Business
Associations Class Notes
Read
the cases carefully! Shipman will start
calling on people next week. Read the
footnotes of Zahn carefully for the
terms of the preferred stock. “It’s a
fascinating case at about five different levels.” We’ll be looking at some cases that were in
earlier editions of the casebook that
Professional corporations
We’re
still in category four, talking about the business corporation. Let’s fill out that bit of the outline, and
then we’ll turn to today’s material, which is self-explanatory but crucial.
Hishon v. King
& Spalding
King
and Spalding was one of the truly prestigious firms in
What
was the issue? A single female associate
was passed over for partnership. She
sued, alleging that it was because of her gender. If that proved true, usually that creates a
right of action under Title VII. King
& Spalding hired the foremost civil rights litigator in the South. The argument was made by that lawyer that:
(1) partners are not employees (which is generally true). There’s no withholding of their
earnings. They usually are not covered
by workers' compensation. (2) A partnership
is an “intimate choice” of business associates and thus it would be improper to
apply this civil rights law.
The
Court came out very predictably: the first proposition is correct, but the
second proposition is not. If you hire
associates, holding out some possibility of partnership, it is discrimination
against employees (associates of a general partnership law firm are employees)
to discriminate. A 12(b)(6) motion was
reversed. Even if the plaintiff thought
she could win, would she really want to keep working there? The case was settled for a pretty big money
award. Note that the equal employment statutes
provide that if you prevail in your suit, you can get reasonable attorney’s
fees.
How
does such a settlement work? You need
the lawyer to sign off on it. The lawyer
is entitled under common law and federal law to the fees. The lawyer and client must agree on a
settlement. They should agree on how the
check should be drawn. It will usually be
sent to the lawyer. The lawyer may say: “Why
don’t you endorse it, I’ll endorse it, and then we’ll deposit it in the lawyer’s
trust fund. Then we’ll figure out the
division between us.” It gets more
complicated when other parties have subrogation rights and liens.
Up
to quite recently, professionals in all states were prohibited from incorporating. The state legislatures and courts thought
that they should stick with the general partnership or else their personal liability
would extend to their personal assets as well as the firm’s assets. Around 1960, law firms saw that their
colleagues in the general counsel’s offices of corporations were getting good
tax breaks on fringe benefits: for
example, pension plans and health insurance.
The law firms wanted relief and
went in two directions: (1) they went to Congress, and Congress passed the
Jenkins-Keogh Act, also known as Pension Plans for the Self-Employed. Jenkins-Keogh is not as liberal as pension
plans for corporation employees. So this
is only partial relief. (2) They went to
state legislatures, and most state legislatures, if not all, authorized professional corporations, a special
professional corporation statute. In
So
what happened here in
Clackamas v. Wells
So
this Supreme Court case is from 2003 from
In
the 2003 Supreme Court case, what was the issue? There was an EEOC action by a non-shareholder
employee against the corporation under Title VII of the federal civil rights statute. Title VII does not apply to a firm having fewer than 15 “employees”. But just what does “employee” mean?
Compare
this to
What’s
the problem with the 15? There were four
shareholder officers and directors. For
state workers' compensation purposes, they were treated as employees, and that
would also be the case in
The
approach taken by Stevens in the majority opinion is somewhat in the
middle. He says that he will remand the
case so that the Court of Appeals can apply his opinion. But just what is Stevens’s opinion? He says that he might agree with the corporation
as to shareholders who work for the
company and who have such large stock
holdings that they cannot be fired. It’s
a cannot be fired test! If a single doctor incorporated, and he was
the sole director, the president, and the sole medical employee, then no one
could fire him. The Second Circuit, or
Other
crucial aspects of this opinion: Stevens goes over the status of the
Restatement Second of Agency under federal law.
When agency issues com up in the context of federal statutes, the Court
has made it clear that they will go to Restatement Second of Agency and apply
it. Why?
You get national uniformity.
Stevens discusses the 12-14 items you look at to determine if a person
is a servant-agent, and he says that will apply. The truly important thing is usually the
person’s time allocation, place allocation, and minute-by-minute conduct
subject to legal power by a third person, then there is a servant-agent
relationship.
In
the Graham memo, we saw in the Cargill
case an expansion of this doctrine for liability purposes. If X has the same de facto power over Y, then Y is a servant-agent even if X isn’t
the direct supervisor of Y. Agency is a
conduit for liability.
Workers' compensation
There
has also been a recent Ohio Supreme Court case on control, either de facto or
legal. We had a client power company
that wanted a building built. They
entered a construction contract with a general contractor. Those contracts will generally give the
general contractor to subcontract certain functions. The general will usually subcontract out
electricity, plumbing, and (he thinks) air conditioning. Let’s look at this from the point of view of both
the Ohio Supreme Court and the Utah Supreme Court in Pinter.
In
the
Here,
the building company directed how the electric wiring on the construction site
was to be handled. They weren’t an
electric company, but they thought they knew everything! “Electrocuted doesn’t necessarily mean
killed.” So a guy was electrocuted and seriously
injured. He had a workers' compensation
claim through his boss, the subcontractor.
But money was scarce in that household.
So the guy sued the client electric company. The Ohio Supreme Court said: if you’re the
client on a construction project and you take excessive control, you have turned the people under you into your servant-agents. Both in contract and in tort, you’ll be liable. Too much is too much, and too little will get
you in trouble too.
Pinter
Construction Company v. Frisby
In
the Pinter case, as discussed in the
Why
is the state interested in having workers' compensation applied? Why?
(1) A lot of jobs are dangerous! (2) About half of
How
do you keep from getting hosed? If you’re
a homeowner and you hire a roofer, you ask for proof of workers' compensation
coverage and proof of liability insurance.
Both
workers' compensation and respondeat superior involve scope of employment determinations.
Each must be in the scope of employment.
As to agency, read the Nutshell carefully. Over the last hundred years, scope of employment
has expanded to protect workers: there can be scope of employment even if there
is a violation of the work rules of the employer. For example, a truck driver stopped for eight
beers in the middle of the afternoon, and then ran over a baby. There was a clear work rule against this,
either express or implied. So it would
seem that this act would not be within the scope of employment! It was held that the act was within the scope of employment and the employer was liable because
they could have checked his references and found out that he had been fired
from his previous job for drunk driving.
There
are two statutory exceptions to workers' compensation: (1) If you’re under
chemical influence on the job, you can’t recover. (2) If you intentionally injure yourself, you
can’t recover. One of the questions we’ll
cover later is the issue of a truck driver who decides to commit suicide by
driving his truck into a bigger truck on the highway. This is an analogy to “suicide by cop”. Clearly, there is no workers' compensation
because he left a suicide note that was given to the cops. But what about respondeat superior? Does it go that far? Shipman doubts it very much. In the review session, we’ll say that no one
can go to the widow and say that it’s alright and that he’ll be covered because
it would ratify coverage after the fact. You must keep everyone’s mouth shut in order
to avoid respondeat superior!
Study
this material hard, we are responsible for it.
We’ll come back to it throughout the course.
Malpractice insurance
Many
legal malpractice policies will try to exclude real estate and business
associations. Malpractice policies will
always start with the insuring clause. Insuring clauses are construed broadly to
protect insureds who usually don’t
have the bargaining power of the insurer. But if the coverage is contrary to public
policy because to allow insurance would pose a moral hazard, then even if the
insurance department has approved it, it can be knocked out on public policy
grounds. That’s what happened to
Perl. It seems rough, but it’s not as
bad as it seems. Most of this rule is
very pro-insured.
The
next clause will be an exclusion clause.
It will usually include fraud,
crime, dishonest conduct and intentional
conduct. In addition, today, to get
coverage for ERISA or environmental statutes, you’ll have to buy a special
policy. ERISA is a federal statute: the
Employee’s Retirement Income Security Act.
It’s introduced briefly in the Nutshell on individual employee rights.
What’s
the game that the insurance companies play?
Just after the insured the formal, written, signed claim with the company (which is a prerequisite, along with
immediate notification of the insurance company when something happens). Right after the claim is filed, the insurance
companies have on their computer reservation
of rights letters. The insured has
informed the insurer and has filed your claim.
Then you get a reservation of rights letter. They tell you that they have your claim and
they say that they will defend you. The main reason people get liability
insurance is to defend against B.S. lawsuits.
The other thing that you want from insurance is coverage. Some cases really
do have merit!
At
this point, you should go hire a good plaintiff’s lawyer who will send to the
insurance company the Zoppo
letter. Zoppo is an Ohio Supreme Court case from the 1990’s on bad faith by the insurance company. If there’s bad faith by the insurance
company, they are liable, and if it’s serious
enough, as in Zoppo, punitive
damages will flow. Remember, in
Usually,
nothing will come of the reservation of rights letter. So why do they send it? By statute and common law, if they don’t send
the letter and then defend you, they are estopped
from affirming the exclusions or lack of coverage later. About one time in ten after the reservation
of rights letter, the insurance company will file a declaratory judgment action separate from the one in which you’re
being sued. In most cases, the judge in
the first suit will get this judgment over to a colleague on the
So
we had a declaratory judgment action in Perl. In the 1950’s, it was hornbook law that if
there was no coverage, then there was automatically no duty to defend. Since then, it has evolved more toward the
rule in the first Perl case, referred
to in the second one, which is that the mere presence of allegations that would take things out of the policy
will not cause the duty to defend to go away, even if, at the end of the day,
there is no coverage.
In
Perl v.
Any
attorney has the duty of care, the duty of loyalty, and the duty to communicate
up-front all material facts. Here, the
second and third were violated because the insurance adjuster used to work for
the Perl firm, and the attorney didn’t run that fact by his client. He should have explained it and gotten her
consent. Clear up the conflicts of
interest up front, because they can kill you!
It’s a contingent fee contract with a high contingent fee for
settlement, 40%. The client wasn’t
complaining about that. The client wasn’t
complaining about the negotiations with the insurance company. She got $50,000 and $30,000 after the contingent
fee was paid. But of course, to use
modern terminology, “she felt used and abused”, and that generates
lawsuits. Are people entirely rational
about what they sue about? No. Attorneys must keep their clients totally
informed day-by-day. Someone who is kept
up-to-date is not likely to feel used and abused. That’s common sense.
So
the client sues. What are the causes of
action? (1) negligence, (2) fiduciary
duty, (3) fraud, and (4) a per se
rule in Minnesota and three or four other states: any agent who misbehaves significantly toward the principal
during the employment must refund the
whole amount paid, even if the work
was good and there were no actual damages.
The latter is called a prophylactic
rule. It’s designed to prevent harm
and strike the “Fear of God” into agents so that they’ll do right by their
principals.
About
25 years ago, this way applied by a bankruptcy court in
The
Supreme Court of Minnesota and the lower court agreed that there was no cause
of action alleged in common law negligence or common law fraud because for any
tort, you must plead and prove an actual
legal injury, that is, damages. Consider the general fiduciary duty claim:
you must plead and prove some actual legal injury. If you’re seeking an injunction up-front, probable damages are enough. Next, we came to the fraud exclusion. The court held that there are two types of
fraud: (1) actual legal fraud with scienter, and (2) constructive or equitable
fraud between the fiduciary and the beneficiary of the relationship. Thus, they held that the second type of
fraud, which is basically unfairness,
does not trigger the fraud exclusion. So
the fraud doesn’t apply. Does the
coverage clause cover the refund of fees?
They said yes. They follow the
maxim that insurance policies are construed, when reasonable to do so, to
benefit the insured. The coverages are
interpreted broadly, and the
executions are construed narrowly.
What
about the public policy arguments? As
the firm itself, its ability to refund is based entirely on respondeat
superior. The firm did not tell Perl to
do what he did, and they didn’t ratify what he did. But, coverage of Perl, the actor, is against public policy. When an insurance company covers both
principal and agent, principal cannot recover from the agent when the principal
has to pay off to a third party. But,
the court says, the result here is $20,000 to the plaintiff, to be paid by the
insurance company on behalf of the firm.
How do we equalize with Perl? The
answer is that when the insurance company pays off on behalf of the law firm to
the plaintiff, they’re subrogated to her rights. Also, they are subrogated to the rights of
the firm against Mr. Perl. Therefore, the insurance company will cut a
check to the plaintiff and then, on remand, the trial court is going to enter a
judgment against Mr. Perl personally for
$20,000.
Was
all this litigation worth it to the plaintiff?
Not objectively. Two trips to the
Minnesota Supreme Court could take years and tens of thousands of dollars. Money is always among the top three reasons that people sue, but
it is seldom #1, according to Shipman.
The client was pissed off! She
wanted the court to find that Perl was a bad S.O.B. The moral of the story is to keep your clients happy. Watch how a doctor practices: they are very
cagey about that. They are always asking
how you feel about things, asking you to telephone between visits, and telling
you that you can call at home.
Start
your outlining and your glossary this weekend!
Don’t let a weekend go by without bringing your glossary and outline
up-to-date!