As I mention in today’s column, InBev’s attack on Anheuser-Busch’s board will hinge on the question of how many A-B directors are subject to removal by shareholders. The process InBev is using, called written consent,   involves shareholders voting to remove the existing board and to elect a new 13-member slate.

InBev already has asked a Delaware court to rule that all 13 directors are subject to removal in this manner, and August A. Busch IV has stated (after some confusion) that he believes they are not.

The issue, as Matt Bodie of St. Louis University Law School explains on PrawfsBlawg, is whether Anheuser-Busch’s board is “classified” or not. A classified board is one that’s divided into two or more classes, with directors serving staggered, multiyear terms.

A-B directors served staggered three-year terms before 2006, when shareholders voted to declassify the board. But it phased in the change, and five directors elected in 2006 are still serving out a three-year term. So a case can be made that those five, at least, are still “classified” directors, and therefore not subject to removal by shareholders.

Bodie says it’s not clear who’s going to win this argument:

I don’t see an easy answer to this question.  On the one hand, the 2007 amendment did seemingly render the board no longer classified.  On the other, the five directors are still serving out a three-year term — a classified term.  I haven’t done a great deal of research on this, but it doesn’t seem like there’s clear precedent on the point.

Another business-law blogger, Gordon Smith at The Conglomerate, brings up the possibility that the entire board may be immune from ouster:

A-B could argue that it’s current board has two classes: directors to be elected in 2008 and directors to be elected in 2009. That’s a pretty straightforward argument that all of the directors are subject to removal only for cause.

Ultimately, though, Smith thinks InBev has the stronger legal case. He says of A-B’s argument:

I do not see how this is possible under the terms of the Delaware statute. Whether you are talking about a “classified board” or “classified directors,” it seems clear that all of the directors have to be involved in the classification scheme. In other words, a company cannot have a mix of classified and unclassified directors.