Rolling Cone Issue #31 - A Message to Whoever Jochanan is Calling to Cross the Picket Line and Join the Independent Board
If Jochanan or Magnum has approached you about a Class I seat on the Ben & Jerry’s Board — speak to Ben and Jerry and read the legally binding merger agreement (linked below) before you answer.
Unfiltered. Uncomfortable. Unapologetically Ben & Jerry’s.
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Is this really the line you want to cross?
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What it says
Section 6.14(a) of the Merger Agreement, in plain language:
“a majority of the Directors then in office in each Class shall designate the candidates for election to the Board of Directors in such Class each year, and the Shareholder of the Corporation shall cause the election of such candidates.”
Class I Directors pick Class I Directors. Not the CEO. Not the Shareholder. Not Magnum.
“The Shareholder of the Corporation shall remove any Class I Director at the written request of at least a majority of the directors of such Class then in office and shall not otherwise remove any eligible member of the Company Board.”
One way to remove a Class I Director. A written request from their own class. Nothing else.
The Shareholder gets two seats on the board. The rest are independent — and Class I Directors must always hold a majority. That is the legally binding contract and it couldn’t be clearer.
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What that design was for
Ben Cohen negotiated this agreement and swore in a federal declaration it wouldn’t have been signed without these protections — that Unilever’s bid won in 2000 because of them. A board the parent company can remove at will isn’t independent. Untouchability is the independence.
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What happened instead
No majority of Class I Directors ever signed a written request removing anyone. Instead, Magnum claims to have changed the bylaws — writing in new eligibility requirements, then declaring the sitting Class I Directors ineligible under the terms it had just written. Even Magnum’s own brief admits its changes didn’t alter “Section 6.14(a)’s requirement that a majority of the Board consist of Class I Directors.” Their defense isn’t that the requirement doesn’t exist — it’s that emptying the board to zero somehow doesn’t violate it.
A board that must always hold a Class I majority. Zero Class I Directors filled. Square that circle.
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Why the seat you’d take isn’t legitimate
There are no Class I Directors left to nominate anyone — which the contract requires. So you’d be chosen by Senf and Kruyt: the CEO and the Shareholder’s own appointee, using a fallback clause Magnum wrote into the bylaws the same week it claims it emptied the board. The people the seat is supposed to be independent from would be the ones filling it.
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What you’d be crossing
The Independent Board fighting this in federal court. The Ben & Jerry’s Foundation defunded and staff removed from the building. Ben Cohen’s campaign — 100,000 signatures delivered to Magnum, a scoop shop full of supporters, Bernie Sanders on the call, 20,000 VPIRG members mobilized behind him. Jerry Greenfield, who resigned after 47 years, writing, “Ben & Jerry’s has been silenced, sidelined for fear of upsetting those in power. If the company couldn’t stand up for the things we believed, then it wasn’t worth having a company at all.”
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The side you’d be picking
Taking this seat doesn’t fill a vacancy. It legitimizes a process the contract that Ben negotiated doesn’t allow, run by people the contract didn’t authorize to run it — while a federal judge hasn’t ruled on any of it.
This is what it looks like when powerful, wealthy interests decide the rules are optional as long as you have enough lawyers and enough money to outlast anyone who objects. We’re watching that play out at a much bigger scale in this country right now. At this moment in history, we’d predict that lending your name and legitimacy to help it happen at Ben & Jerry’s won’t age well.
Saying yes is picking a side. Know which one it is.
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A concerned reader of The Rolling Cone
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P.S. — Please understand, we’re trying to do you a favor. We thought you’d rather hear this now than to read your own name in an upcoming issue of the Rolling Cone.
Link to the merger agreement here, we recommend you read section 6.14.
Got a tip? We protect our sources. believeyoureyes@proton.me
PPS: The legal defense fund for the Independent Board is still active. You can give anonymously. Any amount helps. Join the fight: https://www.gofundme.com/f/xv3m85-ben-jerrys-legal-defense-fund