as well as the qualifications of the two nominees. Id.

The Trust originally scheduled a special meeting for May 8, 2019 (the “Special

Meeting”), during which shareholders would vote to fill the trustee vacancy. Id. ¶ 37. However,

following receipt of Defendant’s nomination on March 15, the Special Meeting was postponed

until May 22, 2019 (to allow for distribution of proxy materials). Id. On April 30, 2019, to

address shareholder concerns regarding the trustees’ life tenure, General Cook announced his




willingness to resign as trustee, if elected, after no more than three years following his election

(Defendant has not made the same commitment). Id. ¶ 38. Subsequently, the U.S. Securities and

Exchange Commission (“SEC”) advised the Trust that General Cook’s commitment may have

constituted a “fundamental change,” which would require the filing and mailing of a formal

supplement to the Trust’s proxy statement. Id. ¶ 39. To provide the shareholders with sufficient

time to review the proxy supplement, the Trust publicly announced on May 8, 2019 that it would

convene the Special Meeting as scheduled on May 22, but then adjourn it, without conducting

any business, until June 6, 2019. Id. ¶ 40. Accordingly, as early as May 8, 2019, shareholders

were aware that no meeting would occur on May 22, 2019, and that no election would be held

until, at least, June 6, 2019.

C. The Trust’s Postponement of The Special Meeting

On May 21, 2019, given Defendant’s numerous material misstatements and omissions in

his proxy solicitation materials (detailed below), the Trust and Trustees filed the Original

Complaint in this action. The Trust also notified shareholders that the June 6, 2019 Special

Meeting would be postponed until after Defendant provided the necessary corrective disclosures

to allow for a fully informed shareholder vote. Compl. ¶ 45. Nonetheless, on May 22, 2019,

Defendant purported to hold a “meeting” for a small group of shareholders in a different location

than was previously announced by the Trust (the “Invalid Meeting”). Id. ¶ 48. The Invalid

Meeting was not attended by the Trustees; they learned about it only after the fact. Id. Not only

did Defendant fail to provide notice of his Invalid Meeting to all shareholders, but Defendant

also conducted his Invalid Meeting as the purported “chairman” of the meeting and held a sham

“vote” to claim that he had installed himself as a purported lifetime trustee. Id. ¶ 51. At the

Invalid Meeting, several shareholders questioned Defendant’s conduct, including why he refused

to complete the trustee questionnaire. Id. ¶ 53. Defendant declined to address these concerns




and his attorneys, who were present at the Invalid Meeting, instructed shareholders that they

could not ask questions until after a “vote” was taken to elect a chairperson for Defendant’s

Invalid Meeting. Id. Less than half of the shares were present at the Invalid Meeting in person

or by proxy. Id. at ¶¶ 48, 52. No independent elections inspector was present at the Invalid

Meeting. Id. The invalidity of Defendant’s purported meeting is at issue in this case, but is not

addressed in the Motion.5

D. Defendant Refuses To Provide Meaningful Disclosures Necessary for a Fully-Informed Shareholder Vote

Defendant has not provided meaningful disclosures to the Trust or its shareholders. Id.

¶ 41. On March 28, 2019, the Trustees sent Defendant the same questionnaire provided to, and

completed by, both Mr. Young and Mr. Cook. Id. The questionnaire sought to explore

Defendant’s background, business interests, and potential or actual conflicts. Id.

Defendant provided only a résumé to the Trustees. Id. ¶ 42. This minimal disclosure left

the Trustees (and shareholders) with more questions than answers, especially given information

concerning conflicts of interest and other issues regarding Defendant’s background and business

dealings that the Trustees subsequently discovered. Id. The Trustees provided Defendant with

multiple opportunities to address these concerns, including (among others) that (i) Defendant

appeared to have misrepresented his prior company board experience; (ii) Defendant and his

family own a significant number of oil and gas interests, at least some of which are located in the

Permian Basin, which may either compete with or be in a position to profit from the activities of

the Trust; and (iii) Defendant’s prior board experience included significant potential governance

5 However, it is the subject of Counter-Plaintiffs’ Motion for a Declaratory Judgment and Preliminary Injunction. Dkt. 36. This filing provides a striking example of the gamesmanship displayed by Defendant as he seeks to preclude Plaintiffs from needed discovery through the filing of this motion, while at the same time, relying on evidence under the Counter-Plaintiffs’ control to seek a final judgment on the merits of his claim for declaratory relief (the mirror image of Plaintiffs’ own request for a declaratory judgment).




issues related to possible self-dealing.6 See, e.g., id. ¶ 43a-h. Certain shareholders at

Defendant’s Invalid Meeting raised these issues to Defendant—but he declined to address their

concerns prior to (and even following) the sham vote. Id. ¶ 53. Accordingly, Plaintiffs allege

that Defendant has made material and misleading representations in violation of the Exchange

Act.

The Trustees also have expressed to Defendant their concern about his failure to disclose

the Dissident Group’s hidden partnership with Santa Monica and UGLIC, in violation of

Sections 13(d) and 14(a) of the Exchange Act. Id. ¶ 43d-e.

E. Defendant’s Material Misstatements And Omissions

On May 22, 2019, Plaintiffs filed the Complaint to address Defendant’s Invalid Meeting

as well as the numerous misstatements and omissions detailed above. Those misstatements and

omissions are contained within the Defendant’s definitive proxy statement (the “Proxy”), as well

as press releases, videos, letters, and presentations, which are publicly filed as proxy solicitation

materials. Id. ¶ 56. Plaintiffs also believe that Defendant secretly disseminated additional proxy

solicitation materials to select shareholders, without filing them with the SEC as required by

Section 14(a). Id. ¶ 43(g). Plaintiffs seek to compel Defendant to correct these material

misstatements and omissions so that all shareholders have the opportunity to vote for a trustee on

a fully informed basis. As discussed below, Plaintiffs have more than adequately stated their

claims.

F. Defendant’s Counterclaims and Motion

Defendant did not move to dismiss Plaintiffs’ claims pursuant to Rule 12(b)(6),

6 In recommending that the Trust’s shareholders vote for General Cook rather than Defendant, Egan-Jones (one of the independent proxy advisory firms which evaluated the respective trustee candidates) also noted its concern that Defendant’s “election to the Board poses potential conflict of interests, [and] non-independent judgment due to Mr. Oliver’s undisclosed affiliations, which are detrimental to the best interests of the Company and its shareholders.” Compl. ¶ 42; see also id., Ex. C (emphasis added).




effectively acknowledging that Plaintiffs have adequately pled their claims. Rather, on May 28,

2019, Defendant filed an Answer and, purporting to join several members of his Dissident

Group, asserted various contrived counterclaims against Plaintiffs.7 Dkt. 17. Before Defendant

filed his Rule 12(c) motion, Plaintiffs informed Defendant that they intended to file a motion to

dismiss the counterclaims under Rule 12(b)(6). Nonetheless, prior to the close of the pleadings,

and in contravention of the plain language in Rule 12(c), Defendant filed the instant motion for

judgment on the pleadings. As set forth below, Defendant’s motion is untimely, without merit,

and should be denied.

III. ARGUMENT AND AUTHORITIES

“Rule 12(c) motions are disfavored and rarely granted in this Circuit.” Priester v. Long

Beach Mortg. Co., No. 4:16-cv-449, 2017 WL 835074, at *4 (E.D. Tex. Mar. 3, 2017); Boyd v.

Dallas Indep. Sch. Dist., No. 3:08-cv-0426-M (BF), 2009 WL 159243, at *1 (N.D. Tex. Jan. 21,

2009) (same). “The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6)

motion to dismiss.” Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007).

Accordingly, to survive a Rule 12(c) motion, a plaintiff need only plead “enough facts to state a

claim for relief that is plausible on its face.” Id. (quotation omitted). “The plausibility standard

is not akin to a probability requirement,” it merely requires “more than a sheer possibility that a

defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations

omitted). In making this determination, the court “accepts all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff.” Guidry, 512 F.3d at 180 (quotation omitted).

“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the

7 On June 18, 2019, after Defendant’s Motion was filed, Defendant purported to amend his counterclaims (again, in a procedurally improper manner). Dkt. 22. Defendant’s amended counterclaims seek to challenge the election—more than two years ago—of Mr. Barry, one of the Trustees. The counterclaims reveal the Dissident Group’s apparent intent—a hostile takeover of the Trust without paying a control premium to shareholders.




alleged] facts is improbable, and that a recovery is very remote and unlikely.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007); see also Tap Acquisition, Inc. v. Vianet Grp. PLC, 14-CV-

360, 2016 WL 8674576, at *3 (N.D. Tex. Oct. 14, 2016) (Boyle, J.) (“The court should assume

that all the factual allegations in the complaint are true, even if doubtful in fact.”).8

A. Defendant’s Motion Is Premature

Defendant’s Motion is premature, and it should be denied as procedurally defective.

Rule 12(c) provides that a motion under this provision cannot be made until “[a]fter the

pleadings are closed.” It is axiomatic that if a “‘counterclaim . . . is interposed . . . the filing of a

reply to [the] counterclaim . . . will mark the close of the pleadings.’” Ward v. Am. Red Cross,

No. 3:13-cv-1042-L, 2013 WL 2916519, at *1 (N.D. Tex. June 14, 2013) (quotation omitted)

(denying defendants’ Rule 12(c) motion as premature)). Defendant chose to file counterclaims,

which Plaintiffs are not obligated to answer, move against, or otherwise respond to until July 26,

2019. Dkt. 35. As a result, the pleadings in this matter remain open, and Defendant’s Rule 12(c)

motion is fatally premature. Finley v. Wash. Mut. Bank, F.A., No. 4:07cv225, 2008 WL 686573,

at *2 (E.D. Tex. Mar. 10, 2008) (denying Rule 12(c) motion where “[t]he pleadings were not

closed at the time the motion was filed”).

Defendant’s premature filing of the Motion was neither an accident nor a trivial

procedural formality. Defendant answered the Complaint, interposed counterclaims, and then

participated in a Rule 26(f) conference. See June 4, 2019 Email (attached as Ex. 1) (agreeing to

participate in Rule 26(f) conference on June 5, 2019). It was not until Defendant was faced with

8 The Fifth Circuit has not addressed whether the PSLRA’s pleadings standards apply to Sections 13(d) or 14(a) claims, particularly where those claims are grounded in negligence as opposed to fraud. Regardless of whether a heightened pleading standard applies, Plaintiffs have pled their claims with the particularity required by the PSLRA—which requires only that the “complaint shall specify each statement alleged to have been misleading, [and] the reason or reasons why the statement is misleading.” 15 U.S.C. § 78u-4. Here, Plaintiffs have exhaustively provided this information. The PSLRA requires nothing more.




obligations to respond to discovery that he signaled an intention to file a Rule 12(c) motion on

Plaintiffs’ claims and to seek a stay pursuant to the PSLRA. However, the pleadings were not

closed then, and they remain open now. Still, Defendant charged ahead with his premature

motion in an improper and disingenuous effort to invoke the PSLRA stay. Indeed, in an attempt

to hide his end run around these rules, Defendant sought to “sever” his Counterclaims from his

Answer, by filing with the Court—the day after he filed his premature Rule 12(c) motion—a

standalone document labeled “Amended Counterclaims.” Dkt. 22. That filing was not valid.

See 21st Century Ins. & Fin. Serv., Inc. v. Tex. Specialty Risk Programs, Inc., No. 3:10-cv-2076-

M, 2011 WL 1869433, at *2 (N.D. Tex. 2011) (granting motion to strike “because a

counterclaim must be asserted as an amendment to its pleadings”).9 The Motion should be

denied on this basis alone.

B. Plaintiffs Have Adequately Pled That Defendant Violated Section 13(d)

1. Plaintiffs Have Adequately Pled the Existence of an Undisclosed Group

Even if the Motion were not premature (and, to be clear, it is), it must also be denied

because the Complaint sufficiently pleads that Defendant failed to disclose the Dissident Group’s

formation of a “group” with two entities, Santa Monica and UGLIC, which have been secretly

supporting Defendant’s campaign, while simultaneously giving the appearance of neutral, third-

party support. This is a plain violation of Section 13(d), which requires disclosure of this

“group.”

Section 13(d) provides: “When two or more persons act as a partnership, limited

partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of

9 For the reasons explained above, Plaintiffs plan to file both a motion to strike the “Amended Counterclaims,” and a motion to dismiss the “Amended Counterclaims” once they have been properly filed—a further indication that the pleadings are not yet closed and that Defendant’s Rule 12(c) motion was premature.




securities of an issuer, such syndicate or group shall be deemed a ‘person’ for the purposes of”

the “beneficial owner” inquiry. 15 U.S.C. § 78m(d)(3). In turn, after becoming the beneficial

owners of more than five percent of a class of a public, registered security, a “person”—which

includes a group for purposes of Section 13(d)—must file a statement with the SEC disclosing,

among other things, the background and identity of all persons involved in the transaction. 15

U.S.C. § 78m(d)(1). Such information is critical to allow investors to “assess the potential for

changes in corporate control [as here] and adequately evaluate” the worth of their investments.

See generally GAF Corp. v. Milstein, 453 F.2d 709, 717 (2d Cir. 1971).

Santa Monica and UGLIC, in combination with the Dissident Group, own shares far in

excess of the 5% threshold triggering Section 13(d) disclosure obligations. Compl. ¶ 43d-e; id.,

Ex. D (noting that UGLIC and Santa Monica hold, at least, 0.7% of outstanding shares, and, with

other members of the Dissident Group, over 25% of outstanding shares).10 Thus, Plaintiffs’

“ability to survive [a] Motion to Dismiss turns on whether [the] Complaint sufficiently pleads the

existence of a ‘group,’” which merely requires an agreement among the group’s members “to

further a common objective.” Hollywood Casino Corp. v. Simmons, No. 3:02-CV-0325-M, 2002

WL 1610598, at *2 (N.D. Tex. July 18, 2002). Plaintiffs have easily satisfied these criteria.

The Complaint alleges that Santa Monica and UGLIC have extensive relationships with

Defendant and his Dissident Group. Compl. ¶¶ 7, 43d-e, 91-95, 105. Plaintiffs allege that Santa

Monica’s principal, Lawrence J. Goldstein, is a member of the Board of Directors of FRMO

Corp. (“FRMO”), that Horizon Kinetics’ co-founders, Murray Stahl and Steve Bregman,

founded FRMO, that Mr. Stahl serves as FRMO’s CEO and Chairman, and that Mr. Bregman is

FRMO’s President, CFO, and Director. Id. ¶ 92. Plaintiffs allege that soon after Defendant

10 Indeed, Santa Monica filed a Schedule 13D, a filing permitted only by shareholders owning 5% or more of an issuer’s shares, to express “enthusiastic” support for Defendant’s campaign. Compl. ¶ 43(d).




launched his proxy contest, Santa Monica filed its own Schedule 13D—despite the fact that it

owned only approximately 0.2% of the Trust’s shares, far from the 5% required for a Schedule

13D filing—strongly supporting Defendant’s candidacy for trustee. Id. ¶¶ 43d, 92.

Likewise, Plaintiffs allege that UGLIC has a longstanding relationship with Defendant

himself. Compl. ¶¶ 43e, 94. Jesse Correll, UGLIC’s Chairman and CEO, was a member of the

Board of Directors of AMEN Properties, Inc. (“AMEN”)—the same board on which Defendant

serves as Chairman. Id. ¶ 94. Plaintiffs further allege that Correll is connected to SFF Royalty,

LLC, an entity through which AMEN owns oil and gas interests. Id. UGLIC, too, issued public

statements in “enthusiastic support” of Defendant’s candidacy. Id. ¶ 93.

These allegations state a claim and, contrary to Defendant’s position, no more is needed

at the pleading stage. Indeed, in Hollywood Casino, Chief Judge Lynn found a Section 13(d)

claim to be well pled based “on the entirety of the complaint,” where the alleged group members

were “old friends,” had taken a recent stock position, and had made public statements suggesting

the formation of a group. 2002 WL 1610598, at *2. Similarly, in Ashford v. Hospitality Prime,

Inc. v. Sessa Capital (Master) LP (a case Defendant cites), Judge Godbey rejected the same

argument that Defendant presses here (that the plaintiff “does not specifically allege the

existence of any agreement”). 2017 WL 2955366, at *8-9 (N.D. Tex. Feb. 17, 2017). In

Ashford, the alleged group member acquired shares after the board candidate was nominated, and

viewed with “the entirety of the Amended Complaint,” this “creat[ed] a reasonable belief

sufficient for the PSLRA” regarding the creation of an undisclosed group. Id. at *8.11

11 Contrary to Defendant’s suggestion, none of his out-of-jurisdiction authorities require the plaintiff to identify a specific agreement or any other smoking-gun evidence related to the terms of an agreement in order to survive a motion to dismiss. Mot. 10-11. As even those cases show, all that is required is some plausible basis for the court to infer that an agreement with the requisite purpose exists. See CSX Corp. v. Children’s Inv. Fund Mgmt. (UK) LLP, 654 F.3d 276, 283 (2d Cir. 2011) (explaining that “circumstantial evidence to support the inference of formal or informal understanding” is all that is required to establish a group for purposes of a Section 13(d) claim); Forward Indus., Inc. v. Wise, No. 14-cv-5365 (JSR), 2014 WL 6901137, at *3 (S.D.N.Y. Sept. 23, 2014) (noting that, to




Defendant appears to argue that his failure to disclose UGLIC and Santa Monica’s hidden

participation in the Dissident Group is immaterial for purposes of Section 13(d) because those

entities each own less than one percent of the Trust’s total outstanding shares. Mot. at 12-13.

Defendant is wrong. UGLIC and Santa Monica acted in concert with the Dissident Group for

purposes of acquiring or holding the Trust’s securities (Compl. ¶¶ 91-95), and thus they are

subject to the mandatory disclosure requirements of Section 13(d). 15 U.S.C. § 78m(d)(1).

Moreover, UGLIC and Santa Monica each played an active role in soliciting proxies during

Defendant’s campaign and openly supported Defendant by issuing public statements on his

behalf. Compl. ¶ 43d-e. Similarly, Santa Monica’s “Schedule 13D” filing gave the misleading

impression that an independent, major shareholder was siding with Defendant’s position in the

proxy campaign. Id. ¶ 43d. This behavior misled shareholders into believing that support for

Defendant’s candidacy extended beyond the Dissident Group, significantly altering the “total

mix” of information available to shareholders. TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438,

449 (1976). Indeed, such an omission eviscerates shareholders’ ability to rely on Section 13(d)’s

disclosure requirements to evaluate the potential for a change in the Trust’s leadership and to

value their investment in the Trust accordingly.12

2. Pleading Irreparable Harm Is Unnecessary, But Plaintiffs Have Done So

Defendant wrongly asserts that Plaintiffs have not pled irreparable harm resulting from

Defendant’s Section 13(d) violations. Mot. at 12. However, the Complaint explicitly alleges

that the Trust and its shareholders will be irreparably harmed in the absence of the relief that

survive a motion to dismiss, the plaintiff “need not set forth direct evidence of an agreement between [defendants] with specified terms”). Plaintiffs have done that here. 12 Defendant also has violated Rule 14a-101 (Schedule 14A), Item 4 by including Santa Monica and UGLIC as hidden “participants” in his proxy solicitation. Defendant acknowledges that this violation rises or falls on the same allegations as Plaintiffs’ Section 13(d) claim. Mot. at 23.




Plaintiffs seek, including the correction of Defendant’s material misstatements and omissions

related to his Section 13(d) violations. Compl. ¶ 108. As Defendant himself recently stated, the

ability to participate in resolving questions of corporate governance is a critical right enjoyed by

the Trust’s shareholders. Dkt. 37 at 4. Accordingly, courts have routinely found that the risk of

an uninformed shareholder vote on a critical issue of corporate governance amounts to

irreparable harm. See, e.g., MDI, Inc. v. McCann, No. SA -08-CA00773, 2008 WL 11334002, at

*2 (W.D. Tex. Nov. 20, 2008) (“MDI and [] its shareholders will suffer irreparable injury if the

proxies already obtained through the use of the foregoing misrepresentations and omissions of

material facts are not invalidated and if the Defendants are not enjoined from further solicitation

of MDI shareholders through the use of such unlawful solicitation materials”); see also

Woodward & Lothrop, Inc. v. Schanbel, 593 F. Supp. 1385, 1394 (D.D.C. 1984) (holding,

“[g]iven the current state of information now before the shareholders . . . [voting would cause] an

irreparable injury to the shareholders . . . compelled to make a vital investment decision based on

incomplete . . . information”).

In any event, while Plaintiffs ultimately must show irreparable harm to the extent that

they seek injunctive relief, irreparable harm is not an element of a Section 13(d) claim. See GAF

Corp, 453 F.2d at 715. Defendant’s citations (Mot. at 12-13) concern injunctive relief based on a

Section 13(d) claim, not whether the claim was adequately pled.13 Thus, even if Plaintiffs had

not adequately pled irreparable harm (which they have), dismissal is improper at this stage.

13 See, e.g., Marshall Field & Co. v. Icahn, 537 F. Supp. 413, 419 (S.D.N.Y. 1982) (addressing preliminary injunction); Forgent Networks, Inc. v. Sandberg, No. A-09-CA-499-LY, 2009 WL 2927015, at *2 (W.D. Tex. Aug. 27, 2009) (same). The only case cited by Defendant on this topic that involved a motion to dismiss – Treadway Cos., Inc. v. Care Corp., 490 F. Supp. 660 (S.D.N.Y. 1980) – was resolved after the court already had declined to issue a preliminary injunction, and the plaintiff in that case, unlike here, only sought injunctive relief.




C. Plaintiffs Have Adequately Pled That Defendant Violated Section 14(a)

Plaintiffs have adequately alleged that Defendant violated Section 14(a) based on the

numerous misstatements and omissions contained in his proxy solicitation materials. To state a

Section 14(a) claim, Plaintiffs need only allege that (1) Defendant “misrepresented or omitted a

material fact in a proxy statement;” (2) Defendant “acted at least negligently in distributing the

proxy statement;” and (3) there is an “essential link” between the proxy statement and the harm

alleged. In re Fossil, Inc., 713 F. Supp. 2d 644, 654 (N.D. Tex. 2010) (internal quotation marks

and citations omitted; emphasis in original). “An omitted fact is material if there is a substantial

likelihood that a reasonable shareholder would consider it important to deciding how to vote.”

TSC Indus., Inc., 426 U.S. at 449. The Complaint easily satisfies these criteria.

1. Defendant Ignores And Therefore Concedes, For Purposes Of This Motion, Several Material Misstatements And Omissions

Defendant does not contest numerous allegations in the Complaint supporting Plaintiffs’

Section 14(a) claim. Specifically, Defendant does not challenge Plaintiffs’ allegations that, in

connection with Defendant’s proxy campaign, (i) Defendant improperly disclosed to

shareholders settlement communications between the Trustees and Defendant, and in doing so,

misleadingly omitted the very first line of the communication, which stated that the email was

“Subject to Settlement Privilege/Confidential” (Compl. ¶ 62); (ii) Defendant falsely asserted to

shareholders that a presentation by the Trust highlighted several wells “in the wrong location,

some by more than 20 miles, with one well listed in the wrong county,” to misleadingly imply to

shareholders a lack of competency among the Trust’s current leadership (id. ¶ 66); and (iii)

Defendant purported to support his position that the Trust should be converted to a Delaware

corporation, by asserting to shareholders that “there is no precedent whatsoever for a company

engaged in these active business activities to be structured as a business trust”—without regard




for the fact that the Trust has been conducting business operations in this fashion for over 130

years14 (id. ¶ 75). Defendant does not contend that these misstatements and omissions are

immaterial or otherwise deficient; indeed, he says nothing about them at all. Thus, Defendant’s

motion on Plaintiffs’ Section 14(a) claim must be denied.

2. Plaintiffs Adequately Plead Defendant’s Material Misstatements and Omissions

Beyond Defendant’s concessions, Plaintiffs have adequately alleged numerous

misstatements and omissions that, if not corrected by Defendant, will continue to harm the Trust

and its shareholders. Moreover, in a number of instances, Defendant concedes that Plaintiffs

have adequately alleged that Defendant’s misstatements and omissions were material by failing

to challenge materiality. Mot. at 21-22, 23-25. Rather than challenging materiality, Defendant

has elected to dispute the facts underpinning Plaintiffs’ allegations of falsity. It is axiomatic that

factual disputes cannot be resolved at the pleading stage, and instead the resolution of these

issues will require the exchange of discovery and the full development of the evidentiary record

before the Court.

a. Misstatements and Omissions about the Trust’s Interactions with the Dissident Group

Plaintiffs allege that Defendant made a number of material misstatements and omissions

concerning the Trust’s interactions with Defendant and the Dissident Group.15 Compl. ¶¶ 57-62.

Defendant’s assertions do not undermine the strength of Plaintiff’s well-pled allegations.

Misstatement/Omission 1: The Complaint alleges that while Defendant’s proxy solicitation

materials repeatedly portray Plaintiffs as failing to engage with the Dissident Group in good faith

14 While Defendant briefly references this allegation (Mot. at 18), he offers no response to it or any argument as to why it is not well pled. 15 Plaintiffs’ undisputed allegation concerning Defendant’s misleading “reprint” of a settlement communication— addressed above—also falls within this category of misstatements and omissions.




and declining to consider the Dissident Group’s reform proposals, Defendant failed to disclose to

shareholders that (1) on March 6, 2019, Plaintiffs agreed to consider a suggestion by members of

the Dissident Group to form an advisory board of shareholders to evaluate corporate governance

reforms; (2) on March 20, Plaintiffs agreed to review particular governance policies at the

suggestion of members of the Dissident Group; and (3) on March 27 and April 5, Plaintiffs

proposed and discussed identifying an independent compromise trustee candidate to avoid a

prolonged proxy contest with members of the Dissident Group. Compl. ¶ 58.

Defendant contends that these allegations are lacking because he had no “freestanding

obligation to disclose” any of the details related to the extensive engagement between the

Dissident Group and Plaintiffs. Mot. at 21. Defendant ignores, however, that when a party

makes affirmative statements, it has an obligation to ensure that it has not omitted information

necessary to make the statement accurate. Defendant’s own citation makes this point. Mot. at

21 (citing Panella v. Tesco Corp., No. 4:17-cv-02904, 2019 WL 1606349, at *4 (S.D. Tex. Mar.

29, 2019) (disclosure required if “necessary” to make statement “not misleading”)); see also

Caiola v. Citibank, N.A., 295 F.3d 312, 331 (2d Cir. 2002) (“[U]pon choosing to speak, one must

speak truthfully about material issues . . . . Once Citibank chose to discuss its hedging strategy, it

had a duty to be both accurate and complete.”). Defendant’s argument fails.16

Misstatement/Omission 2: The Complaint addresses Defendant’s statements that he suggested

that the Trust convert into a Master Limited Partnership, but then abandoned this proposal based

on changes to the U.S. Tax Code. Compl. ¶ 59. Defendant’s public statements mislead

shareholders because they fail to disclose that the Trust carefully considered a potential

conversion, commissioning expert advice from its financial advisor and two law firms (one of

16 Defendant’s disclosure regarding engagement with the Trustees (Mot. at 21) does not remedy his misleading omission. Those disclosures say nothing about the Trustees’ conduct during such engagement.




which was sought out at Defendant’s request and at significant expense to the Trust), and that

Defendant abandoned his proposal upon receiving the expert advice developed by the Trust. Id.

Defendant disputes his statements’ falsity, claiming that he never said that he “came to

the conclusion [to abandon the proposal] on [his] own.” Mot. at 21. This ignores what Plaintiffs

actually plead, which is that, by omitting the real reasons behind Defendant’s abandonment of

his proposal, he misleadingly implied to shareholders he made that decision independently.

Compl. ¶ 59. Defendant had a duty to speak truthfully and must correct his previous, misleading

statements.

Defendant also argues conclusorily that this information would not “be material to

investors.” Mot. at 21. Materiality, however, is a mixed question of fact and law, and is not

properly resolved at the pleading stage. See, e.g., S.E.C. v. Shapiro, No. 4:05cv364, 2007 WL

788335, at *7 (E.D. Tex. Mar. 14, 2007) (“[M]ateriality is a mixed question of law and fact.

Therefore, the Court will not answer the question of materiality pursuant to a motion to

dismiss”). In the context of Section 14(a), the materiality question asks whether a “reasonable

shareholder would consider [an omitted fact] important to deciding how to vote.” TSC Indus.,

Inc., 426 U.S. at 449. Here, as Plaintiffs allege, the foundation of Defendant’s proxy campaign

was the contention that Defendant represented a modernizing influence to implement reforms in

the Trust’s governance structure. Compl. ¶ 28; id., Ex. D. Thus, it is important for shareholders

to understand that, contrary to Defendant’s disclosures, Plaintiffs studied a structural reform

proposed by Defendant and reached a conclusion that Defendant accepted. Shareholders deserve

to receive corrected information so that they may make an informed decision when casting their

votes.




Misstatement/Omission 3: The Complaint explains that, in an April 15, 2019 press release

(repeated numerous times in letters, press releases, and presentations throughout the proxy

contest and thereafter), Defendant falsely accused the Trust of “stonewall[ing]” and being

“unwilling to provide” to Defendant a list of non-objecting beneficial owners of shares of the

Trust (the “NOBO List”). Compl. ¶ 60. Defendant’s statements were blatantly false; the Trust

had already explicitly stated that it was “willing to provide such materials, provided that the

Trust has the legal authority to share such information.” Id. Indeed, in its communications with

Defendant, the Trust repeatedly expressed its willingness to provide the NOBO list as soon as the

Defendant provided the requisite legal basis for his request. Id.

Defendant attempts to sidestep this allegation, contending that the Trust does not allege

that this statement was false and that Plaintiffs were free to disclose their position with respect to

the NOBO list to shareholders. Mot. at 21-22. But irrespective of whether the Trust has

produced the NOBO List, at issue is Defendant’s misleading assertion that the Trust is

“unwilling” or “refuses” to do so. Defendant effectively leaves this unaddressed.

Misstatement/Omission 4: The Complaint explains that, in an April 23, 2019 press release,

Defendant falsely asserted that the Trust has exhibited a “total disregard for investors’ views and

rights.” Compl. ¶ 61. In doing so, Defendant omitted a series of actions taken by the Trust in

response to views expressed by shareholders including, among other things, the decision to

nominate a new independent and highly qualified candidate for the vacant trustee position. Id.

Defendant claims that his false and misleading assertion is a protected “opinion” that he

“genuinely” held. Mot. at 20. The Supreme Court has explained, however, that “some sentences

that begin with opinion words like ‘I believe’ contain embedded statements of fact . . . [that]

affirm not only the speaker’s state of mind . . . but also an underlying fact . . . Accordingly,




liability would follow . . . not only if the speaker did not hold the belief she professed but also if

the supporting fact she supplied were untrue.” Omnicare, Inc. v. Laborers Dist. Council Const.

Indus. Pension Fund, 135 S. Ct. 1318, 1327 (2015); see also Ramirez v. Exxon Mobil Corp., 334

F. Supp. 3d 832, 847-48 (N.D. Tex. 2018) (noting that opinion statements may convey facts

about the opinion’s basis and if “the underlying facts . . . contradict the opinion statement . . . the

speaker can be held liable”).17 Here, Defendant’s solicitation material refers to the underlying

supporting facts by stating that the Trust’s purported “total disregard” is “evidenced by the

conduct of incumbent trustees during this proxy campaign.” Dkt. 21-3 at 259 (emphasis added).

Because the facts relied on by Defendant’s purported statement of “opinion” are false, Plaintiffs

allege an actionable misstatement in violation of Section 14(a).

b. Misstatements and Omissions about the Trust’s Activities

The Complaint adequately alleges that Defendant made misstatements and omissions

concerning the Trust’s activities.18 Compl. ¶¶ 63-66.

Misstatement/Omission 5: The Complaint alleges that, in an April 9, 2019 press release,

Defendant stated “wells drilled between 2014-2018 . . . have increased the Trust’s oil production

over 600% and its gas production close to 1,000%.” Id. ¶ 64. This statement is misleading

because the Trust does not drill any wells, and it produces neither oil nor gas. Id.

Defendant concedes his misstatement in a footnote, but argues that it is “implausible” that

it would have “confused any shareholder” or could have “influenced a reasonable shareholder to

vote against Plaintiffs’ nominee.” Mot. at 18 n.3. This is not a stray reference by Defendant—

17 The OmniCare Court gave the following example of a statement of opinion that embeds a fact: “I believe our TVs have the highest resolution available because we use a patented technology to which our competitors do not have access.” Omnicare, 135 S. Ct. at 1327. (emphasis added). 18 Plaintiffs’ undisputed allegation concerning Defendant’s false assertion that a Trust presentation highlighted wells in the wrong location—addressed above—also falls within this category of misstatements and omissions.




he has asserted that the Trustees have taken “unqualified credit for the returns experienced by

TPL investors” and that the real reason for such returns included the Trust’s oil and gas

production. Tex. Pac. Land Tr., Proxy Statement (Schedule 14A) (Apr. 9, 2019) (attached and

incorporated herein as Ex. 2); see also Compl. ¶¶ 79-81. Defendant’s statement is contained

within solicitation materials explicitly seeking “support for the election of Eric Oliver as trustee.”

Ex. 2. Thus, contrary to Defendant’s self-serving argument that his misstatement could not have

influenced a reasonable shareholder, the Complaint has alleged just that, and thus, this factual

dispute cannot be resolved on a pre-discovery motion. Supra at 20.

Misstatement/Omission 6: The Complaint explains that Defendant’s Proxy lists a variety of

highly speculative risk factors related to the Trust’s water business including “risks related to

workers compensation, leaks or rupturing of pipelines . . . [and] potential acquifier [sic]

contamination.” Compl. ¶ 65. Defendant’s misleading statements were intended to portray an

overly precarious picture of TPL’s water business to support his position that the Trust should

sell the business. Id. Defendant’s Dissident Group has previously expressed support for the

Trust’s business performance, only to publically suggest dissatisfaction with the performance of

critical aspects of the Trust’s business strategy, including the water business. Id. ¶¶ 28, 65.

Here again, Defendant asserts that he was merely stating his “opinion,” but the authority

Defendant cites provides that an opinion is actionable if the speaker does not truly believe it.

Mot. at 18-19 (citing Hohenstein v. Behringer Harvard Reit I, Inc., No. 3:12-cv-3772-G, 2014

WL 1265949, at *10 (N.D. Tex. Mar. 27, 2014)). Plaintiffs have pled that Defendant “intended”

to create an “overly-precarious” picture of the water business (Compl. ¶ 65)—meaning

Defendant did not actually believe these risks to be real. That is an actionable misstatement, and

Plaintiffs request discovery on this issue.




c. Misstatements and Omissions about the Proxy Vote

Plaintiffs allege several instances in which Defendant violated Rule 14a-9 by making

claims about the election results prior to the shareholder vote. Compl. ¶¶ 67-71.19 The SEC

notes to Rule 14a-9 specifically identify “claims made prior to a meeting regarding results of a

solicitation” as an example of the type of statement that “may be misleading within the meaning

of this section.” 17 C.F.R. § 240.14a-9. This is because the disclosure of preliminary proxy

tallies by one side in a proxy contest can, to the sole benefit of the disclosing party, suggest the

results of an election are a foregone conclusion, causing an average shareholder to ignore

distributed proxy materials. Gould v. Am. Hawaiian S.S. Co., 331 F. Supp. 981, 992 (D. Del.

1971). Because “§ 14(a) seeks to insure the informed exercise of the franchise, any misstatement

which makes the exercise seem futile and which diverts shareholder attention from careful

analysis of a proxy statement for purposes of exercising the right to vote would certainly be a

material defect.” Id.; see also generally Lone Star Steakhouse & Saloon, Inc. v. Adams, 148 F.

Supp. 2d 1141, 1152 (D. Kan. 2001) (noting that inaccurate statements related to preliminary

vote totals intended to cause “a bandwagon effect on other shareholders . . . are material”).

Misstatement/Omission 7: The Complaint explains that in a May 22, 2019 press release,

Defendant purported to “announce” the “results” of his Invalid Meeting. Compl. ¶ 69. This

statement was misleading because it failed to disclose that Defendant’s “Invalid Meeting was not

properly noticed to all shareholders, there was no quorum, the proxies solicited by the Trust were

not present, holders of millions of shares have not submitted any proxies yet, and no valid vote

was conducted.” Id. Moreover, the announced “results” were objectively false because they

19 Including claiming, in a May 21, 2019 interview with Bloomberg that he “has sufficient votes to win the trustee seat, based on preliminary tallies.” Compl. ¶ 68.




omit any mention of the millions of shares that were not given the opportunity to participate in

the Invalid Meeting. Id.

Defendant contends that he cannot be faulted “for not adopting Plaintiffs’ litigation

position that ‘no valid vote was conducted,’” and that there is no “per se” prohibition on making

advance statements regarding a proxy vote. Mot. at 23-24. Defendant misses the point; while

Defendant need not adopt Plaintiffs’ litigation position, the law is clear that, for purposes of this

Motion, the Court must. Guidry, 512 F.3d at 180. Defendant does not seek judgment on the

pleadings with respect to the Invalid Meeting’s validity, an event that effectively disenfranchised

the millions of shares that were not aware of any purported “meeting” (and at which less than

half of the Trust’s shares were present in person or by proxy (Compl. ¶ 52)). Accordingly,

assuming—as the Court must—that Defendant’s Invalid Meeting was improper based on its

significant legal infirmities, there can be no question that Defendant’s public statements

concerning the vote are materially misleading (and thus it is of no moment whether a “per se”

prohibition applies to “claims made prior to a meeting regarding the results of a solicitation”). 20

d. Misstatements And Omissions Concerning the Trust’s Structure

Plaintiffs allege several material misstatements and omissions concerning the Trust

structure. Compl. ¶¶ 72-77.21

Misstatement/Omission 8: The Complaint alleges that, in Defendant’s proxy statement, he

claims that shareholder meetings “only occur when a new trustee needs to be elected to fill a

vacancy of one of the three trustee positions.” Compl. ¶ 73. The DOT provides, however, that

20 Also included in this category is Plaintiffs’ allegation concerning the dissemination of misleading voting instruction cards that implied that brokerage firms were soliciting votes on Defendant’s behalf. Compl. ¶ 71. Defendant claims that Plaintiffs have not provided enough detail for them to respond substantively to this allegation (Mot at 24 n.5), but Defendant well knows how voting instructions are designed and provided to shareholders. 21 Plaintiff’s undisputed allegation concerning Defendant’s misleading assertion that there is “no precedent” for a trust to operate in the manner that the Trust currently operates – addressed above – also falls within this category of misstatements and omissions.




shareholder meetings “may be called by the trustees whenever said trustees shall deem it

necessary.” Id. Moreover, the DOT provides shareholders with the ability to request that the

trustees notice a meeting, a power that Defendant has not even attempted to exercise. Id.

Defendant contends his statement was not misleading (Mot. at 19); however, it is

misleading to assert that meetings “only occur” under a particular scenario when, in fact,

meetings can occur under multiple other scenarios. Compl. ¶ 73. Further, Defendant was not

making a stray, immaterial assertion. His contention regarding the frequency of meetings related

to a key pillar of his campaign platform: that the Trust should convert into a Delaware

corporation, which requires annual meetings. See Dkt. 21-3 at 202 (“In contrast, Delaware law

generally requires that corporations hold an annual meeting . . . Mr. Oliver and the other

Participants believe that the Trust would benefit from converting into a Delaware corporation”).

Misstatement/Omission 9: The Complaint alleges that, in an April 23, 2019 press release,

Defendant asserted that “[t]he sole intended purpose of the formation of [the Trust] as a trust was

to provide an orderly liquidation of the land that secured defaulted bonds at the T&P Railway.”

Compl. ¶ 76. Defendant’s statement is directly contracted by the DOT which, among other

things, provides the Trustees with the power to “purchase other lands and premises” (a power

exercised to Defendant’s great benefit for the past 131 years). Id.

Defendant sidesteps his misstatement by contending that the Trust itself has publicly

stated that the Trust’s “primary mission” has been to “liquidate” its lands and return cash to

shareholders (Mot. at 18). While that may indeed be the Trust’s “primary” mission, at issue is

Defendant’s false statement regarding the “sole intended purpose” of the Trust at formation.

Compl. ¶ 76. Defendant has misled shareholders by claiming during his campaign that the

Trust—under current leadership—has “deviated” from its liquidation “mandate” by actively




engaging in business activities. Id. Defendant has no response to the fact that the DOT itself

provided a much broader purpose, including, “leasing, alienating, improving, encumbering, or

otherwise disposing” of the land. Id. & Ex. A at FIRST (emphasis added).

Misstatement/Omission 10: In the same April 23 press release, Defendant stated that the Trust’s

“inside ownership level is [in] a dramatic decline.” Compl. ¶ 77. This statement is materially

misleading because Defendant failed to explain that TPL has only two trustees (as opposed to the

usual three), one of whom has only served for two years and previously maintained a policy of

not holding shares for conflict reasons (since he was providing legal services to the Trust). Id. It

is also misleading because Maurice Meyer III, the previous third trustee, was one of the major

shareholders of the Trust. Defendant also failed to explain that, unlike directors of corporations,

none of the trustees receive any equity compensation because under the DOT, as the Trust cannot

issue any new shares. Finally, until 2018, the Trustees received $2,000 annually for their

services, making it unreasonable to expect them to buy shares in the open market with their own

money.

For the reasons explained above, Defendant’s contention that this statement was not

misleading fails. Mot. at 20. And contrary to Defendant’s contention that “Plaintiffs were free

to make these points in their proxy materials,” (id.), a party “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).22

22 To the extent it is in dispute, Defendant’s affirmative statement that inside ownership levels are down plainly is material and was intended to be material; indeed, Defendant seeks to convince shareholders that the Trust would be better managed by a trustee with “skin in the game.” Dkt. 21-1 at 275.




e. Misstatements and Omissions about the Selection of General Cook

Misstatement/Omission 11: The Complaint alleges that, in a May 7, 2019 press release,

Defendant claims that General Cook was “hand-picked by the two incumbent trustees at the

suggestion of their outside legal counsel.” Compl. ¶ 78. Defendant further stated that the

Trustees “have decided to outsource to outside counsel . . . the role of the nominating

committee.” Id. This statement fails to accurately describe the thorough search process

undertaken by Plaintiffs to select General Cook as nominee (as described above) and omits that

the Nominating, Compensation and Governance Committee Charter expressly charges the

Trustees with identifying and recommending candidates for trustee. Id.

Defendant asserts that this statement “was not rendered false by the failure to disclose

Plaintiffs’ contention that General Cook was selected ‘only after a thorough search and review

process.’” Mot. at 21. Defendant is wrong. For purposes of this Motion, Plaintiffs’ “thorough

search process” is not a “contention;” it is a fact taken as true. Guidry, 512 F.3d at 180. Thus,

Defendant’s statement that Plaintiffs have “outsourced” (i.e., abandoned) their role with respect

to the nomination of trustees and instead “hand-picked” General Cook upon counsel’s

recommendation is false. This misstatement also was material insofar as it was intended to

dovetail with Defendant’s other misstatements—discussed below—regarding the Trustees’

motivation and conflicts. Shareholders may be more likely to vote for Defendant if they falsely

believe that General Cook’s selection was a result of cronyism or an abdication of duties.

f. Misstatements and Omissions that Improperly Impugn the Trustees and Trust Management’s Character, Integrity, and Personal Reputation

Rule 14a-9 prohibits statements that directly or indirectly impugn character, integrity, or

personal reputation, or that make charges of illegal, improper, or immoral conduct “without

factual foundation.” Plaintiffs adequately plead Defendant’s violations of this rule.




Misstatement/Omission 12: Defendant’s April 23, 2019 press release states that the Trustees

have “increased their own pay 52x,” (from $2,000 in 2017 to $104,000 in 2018) and that TPL’s

general agents “have little to gain” from long-term stock appreciation. Compl. ¶ 82. This

statement is misleading because the Trustee’s salary was merely adjusted for inflation. Id.

Indeed, since the Trust’s inception, the trustee’s annual salary remained $2,000 for almost 130

years before being inflation-adjusted for the first time in 2018. Id. Moreover, Defendant’s

statement was also misleading because it failed to recognize that even the adjusted trustee

compensation was on the low end of the spectrum compared with compensation for directors of a

corporation with a $6 billion market capitalization; a fact recognized by all three independent

proxy advisory firms. Id. Defendant also fails to provide any basis to support the statement that

TPL’s general agents lack incentives to seek long-term value for the Trust. Id. Indeed, the fact

that the Trust has seen unprecedented value maximization under the current leadership is a strong

argument to the contrary. Id. ¶ 21.

Apart from his own unsupported assertion, Defendant does not defend against this

violation. Again, if a party chooses to speak affirmatively, it has a “duty to be both accurate and

complete.” Caiola, 295 F.3d at 331 (emphasis added). By omitting this important context,

Defendant has breached this duty. See Gladwin, 540 F.2d at 1271 (affirming Section 14(a)

violation where “letter implied that the nominee was of bad moral character”).

Misstatement/Omission 13: The Complaint explains that Defendant’s April 23 2019 press

release and proxy statement repeatedly characterize the Trustees as having “rampant conflicts of

interest” and its advisors as “confused or misinformed.” Compl. ¶¶ 80, 83. Defendant failed to

provide, however, any indication of such behavior by the Trustees, and instead these statements

reflect needless, false attempts to impugn the Trustees’ integrity. Id.




Defendant does not even attempt to characterize these disparagements as “opinion.”

Indeed, rather than state that he “believes” the Trust’s advisors are “confused or misinformed,”

Defendant claims that they appear “to be confused or misinformed.” Dkt. 21-3 at 204 (emphasis

added). Read within the broader context of Defendant’s press release, this assertion amounts to a

factual claim falsely impugning the character and integrity of counsel to the Trust and, by

extension, the Trustees who rely on their advice. And with respect to purported conflicts of

interests, Defendant again impermissibly embeds factual misstatements within a broader

statement of opinion. Id. at 259 (“We believe poor governance . . . has resulted in . . . [r]ampant

conflicts of interest.”) (emphasis added); see OmniCare, 135 S. Ct. at 1327. Such a statement of

opinion necessarily implies a factual predicate for Defendant’s purported belief, i.e., that

conflicts of interest are “endemic” among TPL’s leadership. However, Defendant’s statement

studiously omits any such supporting facts. With good reason, neither TPL’s management nor

the Trustees are conflicted with respect to the Trust’s business.

g. Misstatements and Omissions about the Dissident Group’s Background, Conduct and Future Plans

Plaintiffs allege several well-pled misstatements and omissions involving the Defendant’s

background, conduct, and future plans. Compl. ¶¶ 84-87.

Misstatement/Omission 14: In a video released on April 16, 2019, Defendant states that the

Dissident Group was “spending [its] own money” on the election, one of several statements

made by Defendant to the same effect. Compl. ¶ 85. This statement was misleading, as

Defendant himself revealed in the Dissident Group’s definitive proxy statement filed with the

SEC, that he intended to seek reimbursement from the Trust if his campaign was successful. Id.

Defendant cannot rely on this separate document to satisfy his disclosure obligations.

Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 202 (5th Cir. 1988) (refusing “to accept the




premise that prior disclosure in one communication will automatically excuse omissions in

another”) (quotation omitted).

Misstatement/Omission 15: In the same video, Defendant asserts that he is “not a dissident.”

Compl. ¶ 86. This statement is misleading for the simple reason that it is facially untrue.

Defendant is, by definition, a dissident campaigning in opposition to TPL’s preferred nominee

for trustee. Id. (describing the common use of the word “dissident” “in the context of contested

board elections to describe a shareholder of an issuer who has nominated a [candidate for] the

board that is not supported by the issuer”).

Defendant contends that the video’s purpose was to make clear that he was opposing the

Trust’s candidate (Mot. at 25), but his intent in making his statements cannot be resolved on a

Rule 12(c) motion. It is for this precise reason that Plaintiffs desire to take discovery on the

video, including whether it was intended to mislead shareholders regarding Defendant’s

relationship with the Trust.

Misstatement/Omission 16: In a publically filed May 2, 2019 presentation, Defendant

repeatedly implies that he is a supporter of TPL’s water business by touting the water business’

potential. Compl. ¶ 87. However, Defendant omits that, in previous disclosures, including his

Schedule 13D/A filed on March 15, 2019, Defendant disclosed that he and his Dissident Group

planned a “potential separation or sale of the water business.” Id.

Defendant contends this misleading omission was addressed in other proxy materials

(Mot. at 18-19), which ignores Fifth Circuit precedent precluding reliance solely on other

documents to cure potentially misleading omissions. See Isquith, 847 F.2d at 201. Moreover,

examining Defendant’s statement in the broader context of the proxy campaign suggest this is

another example of his continuing attempts to hide the true objectives underlying his nomination




for trustee. Instead, he continues to withhold material information from shareholders to preclude

a fully informed vote. The Court should not tolerate these repeated efforts and should act to stop

Defendant from continuing to selectively omit information from discussions of business strategy

in order to mislead shareholders with respect to his true intentions.

D. Plaintiffs Have Standing To Pursue Their Section 14(a) Claim

Defendant incorrectly asserts that Plaintiffs lack standing because they do not have

“voting rights.” Mot. at 14-15. This argument fails for two reasons: First, the Trustees are

shareholders and have the same right to vote on Trust matters enjoyed by Defendant. Second, an

issuer, like the Trust, has standing to assert a Section 14(a) claim for declaratory relief.

As to the Trustees’ voting rights, Defendant contends that the Trustees are bringing this

suit solely as trustees, not as shareholders. Id. at 15. But this exalts form over substance; the

Trustees are parties to this case individually. Defendant filed counterclaims against each

Trustee, seeking liability, individually and personally.23 See Dkt. 17, 21. While Defendant

asserts that the Complaint does not allege the Trustees to be shareholders, the fact is that both

are shareholders. The Court can take judicial notice of that fact for purposes of this Motion

simply by referencing the Trust’s definitive proxy statement—of which Defendant himself has

requested that the Court take judicial notice. Dkt. 21-1 at 76 (identifying Mr. Norris’s

ownership of 1,000 sub-share certificates and Mr. Barry’s ownership of 300 sub-share

certificates); see also Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga.,

Inc., 892 F.3d 719, 726 (5th Cir. 2018) (noting that, at the pleading stage, the court “may rely on

the complaint . . . documents incorporated into the complaint by reference, and matters of which

23 Defendant cannot have it both ways. Rule 13 requires that counterclaims be “against an opposing party,” and “a person is an ‘opposing party’ for counterclaim purposes only in the capacity in which he was submitted to the Court’s jurisdiction.” Fed. R. Civ. P. 13(a), (b); Leon Tempelsman & Son v. TECC Corp., 107 F.R.D. 384, 385-86 (N.D. Tex. 1985) (Porter, J.).




a court may take judicial notice”) (quotation omitted).24

As to the Trust’s standing, the Fifth Circuit held that an issuer has standing to pursue

claims for declaratory judgment, like those that the Trust asserts here. See Waste Connections,

Inc. v. Chevedden, 554 F. App’x 334, 335 (5th Cir. 2014) (recognizing claim for declaratory

judgment by issuer under Section 14(a)); see also KBR v. Chevedden, 478 Fed. App’x 213, 215

(5th Cir. 2012) (affirming issuer standing to seek declaratory relief under Section 14(a)).25

Defendant artfully selects language from 7547 Corp. v. Parker & Parsley Development

Partners, L.P., 38 F.3d 211 (5th Cir. 1994), to give the false impression that the Fifth Circuit has

adopted a blanket prohibition on issuer standing under Section 14(a). Mot. at 14-15. In reality,

7547 Corp.’s holding is much narrower: only that voting rights are necessary for a shareholder

to have standing under Section 14(a) (i.e., shareholders who cannot vote in a proxy contest do

not have standing to challenge the accuracy of proxy disclosures). 38 F.3d at 230. 7547 Corp.’s

voting-rights approach is inapplicable when an issuer in a proxy contest seeks declaratory relief

because of a clear nexus between the injury of an uninformed vote and the remedy of a

declaration to rectify misinformation. See id. This serves the purpose for a Section 14(a) claim:

Allowing the corporation to pursue the violator under § 14(a) helps to protect the rights of the shareholders, who benefit from the corporation’s diligence. Therefore[,] the corporation acts not for its own benefit but rather for the benefit

24 To the extent the Court has any concerns about this purported technicality, Plaintiffs submit that it can be easily addressed and would respectfully seek leave pursuant to Rule 15(a)(2) to amend the complaint to add the Trustees in their capacity as shareholders or, alternatively, leave pursuant to Rule 24(b) to allow the Trustees to intervene in this action as shareholders. 25 This holding predominates in other jurisdictions, as well. See, e.g., Studebaker Corp. v. Gittlin, 360 F.2d 692, 695 (2d Cir. 1966) (explaining that if Section 14(a) claim can be brought derivatively, then Section 14(a) “must also authorize the corporation to do so on its own,” in part because in enacting the statute, “Congress anticipated protection from ‘irresponsible outsiders seeking to wrest control of a corporation away from honest and conscientious corporation officials.’”) (citations omitted, emphasis added)); Int’l Jensen Inc. v. Emerson Radio Corp., 96 C 2816, 1997 WL 43229, at *5 (N.D. Ill. Jan. 24, 1997) (“It is established that private parties harmed by any violations of § 14(a) have a private right of action to enforce the statute. . . . This includes both shareholders, who can bring derivative actions, and corporations themselves.”) (citation omitted; emphasis added); Ameribanc Investors Grp. v. Zwart, 706 F. Supp. 1248, 1253 (E.D. Va. 1989) (“[T]arget company standing is fully consistent with Section 14(a)’s underlying purpose. . . . Conferring on target companies a right to sue under Section 14(a) helps insure prompt detection and correction of proxy statement errors.”) (emphasis added)).




of the shareholders when it initiates a cause of action under § 14(a), harmonious with the legislative intent behind the statute. Thus, target corporation plaintiffs act for the class of plaintiffs for whose “especial benefit” § 14(a) was intended, and it is consistent with the legislative scheme to allow them to sue for proxy violations.

Int’l Jensen Inc., 1997 WL 43229, at *5 (emphasis added). Plaintiffs seek a declaration to rectify

Defendant’s misinformation campaign; thus, Plaintiffs have standing to pursue their claims.26

E. Defendant Has Not “Mooted” Plaintiffs’ Claims by Publicly Filing the Complaint

Defendant asserts that he should be fully shielded from liability under Sections 13(d) and

14(a)—and, thus, is permitted to say whatever he wants to shareholders, true or false—because

he has publicly filed the Complaint in which Plaintiffs seek to remedy his omissions and

misstatements. Mot. at 13-16. Defendant fails to cite any Fifth Circuit law on this point (or any

Circuit-level authority), nor a single decision from a District Court within this Circuit.27

But numerous courts from around the country, including Delaware, have addressed and

rejected Defendant’s argument in the specific context of a Section 13(d) claim. In Warner

Communications, Inc. v. Murdoch, 581 F. Supp. 1482, 1501 (D. Del. 1984), the court considered

26 The only other authority Defendant cites regarding standing (which is unpublished) also supports Section 14(a) issuer standing. See Ashford, 2017 WL 2955366, at *9 (“[C]orporations have been found to have standing under section 14(a) for purposes of seeking declaratory relief [relating to] excluding shareholder proposals from proxy materials.”). Although Ashford referenced only declarations of non-liability under Section 14(a), published authorities show that the declaratory and equitable relief available to issuers under Section 14(a) is broader. See, e.g. Gittlin, 360 F.2d at 696 (holding that corporation had standing to enjoin violation of Section 14(a), noting that “the only consequence of an injunction is that the defendant must effect a compliance with the statute which he ought to have done before”). Moreover, Chief Judge Lynn in a 2012 decision – in which Defendant’s counsel argued for issuer standing – implied that standing would be available in an action like this one by recognizing that issuers may have standing in “suits for injunctive relief or for corrective disclosure, not damages.” Tenet Healthcare Corp., 839 F. Supp. 2d 869, 872 (N.D. Tex. 2012) (citing Gittlin, 360 F.2d at 692; Ameribanc Inv’rs Grp., 706 F. Supp. at 1248). 27 In fact, Defendant does not cite a single decision from any jurisdiction supporting this proposition in the context of a Section 14(a) claim. And the Section 13(d) cases that Defendant relies on uniformly involve the filing of an amended Schedule 13D; Defendant has not filed an amended Schedule 13D here. Moreover, several of the cases upon which Defendant relies focus on Williams Act claims under Section 14(e) – not at issue here – and rely heavily on the particular legislative history of the Williams Act. See, e.g., Taro Pharm. Indus. v. Sun Pharm. Indus., No. 09 Civ. 8262 (PGG), 2010 WL 2835548, at *8 (S.D.N.Y. July 13, 2010). Even in that context, and even in the Southern District of New York, “[n]o case stands for the illogical proposition that the mere filing of a complaint moots any Section 14(e) claim.” Sodhi v. Gentium S.p.A., 14-CV-287 JPO, 2015 WL 273724, at *3 (S.D.N.Y. Jan. 22, 2015) (emphasis added).




whether “disclosure[] of the adverse claims completely satisfies 13(d)’s disclosure obligations

and moots any issue as to the ultimate merits of the claim.” The court determined that:

Permitting this type of cure . . . might [] significantly circumvent the disclosure goals of § 13(d) . . . Material facts might often be concealed and omitted from initial 13D Statements, to be cured only by subsequent disclosure of adverse claims which allege the omissions but which are disputed by the disclosing party. As a result, the true facts would often remain obscured and hidden from investors.

Id. (emphasis added). Ultimately, the court found that the “net effect” of defendant’s public

filing of adverse claims was “to inform investors of the possibility of the group’s existence,

rather than the fact of the group’s existence.” Id. (emphasis added); see also Arvin Indus. v.

Wanandi, 722 F. Supp. 532, 541 (S.D. Ind. 1989) (“[M]erely informing the public of the

existence of the dispute is not enough to make the case nonjusticiable.”); Meridian OHC

Partners, LP v. Davis, No. 16-cv-01161, 2018 WL 1368266, at *5 (D. Nev. Mar. 15, 2018)

(“Apparently, this lawsuit . . . [has] been publicized . . . and reported in [defendant’s] own

Schedules 13D. But those disclosures do not give shareholders . . . clarity. There is value in

clarity.”). Taken to its logical extreme, Defendant’s argument would render the disclosure laws

meaningless: any dissident could file false proxy statements and avoid liability by providing a

hyperlink to a lawsuit challenging the disclosures, while denying the disclosures’ falsity, as

Defendant does here. The Court should not permit this.

CONCLUSION

For all of these reasons, Plaintiffs respectfully request that the Court deny Defendant’s

motion for judgment on the pleadings.28

28 In the alternative, if the Court elects to dismiss any of Plaintiffs’ claims, Plaintiffs respectfully request leave to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure.




Respectfully submitted on July 15, 2019, SIDLEY AUSTIN LLP

s/ Yvette Ostolaza

Yvette Ostolaza Texas Bar No. 00784703 [email protected] Yolanda C. Garcia Texas Bar No. 24012457 [email protected] Tiffanie N. Limbrick Texas Bar No. 24087928 [email protected] SIDLEY AUSTIN LLP 2021 McKinney Avenue, Suite 2000 Dallas, TX 75201 Tel.: 214-981-3300 Fax: 214-981-3400

Andrew W. Stern NY Bar No. 2480465 (admitted pro hac vice) [email protected] Alex J. Kaplan NY Bar No. 4160370 (admitted pro hac vice) [email protected] Jon W. Muenz NY Bar No. 4705968 (admitted pro hac vice) [email protected] SIDLEY AUSTIN LLP 787 7th Avenue New York, NY 10019 Tel.: 212-839-5300 Fax: 212-839-5599 Attorneys for Plaintiffs




CERTIFICATE OF SERVICE

In accordance with Rule 5 of the Federal Rules of Civil Procedure, the undersigned

hereby certifies that on July 15, 2019, I caused a true and correct copy of the foregoing document

to be served electronically via the Court’s CM/ECF system on the following parties:

Robert C. Walters [email protected] Russell H. Falconer [email protected] GIBSON, DUNN & CRUTCHER LLP 2100 McKinney Avenue, Suite 1100 Dallas, TX 75201

Adam H. Offenhartz (admitted pro hac vice) [email protected] Aric H. Wu (admitted pro hac vice) [email protected] Peter M. Wade (admitted pro hac vice) [email protected] Luke A. Dougherty (admitted pro hac vice) [email protected] GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166

Tyler H. Amass (admitted pro hac vice) [email protected] GIBSON, DUNN & CRUTCHER LLP 1801 California Street, Suite 4200 Denver, CO 80202 Attorneys for Defendant/Counter-Plaintiff Eric L. Oliver and Counter-Plaintiffs SoftVest, L.P., Horizon Kinetics LLC, and ART-FGT Family Partners Limited

/s/ Tiffanie N. Limbrick Tiffanie N. Limbrick

ACTIVE 244693792



EXHIBIT 1



1

From: Walters, Robert C. <[email protected]>Sent: Tuesday, June 4, 2019 11:35 AMTo: Ostolaza, YvetteCc: Limbrick, Tiffanie; Garcia, Yolanda; Liekefett, Kai H.E.; Falconer, Russell H.Subject: Re: TPLT v. Oliver, No. 3:19-cv-01224 -- Response to Letter Dated 05-31-2019

Works great. Russ and I will come over.

Rob Walters GIBSON DUNN Gibson, Dunn & Crutcher LLP 2100 McKinney Avenue, Dallas, TX 75201-6912 Tel +1 214.698.3114 • Fax +1 214.571.2932 [email protected] • www.gibsondunn.com On Jun 4, 2019, at 9:03 AM, Ostolaza, Yvette <[email protected]> wrote:

[External Email] Would 9:30 am tomorrow work? Sent with BlackBerry Work (www.blackberry.com)

From: Ostolaza, Yvette <[email protected]> Date: Tuesday, Jun 04, 2019, 5:25 AM To: Walters, Robert C. <[email protected]>, Limbrick, Tiffanie <[email protected]> Cc: Garcia, Yolanda <[email protected]>, Liekefett, Kai H.E. <[email protected]> Subject: RE: TPLT v. Oliver, No. 3:19-cv-01224 -- Response to Letter Dated 05-31-2019 Rob, Your email is unfair under the law and the facts. We will get back to you, but you are better than just setting arbitrary deadlines (though I know there is pressure from your clients). I am sure you have never responded and produced to such a request in 8 business hours. Heck, I can’t get the list of attendees from the purported shareholder meeting that we requested over a week ago. I assume at the direction of your clients, Gibson lawyers refused to allow our team to copy at the meeting. Please send that to us or let us know whether Mr. Oliver, the purported trustee, is withholding from the Trust the sham meeting attendance. In terms of exchange of information, let’s plan on discussing discovery at our conference. We are anxious to move forward to in an orderly fashion with discovery and responding to your request.



2

I will get back to you with a specific time. Best, Yvette Sent with BlackBerry Work (www.blackberry.com)

From: Walters, Robert C. <[email protected]> Date: Monday, Jun 03, 2019, 11:36 PM To: Limbrick, Tiffanie <[email protected]> Cc: Ostolaza, Yvette <[email protected]>, Garcia, Yolanda <[email protected]> Subject: RE: TPLT v. Oliver, No. 3:19-cv-01224 -- Response to Letter Dated 05-31-2019 Yvette, Please. “Rob” is fine. There’s no need for the “Mr. Walters.” As for the trust’s response, it surprises us not in the least that it continues to resist legitimate books and records requests. What does “due course” mean? Tomorrow? Wednesday? Why won’t it just tell us whether it will or won’t provide the information we seek? We will then act accordingly. Let’s not make this more difficult than it needs to be. As for your response, I’m puzzled why you would conflate meeting on scheduling matters with our request for books and records. Your response only underscores that the trust continues to employ all available tactics to resist providing information to its holders.

But let’s not let getting together hold up us or the trust: I’m available tomorrow afternoon, Wednesday morning, Wednesday afternoon—you name it—if that moves us along.

We’ll expect the trust’s response by close of business Wednesday or we’ll move on our demand. The trust leaves us no choice.

Best regards. Rob Rob Walters

GIBSON DUNN G bson, Dunn & Crutcher LLP 2100 McKinney Avenue, Dallas, TX 75201-6912 Tel +1 214.698.3114 • Fax +1 214.571.2932 RWalters@g bsondunn.com • www.gibsondunn.com From: Limbrick, Tiffanie <[email protected]> Sent: Monday, June 3, 2019 6:56 PM To: Walters, Robert C. <[email protected]> Cc: Ostolaza, Yvette <[email protected]>; Garcia, Yolanda <[email protected]> Subject: TPLT v. Oliver, No. 3:19-cv-01224 -- Response to Letter Dated 05-31-2019 [External Email] Rob, Please find attached a letter from Yvette Ostolaza. TIFFANIE N. LIMBRICK Associate SIDLEY AUSTIN LLP 2021 McKinney Avenue Suite 2000



3

Dallas, TX 75201 +1 214 969 3530 [email protected] www.sidley.com

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EXHIBIT 2



DFAN14A 1 s002762x7_dfan14a.htm DFAN14A

UNITED STATESSECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14AProxy Statement Pursuant to Section 14(a) of

the Securities Exchange Act of 1934

Filed by the Registrant ☐Filed by a Party other than the Registrant ☒Check the appropriate box:☐ Preliminary Proxy Statement

☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

☐ Definitive Proxy Statement

☒ Definitive Additional Materials

☐ Soliciting Material Pursuant to §240.14a-12

Texas Pacific Land Trust(Name of the Registrant as Specified In Its Charter)

SOFTVEST, L.P.SOFTVEST ADVISORS, LLC

ART-FGT FAMILY PARTNERS LIMITEDTESSLER FAMILY LIMITED PARTNERSHIP

ERIC L. OLIVERALLAN R. TESSLER

HORIZON KINETICS LLCMURRAY STAHL

HORIZON ASSET MANAGEMENT LLCKINETICS ADVISERS, LLC

KINETICS ASSET MANAGEMENT LLC(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

☒ No fee required.

☐ Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

(1) Title of each class of securities to which transaction applies:

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7/15/2019https://www.sec.gov/Archives/edgar/data/97517/000114036119006815/s002762x7_dfan14a.htm



(2) Aggregate number of securities to which transaction applies:

(3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

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☐ Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

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*****

IMPORTANT INFORMATION

On April 9, 2019, SoftVest, L.P. (“SoftVest LP”) filed a definitive proxy statement (the “Proxy Statement”) with the United States Securities and Exchange Commission (the “SEC”) in connection with the solicitation of proxies for a special meeting of holders of the sub-share certificates of proprietary interests (the “Shares”) for the election of a new trustee of Texas Pacific Land Trust (“TPL”) to fill the vacancy created by the resignation of Maurice Meyer III (such meeting, together with any adjournments, postponements or continuations thereof, the “Special Meeting”). SoftVest LP will furnish the Proxy Statement to holders of Shares, together with a WHITE proxy card. INVESTORS ARE STRONGLY ADVISED TO READ THE PROXY STATEMENT BECAUSE IT CONTAINS IMPORTANT INFORMATION. Investors may obtain a free copy of the Proxy Statement, any amendments or supplements thereto and other documents that SoftVest LP files with the SEC from the SEC’s website at www.sec.gov, or by contacting D.F. King, SoftVest LP’s proxy solicitor, by phone (212-269-5550) or e-mail ([email protected]).

SoftVest Advisors, LLC, SoftVest LP, Eric L. Oliver, ART-FGT Family Partners Limited, Tessler Family Limited Partnership, Allan R. Tessler, Horizon Kinetics LLC, Horizon Asset Management LLC, Kinetics Advisers, LLC, Kinetics Asset Management LLC and Murray Stahl may be deemed participants in the solicitation of proxies from holders of Shares in connection with the matters to be considered at the Special Meeting. Information about such participants’ direct and indirect interests, by security holdings or otherwise, is contained in the Proxy Statement.

*****

The following is a copy of a press release made available by SoftVest LP on April 9, 2019:

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SoftVest, L.P., Horizon Kinetics LLC, and ART-FGT Family Partners Issue Letter to Shareholders of Texas Pacific Land Trust

Urge Shareholders to Vote For Eric Oliver Using the White Proxy Card

DALLAS, April 9, 2019 /PRNewswire/ -- SoftVest, L.P., Horizon Kinetics LLC and ART-FGT Family Partners, which collectively beneficially own over 25% of the outstanding shares of Texas Pacific Land Trust (NYSE: TPL), issued today the following letter to their fellow shareholders:

Dear Fellow TPL Shareholder:

We are writing to seek your support for the election of Eric Oliver as trustee of Texas Pacific Land Trust (TPL) at the special meeting of shareholders to be held on May 22, 2019.

As you may know, TPL’s governing document gives shareholders the right to cast their vote on trustees only when one of the three seating trustees dies, resigns or is otherwise disqualified. In fact, TPL has only held four shareholder meetings in thirty years.

The upcoming special meeting therefore is a unique opportunity for TPL investors to participate in the future direction of TPL. We encourage all TPL shareholders to cast their vote.

The undersigned are long-term holders of TPL shares, and currently hold in the aggregate over 25% of the outstanding TPL shares. Although TPL’s management likes to refer to us as “dissidents” and “activists”, all of us are heavily vested and rooting for the success of TPL. And we strongly believe that Eric Oliver will work with the two incumbent Trustees to make TPL a more successful company.

We believe Mr. Oliver will introduce a fresh perspective from a long-term investor that has studied TPL for over ten years, and is committed and capable to roll up his sleeves and work collaboratively with his fellow Trustees.

The two incumbent Trustees will be presenting their own nominee at the special meeting. And, unfortunately, until this time the Trustees and management seem more concerned about employing scare tactics and fear-mongering to get their nominee elected, than letting him explain what perspectives he offers to bring to TPL. We hope to see in the future more substantive discourse about the future of TPL.

We also hope that the two incumbent Trustees stop taking unqualified credit for the returns experienced by TPL investors the past few years. For that, we believe proper credit is due to the numerous exploration and production companies that have spent over $10 billion since 2013 drilling on TPL’s treasured royalties and land. In fact, it is the 1,178 wells drilled between 2014-2018 (37.26 net lateral miles) that have increased the Trust’s oil production over 600% and its gas production close to 1,000%. All investors may be interested to know there have been an additional 142 wells (5.0013 nlm) drilled year-to-date with 49 wells (1.46 nlm) currently drilling for another $1.5 billion spent so far this year, so we have good reason to believe the trend will continue. Being dealt a Royal Flush does not make one a good poker player.

We invite you to read the rest of this letter and our proxy statement for additional information about Eric Oliver and his commitment to TPL investors.

MR. OLIVER IS AN EXTREMELY WELL-QUALIFIED NOMINEE

We believe that Mr. Oliver is an experienced oil and gas investor with over 22 years of experience buying and selling properties and over 35 years of experience managing investments with an emphasis in the energy market.

Among other relevant experience:

Mr. Oliver currently serves as the President of SoftVest Advisors, a registered investment adviser that acts as an investment manager for clients, including funds and managed accounts, with investments in oil and gas minerals and royalties.

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Mr. Oliver was President of Midland Map Company, LLC, a Permian Basin oil and gas lease and ownership map producer since 1997, and recently sold in January 2019 to Drilling Info.

Mr. Oliver is Principal of Geologic Research Centers LLC, a log library providing geological data to the oil and gas industry with a library in Abilene, Texas.

Mr. Oliver has served on the Board of Directors of Texas Mutual Insurance Company since 2009, where he currently also serves as Chairman of the Investment Committee, with over $6,500,000,000 of total assets.

In 2007, through certain affiliated entities, Mr. Oliver led a team to successfully acquire the assets of the Santa Fe Energy Trust (formerly NYSE ticker SFF), which consisted of over 12,000 royalty and working interest properties in at least seven states.

MR. OLIVER IS COMMITTED TO FULLY EXPLORE CONVERSION OF THE TRUST INTO A DELAWARE CORPORATION

Mr. Oliver believes that the Trust would benefit from converting into a Delaware corporation, and subject to his duties as trustee, Mr. Oliver is committed to fully exploring this alternative.

Among other things, we believe that, as compared to trust law, Delaware corporate law has a more well-developed legal framework around matters of governance and investor rights, which in our view provides greater comfort and predictability to investors in a publicly-traded entity.

We believe that fundamental principles of modern corporate governance demand that investors have a right to vote on their directors at least once a year. In our view, life-tenured trustee positions do not have a place in a $6 billion market cap publicly-traded company.

Investors in a public company should simply not be forced to think of a trustee’s or director’s tenure in terms of his or her life expectancy.

MR. OLIVER IS COMMITTED TO FULLY EXPLORING THE BEST OPTIONS FOR THE TRUST’S NEW WATER BUSINESS

In June 2017, TPL announced the formation of Texas Pacific Water Resources LLC (TPWR), which focuses on providing a full-service water offering to operators in the Permian Basin.

We believe that TPWR’s activities could create various risks for TPL, such as risks related to workers compensation, leaks or rupturing of pipelines. In light of those risks, Mr. Oliver is committed to actively encouraging TPL to evaluate the existing water business and, with the assistance of outside consultants and other advisors, determine if it is advisable to grow operations internally, partner with a strategic partner, or sell the water rights to a third party and retain a royalty.

In addition, Mr. Oliver believes that any proposed capital expenditures and operating expenses incurred in connection with TPWR should have their respective expected rates of return carefully compared to the compounding benefits of retiring outstanding shares.

MR. OLIVER IS COMMITTED TO ADDITIONAL TRANSPARENCY

Mr. Oliver is also committed to a higher degree of transparency and more frequent updates to holders of TPL shares.

For example, we believe investors would benefit from drilling updates, drilled and uncompleted well updates, water production, water injection volumes, and engineering reports.

We look forward to engaging with many of you in the coming weeks.

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Your vote at the upcoming special meeting of TPL shareholders is very important, no matter how many or how few shares you own. Please sign, date and return the enclosed WHITE proxy card or voting instruction card today.

We thank you for your support.

Sincerely,

SOFTVEST, L.P. HORIZON KINETICS LLC

ART-FGT FAMILY PARTNERS

If you have any questions regarding your WHITE proxy card please contact our proxy solicitor, D.F. King:

Holders may call toll-free: (800) 848-3416Banks and brokers call: (212) 269-5550

E-mail: [email protected]

IMPORTANT INFORMATION

SoftVest, L.P. (“SoftVest LP”) has filed a definitive proxy statement (the “Proxy Statement”) with the United States Securities and Exchange Commission (the “SEC”) in connection with the solicitation of proxies for a special meeting of holders of the sub-share certificates of proprietary interests (the “Shares”) for the election of a new trustee of Texas Pacific Land Trust (“TPL”) to fill the vacancy created by the resignation of Maurice Meyer III (such meeting, together with any adjournments, postponements or continuations thereof, the “Special Meeting”). INVESTORS ARE STRONGLY ADVISED TO READ THE PROXY STATEMENT BECAUSE IT CONTAINS IMPORTANT INFORMATION. Investors may obtain a free copy of the proxy statement, any amendments or supplements thereto and other documents that SoftVest LP files with the SEC from the SEC’s website at www.sec.gov, or by contacting D.F. King, SoftVest LP’s proxy solicitor, by phone (212-269-5550) or e-mail ([email protected]).

SoftVest Advisors, LLC, SoftVest LP, Eric L. Oliver, ART-FGT Family Partners Limited, Tessler Family Limited Partnership, Allan R. Tessler, Horizon Kinetics LLC, Murray Stahl, Horizon Asset Management LLC, Kinetics Advisers, LLC, and Kinetics Asset Management LLC may be deemed participants in the solicitation of proxies from holders of Shares in connection with the matters to be considered at the Special Meeting. Information about such participants’ direct and indirect interests, by security holdings or otherwise, is contained in the Proxy Statement.

Investors:Edward McCarthy / Geoffrey Weinberg / Peter AymarD.F. King & Co., Inc.(212) 269-5550

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northern district of texas dallas division case no. 3:19 ... · case 3:19-cv-01224-b document 51...

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