Corporations Outline


Table of Contents


Business (or for-profit) corporations. 3

The corporate family tree. 3

Securities. 4

Rule 504. 9

Rule 506. 11

Guaranty and suretyship. 13

Taxation. 14

Tax consequences of different forms of corporations. 14

Subchapters C and S.. 14

LLCs and Subchapter K.. 15

Professional corporations. 16

Workers' compensation. 18

Malpractice insurance. 19

Corporate statutes. 21

Notes. 24

Four flavors of action. 26

Sweat equity and capital 28

Executive stock options. 30

Equitable subordination. 34

Contractual subordination. 34

Bearer instruments. 36

Security title. 38

Dissolution. 39

Deadlocks. 40

Shareholder voting. 40

Requirements for a valid vote. 41

Valid call 41

Valid notice as to time, place, and purpose. 42

Quorum requirement 43

Valid vote. 44

Formation. 49

Organizing the company. 49

Regulations and bylaws. 49

Pre-incorporation contracts and premature commencement 50

Classes of corporations. 56

Ultra vires – R.C. 1701.13. 58

Disregard of the corporate fiction. 61

Extraordinary transactions. 69

Dissolution. 69

Statutory merger. 70

The de facto merger doctrine. 70

Control share acquisition. 72

Subscriptions versus options. 72

Par value. 73

The Ohio rule regarding the disregard of the corporate fiction. 75

Preemptive rights in Ohio. 75

Common law rule regarding indemnification without a contract 77

Indemnification. 80

Moral hazard and indemnification by express contract 81

The law firm’s role in offerings. 86

Comfort letters. 87

Connecting the ’33 and ’34 Acts. 88

Covenant to register. 92

Close corporations. 93

Corporate norms. 93

Agency in the contract setting. 98

Actual authority. 98

Apparent authority. 99

Cognovit clauses. 105

Fiduciary duties of stock redemptions. 107

Stock dividends. 108

Duties of care of loyalty and of full and fair disclosure. 116

Not-for-profit corporations


Not-for-profit corporations will not have shareholders, they will have members.  The people who run the not-for-profit will be called directors or trustees.  Below them will be officers.  Beneath them will be non-officer executives.  And below that, you have “the people who actually do the work”.  There will be creditors in a not-for-profit corporation.


At the end of §§ 1701 and 1702, they both state the following: “§ 1701 applies to corporations formed under other chapters (e.g. § 1702), except to the extent that § 1702 is inconsistent with § 1701, in which event you go to § 1702.”  Is it always to determine when there is inconsistency?  No.  Go to § 1702, and you’ll find the mirror image of that.  It says: “In construing this chapter, construe it with § 1701, except if § 1701 is inconsistent, in which case use this statute.”  The specific trumps the general every time.


The NYSE is organized as a New York not-for-profit corporation.  All not-for-profit corporations have members who elect directors or trustees.  They don’t have shareholders, but they do have creditors.  There are two big subdivisions of not-for-profit corporations:  (1) Charitable, religious, educational and corporations for the prevention of cruelty to animals – The most favored not-for-profits are those that meet Internal Revenue Code § 501(c)(3).  To gain this status, you must file papers with the IRS in advance to convince them that you’re charitable.  One requirement is that no insider can have an undue right to the income or assets of the foundation.  In practice, that means that the promoter can be a trustee, director, or president and can collect a reasonable salary and benefits, including a reasonable salary plan.  Some people who run charitable corporations get good money!  If you are a charitable organization, you’re governed by ordinary state corporation law and also the law of charitable trusts.  If you’re a § 1702 charitable corporation, you’ll be governed by both § 1702 and § 1701 (to the extent that it’s not inconsistent), and also by the law of charitable trusts.  If you’re going to start a charitable organization, though, do it under § 1702.  If you get into a dispute over trust law, you’ll have to go to a treatise.  Under § 503(c)(3), you’re exempt from federal income taxation.  You’re also exempt from most federal excise taxes.  You can also get an exemption from real property taxes!  But that’s not the end of the financial feast!  Under IRC § 170, within certain percentage limits, donors making donations to you get a federal income tax deduction.  (2) Non-charitable not-for-profits – § 503(c)(6) describes business leagues, which provide some tax breaks, but not nearly as many as if you are a § 501(c)(3).


Business (or for-profit) corporations


In Ohio, these are governed primarily by § 1701.  The promoter wants a vehicle that he can (1) raise money with (to entice inactive investors to put their money in), (2) can control (the promoter wants to control the board of directors because it will determine who the officers and highly paid employees are and who gets the fringe benefits), and (3) if things go to hell he can minimize his liability (subject to qualified exceptions for disregard of the corporate fiction; but the inactive investor seldom gets reached).  Who can be tapped (that is, who will be liable) if things go wrong?  What about deadlock?


The corporate family tree


Investors are people who invest money in the corporation.  “Money to a corporation is like blood to humans: without it, you die.”  Creditors (e.g. owners of company bonds) take first upon dissolution.  Dissolution has a different context in a corporate situation than in a partnership situation: it means termination of legal existence.  Creditors take first, and if there’s anything left, then the equity investors take what’s left.


All investors other than creditors are called equity investors, for example, owners of common or preferred stock.  Upon dissolution, a preferred stock owner takes after creditors but before common stock.  We will study a little bit about options on equity in this course, primarily options on common stock.  Options are used primarily in the context of executive stock options, which we’ll study closely.  But, the term has a broader application.  A warrant is a long-term option that is transferable.  For a few companies in this country, there are perpetual warrants out there that are occasionally traded on the stock exchange.  Executive stock options are nearly always non-transferable, with one exception.  If you die, your beneficiaries get the option and usually will have the opportunity to exercise the option if they want to.


Voting stockholders elect the directors.  There are also non-voting classes of stock in most states, including both Ohio and Delaware.  The directors have several jobs.  The most important one is the hiring and firing of officers.  Officers are very high-level management employees with a formal legal title: “executive vice president” or whatever.  The other roles of the directors are to pass major transactions, to monitor the officers, and to set long-range plans and policies.  The directors are advised by lawyers, CPAs, management consultants, and investment bankers.




Corporate securities determine, among other things, who controls (that is, who elects directors), which in turn controls who gets the good jobs (since the directors choose the officers), and also what cash flow will go to the shareholders.  The most junior equity (usually common stock) captures the upside.  It is invariably the common stock that elects directors.  Sometimes you’ll see voting preferred stock, but not all that often, so we’ll call common stock the most junior.


If a company sells its assets and is liquidated and it’s paying off its security holders, creditors take first, preferred stockholders take second, and common stockholders take third.  Those most junior stockholders will get nothing unless the creditors and common stockholders are satisfied in whole.  On the other hand, the holder of a fully secured mortgage note (the most senior debt) is the most protected when the downside comes.  The unsecured creditors, that is, the creditors with no lien, often take nothing or close to nothing in bankruptcy because the secured creditors may have placed first mortgages on almost everything.


The first version of R.C. Chapter 1707 was passed in 1913.  The first state statute was in Kansas in 1912.  The Kansas Secretary of State that the farmers were being sold “so many pieces of the blue sky”.  This is why we call state securities statutes “Blue Sky” statutes.  There is a CCH “Blue Sky” Reporter.  The state statutes provide for registration of securities at R.C. 1707.09, which in effect says that unless exempt, every person must first register every security before you offer it for sale in that state.  The exemptions in the Ohio Act are found in R.C. 1707.02 and .03.  In the Securities Act of 1933 you’ll find the same stuff in § 3, 4, and 5.  Just before World War I, the Supreme Court upheld the constitutionality of the state “Blue Sky” statutes.  So R.C. Chapter 1707 has a “don’t breathe” clause, and then exemptions like .02(E).


A security listed on any major stock exchange or listed on the national market system of NASDAQ is exempt from registration by everybody.  But there is no comparable thing in the federal statutes.  If GM makes a public offering, they will have to register just like a startup company.   But that’s not the end of the story.  A big public company like GM can use a shorter registration form and, in fact, their offering will go through faster than an IPO because the SEC is very aware of GM and its reputation for high solvency.  Broker-dealers must register under R.C. 1707.14.  Court cases have held that if you have more than an incidentally small number of transactions, you’re in the business.


In R.C. 1707.13, there is a substantive fairness provision.  If the commissioner can find that the securities are to be sold on grossly unfair terms, he can stop it.  There is no similar provision federally.  But if you try to register federally and it’s a real screwjob, then the SEC will delay you forever.  In R.C. 1707.29, .44 and .45 are criminal provisions.  .44 reads like a regular high-scienter criminal statute.  But .29 says that if you claim that you don’t have scienter because you didn’t have knowledge but if a reasonable investigation would have produced such knowledge, then you are presumed to have known what you would have learned from a reasonable investigation.  In other words, ordinary negligence is the mens rea!  R.C. 1707.38-.45 deals with civil liability.


The first federal statute was the Securities Act of 1933.  This deals with public offerings by companies and their affiliates.  That usually includes directors, high officers, and anyone who is a controlling person.  The Securities Exchange Act of 1934 deals more with broker-dealers, stock exchanges, the trading markets and the NASD.  Just what is the NASD?  It’s a Delaware-chartered not-for-profit company subject to heavy SEC oversight which governs the “over-the-counter” (that is, not on a stock exchange) markets.  The NASD runs quotation systems.  There is a national market system which is automated.  There are also other automated systems, the most prominent being the bulletin board.  The smaller public companies in Central Ohio are found on the bulletin board.  They also have the “sheets”, that used to be mimeographed, but now they’re more electronic.  Excluding mutual funds, there are only 14,000 public companies.  There are 8,000 mutual funds.  That’s out of several million business associations in the country.  How did the NYSE come about?  They started out under a tree, then they got a building.


The first question with regard to any federal securities act is whether it is a security.


Smith v. Gross – Here was an entrepreneur selling earthworms.  Earlier cases had held that if you buy cattle from an entrepreneur and he keeps and feeds them for you, then that is an investment contract.  But if you take care of your own cattle they are not securities.  Smith brought a suit under § 12(a)(1) under the Securities Act of 1933 for rescission.  That statute says that if you should have registered but didn’t, the investor can rescind and get his money back.  Of course, the investor will only rescind when the stock goes down!  So we have a suit against the vendor of the earthworms.  There was clearly a public offering here and Regulation D was not complied with.  There was no registration statement.  But, of course, if there is no security, then there is no recovery under the Securities Act of 1933.  They said that the cattle cases aren’t applicable.  The court held that the only market for earthworms was the entrepreneur buying them back when they grew up, but that’s still an investment contract and therefore there could be a rescission.


Securities and Exchange Comm’n v. Ralston Purina Co. – If an issuer makes a private offering, it will be exempt.  This is called statutory § 4(2).  It can apply to any kind of company.  There is no dollar limit on statutory § 4(2).  You also don’t need to file notice with the SEC in order to perfect the exemption.  In Ohio, the statute is .03(Q), and you do have to file to perfect the exemption.  If you meet either statutory 4(2) or .03(Q), you can pay the fee and do it.  There is a tricky statute in Ohio that is .03(O), which doesn’t require filing.  So you define what the offering is, which involves “come to rest” and “integration”.  In this case, neither party was arguing with the other over these two issues.  This case involved no charge of fraud or unfairness.


The company was a very prosperous NYSE company in St. Louis that generally had stock of increasing value from 1941 on.  They could have filed a short form with the SEC, but they didn’t.  The S-8 is limited to public companies and its employee stock options.  That wasn’t used.  What remedy does the SEC seek?  They only want an injunction forcing the company to file.  This is not a criminal proceeding.  The company picked out employees who they thought were up and coming, and they offered stock in the company to them.  The people who were picked out ranged from the deck foreman to the President and CEO with a lot inbetween.  It was a broad group of people.  In the 1930’s, the SEC general counsel had issued his opinion that once you define what the offering is, if the number is 25 or fewer, there will nearly always be an exemption from registration.  If the number is 26 or greater, it will not be a private offering.  The Supreme Court looked at the legislative history and found a congressional statement saying that generally speaking, if you make a public offering to employees it’s like a public offering to anyone.


The Court could have gone either of two ways: (1) it could have accepted the SEC rule of thumb, saying that the company was way over the 25 number, and thus there was no private officer.  (2) It could have said that the SEC could have its own rule of thumb, but that’s not binding on the courts.  The latter is what they actually said.  The test for determining whether it’s public or not is the “needs to be served” test.  If the people need the protections of a registration statement (which will contain a prospectus) then whether it is to few or many offerees, it’s a public officer.  Justice Clark tried to get more specific, saying that if the offering were limited to people who could “fend for themselves” and all of those people have access (emphasis on access) to information that a registration statement would provide, then it is non-public regardless of the numbers involved.  In other words, in this particular case, had the offering been limited to the ten top officers in St. Louis, it would have been fine because those ten people can “fend for themselves” and they had access to the information that a statement could provide.


The Wall Street law firms interpreted the case as saying that we can go further if Chrysler wants to sell its 5 year notes to the 150 biggest banks in the country, they put together a private placement memorandum containing the essential financial, accounting, and narrative statements and they hold a meeting giving top representatives from those banks access to management to ask questions, then even though there are 150 offerees then it’s private.  That’s the only good news from this case.


Justice Clark’s last point was that the burden of pleading and proving an exemption is totally upon the proponent of the exemption.  That’s also true in R.C. 1707.38-.45.  Later Fifth Circuit cases made it clear that the proponent of the exemption had to come into court with the list of the exact names of every offeree and further proof that nobody else was approached and show that each of those met the “needs to be served” test.  Those Fifth Circuit cases were awful.


Ralton Purina established, among other things, that with all exemptions the burden of pleading and proof in every detailed respect falls upon the claimant of the exemption.  R.C. 1707.38-.45 establishes the same thing in Ohio.  Both federally and in Ohio, the fact that you’re exempt from registration doesn’t exempt you from implied or express civil liabilities.  For example, R.C. 1707.38-.45 apply equally as to registered transactions as they do to exempt transactions.


State law is often more demanding than federal law.  For example, R.C. 1707.29 and .44-.45, in a criminal case, make a defendant far more vulnerable than in a federal criminal prosecution.  The major case on the subject is State v. Warner out of the Ohio Supreme Court from the 1980’s.  The court held that R.C. 1707.29 means what it says: the mens rea element in a criminal prosecution under R.C. 1707.29 is simply ordinary negligence.  Federally, the mens rea element is willfulness, which has been construed as a very high burden on the federal government.


How much does federal law preempt state law?  The short answer is some but not much.  In the 1990’s, there were three big federal statutes.  First, in 1996, there was NSMIA, or the National Securities Markets Improvements Act.  This Act has several preemptive provisions.  As to investment advisors, the federal government takes over primary regulation of the big ones and the states take over primary regulation of the little ones.  As a result, in the 1990’s, Ohio passed an investment advisors act that covers financial planners.  NSMIA also says that if a company is listed on a major exchange or on the national market system of the NASD, no state can require registration of the issuance of securities by that company.  It reads just like R.C. 1707.02(E) in Ohio.  Before this federal Act, several states like Florida did not exempt nationally-listed corporations from registration.  Only the state of incorporation can deal with alleged securities and fiduciary duty violations.  As to mutual funds, certain things were reserved to the SEC, while the states can do certain other things.  We’ll later discuss the provision dealing with Rule 506.


In 1998, an act was passed that says with respect to certain fraud and other suits they will become subject to the 1995 federal act (which was very pro-defendant).  If they are in state court, they are to be removed to federal court where the defendant advantages of the 1995 Act apply.  There is a big exception, though.  In an action for breach of fiduciary duty under the law of the state of incorporation, the 1998 Act doesn’t apply, and if the plaintiff’s lawyer is careful in drafting, you can avoid the 1995 Act.  In CTS from the U.S. Supreme Court in the 1980’s, the Court said that regulation of tender offers by the states must be reasonable and limited and if they are not reasonable and limited then they will be preempted.


So there is some federal preemption but not a heck of a lot.  Common law remedies are not displaced by federal or state securities laws and are the best more often than you think!   Under the federal securities laws, a securities broker must avoid recommending unsuitable securities to purchasers.  There is a remedy under Rule 10(b)(5).  Under 10(b)(5), it is only if the customer proves that the recommendation was made with scienter.  That’s hardcore.  In a big Ohio case, a NYSE member broker-dealer recommended some investments to a customer, and they went south.  The customer said that given his precarious financial position, they should not have recommended a speculative security.  If he had sued under 10(b)(5), it would have had to go to federal court because the Securities Exchange Act of 1934 says that all actions under the Act must be in federal court (which is different from the other federal securities statutes).


The plaintiff argued that Olde & Co. is a member of the NYSE and that one of the rules of the NYSE says that every member must “know thy customer”.  The primary purpose of the rule is to protect the member firm.  If a customer doesn’t buy up after he buys, the member firm is responsible to the party on the other side of the transaction.  The court held that under Ohio common law this created a statutory tort for a negligent failure to observe suitability, and the plaintiff won!  Shipman says that the plaintiff’s attorneys were very smart.


Cases like this will usually go to arbitration.  Usually, broker-dealers will force customers to sign arbitration clauses up front, and usually the broker-dealer insists on arbitration.  We don’t know why they didn’t do so here!  In arbitration, suitability claims under 10(b)(5) require scienter, at least in theory.  But in practice, arbitrators will often give recovery for mere negligence on the part of the broker-dealer firm regarding suitability.  On the other hand, studies of all massive arbitration system, like the securities system, indicate that arbitrators tend not to give lavish or large awards.  They cut down on the amount.  They’re more liberal in giving the plaintiff something, but the dollar amounts are smaller.


Some examples of exemptions


Around 93% of all transactions are exempt.  Let’s go over some of the important ones.  § 4(1) says that if you’re not an issuer or an underwriter or an affiliate of the company, stock which you purchase through the organized trading markets will be exempt.  For example, I’m contacted by Johnson in Dayton who is a physician.  Three months ago, he bought GM stock, registered in his own name, through the NYSE.  He is not a director or officer of GM.  Neither is his wife or any other relative.  He doesn’t meet the 10% rule, which is the third way you can be an affiliate.  If you add up the GM stock all of his family owns, it’s still well under 10% of the shares outstanding.  Insofar as the Securities Act of 1933 is concerned, he has a § 4(1) exemption.  Insofar as Ohio law is concerned, R.C. 1707.02(E) exempts him.  To sell the stock, he will have to sell it through a broker, but he had to have a brokerage account in order to buy the stock in the first place.


If you are an affiliate as defined in Rule 405, you must construe § 4(1) with § 2(11), which gets tricky.  2(11) defines “underwriter” in terms of a person taking with a view to distribution.  In United States v. Wolfson out of the Second Circuit, the court held that in a criminal case the last sentence of § 2(11) applies not only to the first sentence of § 2(11) but also to § 4(1), meaning that an affiliate owning stock can sell only in one of only three ways: (1) The company files a registration statement for him.  This happens only once in 10,000 times because it’s very expensive.  (2) As to public companies, Rule 144 provides a limited, specified exemption that is widely used.  (3) He can make a non-distribution.  Look at 2(11)’s first sentence, and you’ll find the word “distribution”.  The SEC concedes that if an affiliate makes a non-distribution, 4(1) applies to him.


An affiliate can sell under Rule 144 on the stock exchange (but there’s a lot of paperwork).  He will get market price for his stock on the exchange.  He can legally make a non-distribution in theory?  The SEC says that the term “distribution” in § 2(11) equals “non-public offering” in § 4(2) as defined by Ralston Purina.  He could sell the stock to a big mutual fund with a legend saying that the taker is buying for investment and not distribution.  The taker cannot sell for one year.  If there is full and fair disclosure to the mutual fund up-front, that would be perfectly legal.  However, he won’t do that because he’ll have to sell at a 15-40% discount.  So he’ll go to the internal general counsel to get the paperwork going to sell and he’ll sell under Rule 144 at the full market price.  So to construe § 4(1) you must construe it with § 2(11), United States v. Wolfson, and Rule 144.


This accounts for the fact that in the United States, many major investors elect not to sit on the board of a company that they own a lot of stock in.  If they sit on the board of the company, they will be subject to the restrictions of Rule 144 and Rule 10(b)(5).  On the other hand, let’s say a rich guy in New York wants to buy 4.5% of GM.  He can go to his bank and the bank can purchase in “street name”, and as long as he stays under 5%, he doesn’t even have to surface under 13(d).  He will prefer to remain anonymous because if that is his only connection to GM and his family owns no GM stock and he acquired the stock over one year ago on the NYSE, then he can sell it at any time!  If, on the other hand, he’s on the board, he has all the Rule 144 limits plus, if there is material, undisclosed and unfavorable information about the company, 10(b)(5) absolutely precludes him from selling.  In Europe, the big companies all have the big investors on their board.  But in this country, a lot of the people who are big investors prefer to stay off the board.  As long as they’re under 10% including family holdings and as long as they don’t seek out or get inside info, they can sell when they want to and they can buy when they want to.


Another person that cannot use § 4(1) is someone who has purchased stock in an exemption and sells before it has come to rest.  That is why under Regulation D securities sold under that exemption must be legended.  In the public trading markets, delivery to your broker of a legended security is per se bad delivery!  Therefore, if you buy in a 506 offering and get legended securities, then even if the company is a public company you’ll be unable to sell the securities until you get the company to issue you a “squeaky-clean” certificate.


Can a person be both an affiliate and also not meet the “come to rest” period?  Yes.  What’s the “come to rest” period?  At common law, it is two years.  Under United States v. Sherwood out of the Southern District of New York in the 1950’s, under Rule 144 for a public company the period is cut to one year.  Public companies are treated better under the securities laws in about eight ways.


Rule 504


The SEC introduction to Regulation D talks about “come to rest” and integration.  Rule 504 is the “mom and pop” exemption.  This exemption cannot be used by a public company or investment company.  There is a dollar limit of $1,000,000.  Under all of Regulation D, there can be no general advertising.  The same is true under § 4(2).  If you’re an Ohio entrepreneur and you’re getting in the car and dropping in on 80 bankers that you don’t know, that would be construed as general advertising.  But if you hire an Ohio company as your general agent and they deal with these banks all the time and they send out a fax to them, then it’s okay.


Is Rule 504 a 4(2) rule?  That is, is it adopted under 4(2)?  No, it’s adopted under § 3(b) of the Securities Act of 1933 which gives the commission power to adopt exemptions for (1) private offerings and (2) limited public offerings below a certain number of dollars (currently $5-$7.5 million).  Rule 504 is broader in the sense that it can cover limited public offerings just as R.C. 1707.03(O) can.


What about 3(a)(11)?  Generally don’t use the 85% rules in Rule 147.  85% of the assets must be in Ohio.  85% of the revenue and profit have to be from Ohio.  Only 1 out of 50 times will you meet that.  If you’re organizing a company in Ohio with its principal place of business in Ohio but half the business will be done in Kentucky.  In that case, don’t use 3(a)(11).  Also, like 4(2), 3(a)(11) counts offerees not purchasers, and if there is a single rotten offeree, either 4(2) or 3(a)(11) is lost forever.  This is Draconian!  It’s a financial trap and snare and sinkhole!  Rules 504 and 506 concentrate, in the main, on purchasers, who you can more easily keep account of.  Under 504, there is no limit on the purchasers because it is a limited public offering rule.  In 506, there is a limit on purchasers, but that limit is pretty liberal.  But under Regulation D, there is no general advertising.  That is true in all of the rules under Regulation D.  That’s a trap!


So Rule 504 is the “mom ‘n’ pop” exception.  In Ohio, you’ll use R.C. 1707.03(O).  Whenever you can use .03(O) instead of .03(Q), do so, because (O) is easier to satisfy.  § 1707.03(O) is limited to equity securities of a corporation or a limited liability company.  What’s an equity security?  It’s a stock, warrant, or debt convertible into stock.  What is the counterpart in Ohio to pure debt?  Look for the .02 regulations in a section dealing with commercial paper.  There are two sets of .02 regulations.  The first one, about 30 years old, says that despite the wording of the section, it is limited to debt sold to insiders/affiliates.  But in the 1990’s, the commissioner expanded .02, saying that if something is a pure debt security and if it would meet .03(O) if it were an equity security then it will meet that particular regulation.  Another set of Ohio regulations that are crucial are the regulations under .03(V).  There are some “nice” exemptions there, including one for certain employee stock purchase plans and employee stock options.


Federally, Rules 701-703T of the Securities Act of 1933 provide a similar exemption for non-public companies up to a certain dollar limit.  The rules under 701-703T say that you need not integrate what you sell under these rules with Regulation D.  Regulation D makes the same statement.  Integration makes your hair go gray in this area!  Why is it restricted to non-public companies?  For non-public companies, the SEC has a short form, the S-8, for employee stock purchase plans and options.  It’s an easy form to use.  Later on we’ll see that employee stock options and purchase plans are a lot more valuable for public companies than for private companies.  Beginning 25 years ago, executives could make tens of millions of dollars through these plans.  In the 1990’s, this expanded to up to $1 billion.  Jack Welch has a net worth of around half a billion dollars.  So corporate executives can pull a lot of money!


Rule 506


This rule was first adopted in the 1970’s and revised several times since then.  It’s kind of at the other end of the scale from Rule 504.


1.           This Rule falls under Securities Act of 1933 § 4(2), which has no dollar limit.  Thus, this Rule has no dollar limit either.  Rule 504 is under § 3(b) which has a dollar limit, and 504 has an even smaller dollar limit imposed upon it.

2.           Rule 506 also applies to all types of issuers, including corporations, partnerships, LLCs, LLPs, not-for-profit organizations, and general partnerships issuing debt: it is broad.

3.           Like Rule 504, Rule 506 also applies to all types of securities.

4.           Like Rule 504, you must always file the proper reports with the commission on time.  The report is the Form D, and you’ll find it set out in the CCH Federal Securities Reporter.  Many, if not most exemptions have a precondition of a proper notice filing either with the SEC or the states or both.

5.           A precondition to Regulation D, Rule 504 and Rule 506 is no general advertising.  That’s also a precondition to § 4(2) and R.C. 1707.03(O).

6.           Like Rule 504, there is an integration test.  As a rule of thumb, lawyers will tend to look one year back and one year forward, though Shipman is not sure that it really goes that far.  If different securities are issued for very different purposes, there will be no integration.

7.           Both as to Rule 504 and Rule 506, the securities must be legended upon delivery.  The sales agreement and private placement memorandum must prominently, in advance warn investors of this.  This deals with the “come to rest” test.

8.           For Rule 504 there is no advance disclosure precondition.  You still have to comply with the civil liability section.  From Rule 504 to 506, there is a drastic change.  Regulation D has an elaborate twist: if every purchaser is an accredited investor as defined in the rule, there is no advance disclosure requirement.  In big offerings, everyone will be accredited investors.  But there are caveats:

a.       One or more of the people are going to request a lot of stuff and the rule itself tells you: what you provide to one, provide to all.

b.      To protect yourself under the civil liability provision, you will always put together a decent private placement memorandum.  Note that a prospectus is only with a registered public offering.  The memorandum will be numbered and you will get receipts from everyone and make them sign a form that they won’t circulate or distribute them to anyone except their own lawyers, investment bankers and accountants for advice.  We do this because of the no general advertising provision.  Careful lawyers also get, in advance, signed and dated investment letters under Rule 504 because someone will try to purchase for 40 friends and they are going to screw up a Rule 506 because they won’t be accredited investors.

9.           Even if all of your investors are accredited and they’re all sharp, there must be a due diligence meeting where the lawyer, management, and CPA make themselves available for questions before people are going to buy.

10.       What part of the “fend for themselves” test goes into Rule 506?  Shipman says this is subtle: if all purchasers are accredited investors, the test does not apply because if you read the rule carefully, there is a built-in, implied statement that accredited investors are conclusively presumed as a matter of law to be able to fend for themselves.  Is it true?  Maybe, maybe not.  If all purchasers are accredited investors, the issuer does not have to appoint a purchaser representative.  But if one or more purchasers is not an accredited investor, then this is the rule: if one of these purchasers is not a financial sophisticate, the issuer must hire, out of its own pocket, an independent investment banker aside from the one it uses to advise as to the suitability of the investment.

11.       Rule 504 has no limit on the number of purchasers because it is a 3(b) rule, that is, it covers limited public offerings as well as private offerings.  But Rule 506 is a 4(2) rule, and the SEC does have a limit on number of purchasers.  This is after integration and “come to rest” are applied.  The number of purchasers in an offering, so defined, may not exceed 35.  If you sell 1,000 shares to Mr. Jones and 1,000 shares to his wife, Ms. Smith, that counts as two purchasers.  It’s not tenancy in common or joint tenancy with right of survivorship.  The rule tells us that we use the old view of marriage!  The two are one even if the stock is separately titled and separately paid for by each spouse!  The counting rule is quite liberal.  But that’s not all!  What else does the commission have to help?  Each accredited investor counts as zero investors!  In other words, you could have 80 accredited investors plus 20 other people.


This counting rule ties in to 3(c)(1) of the Investment Company Act of 1940, which was the fifth federal securities statute passed.  If you’re an investment company, there is an extra strong burdensome level of registration.  The commission was aiming at mutual funds.  However, the definition of investment company is much broader.  Lawyers are concerned about inadvertently becoming an investment company.  But if you’re a bona fide commercial bank, a bona fide insurance company, a pension or profit-sharing trust for employees, or a bona fide charitable trust, then you’re exempt.  There is also an exemption for a company that invests in real estate mortgage notes.  In Ohio, you may have to file as a bond investment company.  The big exemption from this Act is 3(c)(1).  This section says that if a company has fewer than 100 holders and it’s not presently making a public offering, then it’s exempt.  Therefore, if you set up a partnership that has mainly financial instruments in it, and there are only 80 partners then if you’re not presently making a public offering, you’ll be exempt.  This directly ties in with Rule 506 because a 506 offering is not a public offering even if there are 70 accredited investors buying.


If you have purchasers who are not accredited investors, you work through Rules 501-503 and find that, for a big offering, you will have to put together a private placement memorandum that contains just about what a prospectus would contain for a public offering.


What about the Ohio situation?  For an offering exempt either under § 4(2) or under Rule 506, you can get an exemption for the Ohio portion if you make timely filing and a $100 fee.  Each filing is only good for 60 days.  If you go for the whole year, you’ll have to make seven different filings.  In the real world, many exemptions are lost because they’re not careful in getting the filing there on time.  Make sure you have a stamped copy before the final due date that you can put in your file.  In Ohio, R.C. 1707.39 and .391 will allow you, in limited circumstances, to file late.  Texas has an even more advanced scheme.  Federally and generally under state law, if you miss the deadline you’re dead, and you get strict liability and malpractice.


What if the private offering crosses state lines?  You must make the filings in all states on time.  If it’s an ongoing offering, you’ll have to make several different filings during the year.  If it’s really important that a form be filed on time, send someone there in person.


As of 1994 and 1995, the high-tech companies in California, Seattle, Texas and Massachusetts were using Rule 506 heavily.  They were finding that the various states were questioning their disclosure and were trying to impose substantive fairness tests.  The big problem was that the suggestions of the various states were contradictory; you couldn’t please everyone.  So there is a lot of political dispersion.  As a reaction, a part of NSMIA provides as follows: this applies only as to Rule 506 offerings, and not to § 4(2).  Rule 506 is much safer than § 4(2)!  Rule 504 is safer still!  In Ohio, always use .03(O) in preference to .03(Q) because it is a lot simpler.  NSMIA says that states can continue to require (1) notice filing, (2) a filing fee, (3) application of broker-dealer rules, (4) application of fraud law, and (5) application of criminal law.  But the states shall not, as a matter of routine, question the disclosure in a Rule 506 transaction or use their anti-fraud powers to impose substantive fairness tests.  This has worked, and though Shipman is in favor of state regulation, he thought state variation had gotten out of hand.  Another part of NSMIA dealt with broker-dealer rules.  It said that a federally registered broker-dealer can continue to be forced to register under state law.  There can be filing fees.  Criminal, fraud and injunctive provisions can be used.  But in applying selling practice and other rules, such as net capital, the states can only enforce the federal rules.  But can federal courts enforce Ohio broker-dealer rules?  The Ohio Supreme Court has held that federal and state regulation must work together closely in this area.


Guaranty and suretyship


What’s the difference between guaranty and suretyship?  If it’s a guaranty arrangement, the person making the guaranty is secondarily liable.  He is making a guaranty of someone else who is primarily liable.  What are surety bonds?  By statute in Ohio, if you’re doing construction work for a public agency, the contractor has to go to AETNA or some other approved insurance company and get a surety bond written in favor of the state, and this is not cheap!  On surety, the writer of the bond has primary responsibility.


Cockerham v. Cockerham – The husband had a lot of land before he got married.  He married, acquired more land, and under Texas law what he acquired was community property.  The wife went to town and started a dress shop as sole proprietor and also found another love interest.  The dress shop is going to hell financially.  Under Texas law, Mr. Cockerham’s community land would have been liable to Mrs. Cockerham’s dress store debts.  But most of his land was acquired before the wedding and he would be able to keep it.  So the creditors get to Mr. Cockerham.  He should have said: “She’s an independent entity.  She’s not my agent.  She’s not my partner.”  But of course, this macho guy said: “Don’t worry if her debts aren’t paid off by her!  If they aren’t paid off by her, I’ll pay them off!”  Under principles of estoppel, the court held that his separate farms, that is, the land that he owned when he got married, as well as his community property land was available to the wife’s creditors.  Mrs. Cockerham is charged for wasting community property by supporting her lover.  In 1971, the husband got custody of the kids!  His big mistake financially was “popping off”.  He should have given the “NOW” speech: “I’m not half of anything.  She’s not my agent, and she’s not my partner.”  Then he should have turned around and walked off.




Tax consequences of different forms of corporations


From 1913-1960, the almost invariable rule where you had a corporation was double taxation, meaning: (1) the corporation itself is subject to tax, and (2) when the income is paid over (the dividend), they are again subject to tax, and (3) when the corporation dissolves and distributes its assets to shareholders, there is a tax at the corporate level on the difference between the fair market value of assets and what the company paid for them and there is a further tax at the shareholder level on the difference between what the shareholder paid for the stock and the value that he received.


The first exception came in 1942 for mutual funds.  In the late 1950’s and early 1960’s, a similar deal was put in for Real Estate Investment Trusts, or REITs.  It’s an odd statute.  It says that if you’re a trust taxable as a corporation and you make the election, it is similar to mutual funds.  If you pay out a certain percent of your income each year (something like 95%), then as to what is paid out, you aren’t taxed on it; only the recipient shareholders are taxed on it.  REITs haven’t had as great a run as mutual funds.  Shipman speculates that the promoters have benefited themselves more than shareholders.


Subchapters C and S


At the same time, a huge amendment to the Internal Revenue Code, Subchapter C came into being.  This is the general subchapter governing corporations.  All the rules in this section are double and triple taxation!  If you meet the requirements and make the election properly, you are governed mainly by Subchapter S.  But where Subchapter S doesn’t deal with an issue, you go back to Subchapter C.  Sub S is a bit different than the mutual fund situation.  How many companies can elect?  It must be a United States corporation.  It can have no more than a certain number of shareholders (75 as of the last edition of the book).  No shareholder can be a partnership, corporation, or ordinary trust.  There are limits on the extent to which non-resident aliens can own stock in the Sub S company.


Making and keeping this election is complicated!  It requires a lawyer because what you have to have is a shareholders’ agreement under O.R.C. § 1701.591 to restrict the transfers of shares and require election of consent by everybody who gets the shares.  The board of directors files the consent with the Internal Revenue Service, but they have to have consents from all shareholders.  It’s a two-level proposition.  If you’re only dealing with one or two shareholders, it’s pretty simple, but if you’re dealing with 45, it’s going to get complicated.


If the election is made, the situation is about 70% like that of a general partnership.  Tax lawyers describe this as “flow-through taxation”.  That means that the corporation files a return, but it’s an information return as to income taxes.  As to taxes other than income taxes, it’s fully subject, just like GM: excise taxes, sales taxes, real estate taxes, corporate franchise taxes and so on.  But they file a return, and then at the end of the year they inform each shareholder of his or her share of the net income or net loss for the year and the shareholders include it in their income just like in a partnership (in a way).  If the company keeps all the income, it’s still taxable to the shareholders currently.  That’s one of the reasons why you must have a § 1701.591 agreement.  You want to require, say, half of earnings to be paid out because the shareholders have to pay state, city, and federal income taxes.


Suppose the company makes $1 million in year one, has one shareholder, and pays nothing out.  The company pays no tax, but the shareholder is subject to tax on $1 million, absent a R.C. 1701.591 agreement.  If the shareholder is Bill Gates, it’s no biggie since Gates is worth $50 billion.  But for most people, it’s a big deal!  Suppose that in year two, that money is paid out.  That’s called previously taxed income.  If the company broke even in year two but gave a $1 million check to the guy, he wouldn’t pay any tax on that, because it would be previously taxed income.  Most states now allow this, but Ohio did not until about 20 years ago.


LLCs and Subchapter K


Let us compare Sub S to the new kid on the block from Sub K-land: the LLC!  First of all, you can have an LLC if you “check the box”.  You can have an LLC with Sub K treatment even if a corporation, a trust, a partnership or a non-resident alien is a member of the LLC!  Furthermore, the numbers can exceed the 75 specified shareholders in Sub S.  There is an upper limit, and it comes in a “back-handed” way.  Under current tax law, no new Sub K entity can have securities traded on a public market.  We will discover that two sections of the Securities Exchange Act of 1934, §§ 15(d) and 12(g)(1), will cause (1) an entity that makes a registered public offering under the Act of 1933(?) or (2) any entity with 500 or more holders to file public periodic reports with the SEC.  With those reports, under Rule 15c2-11 of the 1934 Act, a public market can be made by any broker-dealer in the country on that stock.  In addition, under §§ 12(a) and (b) of the 1934 Act, if you voluntarily list any security on a national securities exchange there is per se a public market in that security.  Therefore, as a practical matter, you have to work with a securities lawyer and avoid these four sections of the Act.  It’s a back-handed limitation.  Grandfathered in are a few old limited partnerships from the 1980s that are listed on a couple of exchanges: these are master limited partnerships.  They were cut off a few years ago, but there are a few hanging around.


LLCs have another use: they are widely used for mineral interests held by entrepreneurs, for real estate held by a real estate investor, and for intellectual property.  They are widely used for two reasons: (1) Wealthy people will often leave property in trust to a bank to manage for their family.  The big banks and trust companies want investment property given to them to manage in trust to be in corporate form or LLC form in order to minimize their potential liability.  If the LLC goes bankrupt, they’re unlikely to get stuck.  (2) Very often you’ll have two or more entrepreneurs come together, each contributing some assets.  After a few years, each one often wants to pull their own contribution out and go their own way.  If you have a corporation, even a Sub S corporation, there will be a tax on “phantom income” at the corporation level, measured by the difference between the cost of the assets and the current fair market value.  If you’re in a Sub K situation, however, very often the split will be tax free to the LLC and tax free to the member taking back what he contributed.  He’ll simply take over the LLC’s basis and move forward.


But caution: don’t ever put publicly traded securities in a Sub K entity.  There’s a tax trap there!  There are three better ways to do this: (1) With publicly traded securities, put it in a revocable trust.  If you do it right, contributions to the trust and the unraveling of it will be tax free.  (2) Another option is a managing agency account with a big bank.  As the name implies, there’s no trust, there’s no entity, although the stock will be in the name of the bank, it is a simple managing agency account and there is no consequence in setting it up, and you have the right to revoke it at any time and they will register the stock in your name and return it to you.  (3) Finally, the third way to go is a street name account at a big brokerage house.  They call it this because they’ll hold the stock in the name of their own “nominees” (some of their senior executives).  That makes trading a lot easier.  If you need it back at any time, they’ll deliver the securities to you.

Professional corporations


Hishon v. King & Spalding – A single female associate was passed over for partnership, so she sued, alleging that it was because of her gender.  If that proved true, usually that creates a right of action under Title VII.  The argument was made by the defendants 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 ruled that 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 (and other civil rights statutes) provide that if you prevail in your suit, you can get reasonable attorney’s fees.


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 Ohio, it was passed in about 1960 and it is in Title XVII.  It’s an odd statute that you apply in conjunction with § 1701.


In Ohio, many doctors and dentists immediately hopped on the professional corporation bandwagon.  Many are still there today.  CPAs could not because the code of ethics of the AICPA (American Institute of Certified Public Accountants) prohibited incorporation.  This business form was available to lawyers too.  But there was a big “hiccup” along the way!  The Ohio Supreme Court ruled that (1) the legislature could not legislate concerning the governance of lawyers in this way, (2) only a Supreme Court rule could allow it, and (3) they would allow it, but only if there was a charter provision, saying that each shareholder of a professional corporation of a legal nature had the same liability as a general partner of a general partnership.


This statute, even as to doctors, has a clause in it that the shareholders have the same liability as general partners of a general partnership.  So what has happened in Ohio in the interim?  In around 1995, the Ohio Supreme Court issued new rules, saying that lawyers can go into an LLC, a § 1701 corporation, the old professional corporation, and that the old provision about shareholders having the same liability as general partners of a partnership was abolished.  Different states are at different stages on this right now, and it works differently for each profession.  You must look at each profession.  The Ohio legislation makes it clear that the governing boards for each profession still have regulatory oversight, and it works out differently for each profession.


Clackamas v. Wells – This Supreme Court case is from 2003 from Oregon.  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 Ohio: under the Ohio equal employment statute, the number is four, and a part-time employee is explicitly counted as one.  Also, the Ohio Supreme Court has held that in a veterinary firm with only three employees, the alleged mistreated non-shareholder employee, though she couldn’t sue under the federal statute, she would have about the same rights under Ohio common law.  Often people’s rights are greater under state law than federal.  We’re not in the Warren Court anymore!  People’s rights are much more often greater under state law than federal law!  Today, many federal judges are averse to 20th century liberalism ideals, moreso than state court judges.


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 Ohio.  For unemployment compensation purposes, both federal and state, they were treated as common law employees.  If you excluded these four or five people, there weren’t 15 employees, and the company moved at summary judgment for exclusion from the statute.  That issue, in the Second Circuit, had been resolved against the shareholder/employees.  They held that if you choose the corporate form, the fact that you’re a shareholder, and even a majority shareholder and a director doesn’t affect the fact that if you work full-time for the company, then you are an employee.  Out west, one of the courts held just the opposite: it’s a small, intimate, professional corporation.  The shareholders who are also officers and who work full-time for the company are not employees.  In Ohio, this case would go against the doctors.


Stevens, for the majority, says that he will remand the case so that the Court of Appeals can apply his 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 Ohio, in that situation would say that this guy is still an employee.  Now change the facts: three doctors own a third and each one is on the board of directors.  Note: any two of them could fire the third.  So, applying the Stevens test, they can all be fired!


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.  In a recent Ohio Supreme Court case on control (de facto or legal), we had a client power company that wanted a building built.  There was a general contractor and a subcontractor.  Usually, if someone like the electric company hires a general contractor and doesn’t go too far in the general supervision of that contractor, then if there is negligence by the general contractor or by a subcontractor, then the client electric company won’t be liable.  The one exception will be negligence in selecting the contractor: you commit negligent selection when you pick a contractor that’s always getting people killed.  All construction contracts call for progress payments: pay as you go.  At the end, you’ll have about 15% outstanding, which will be paid three or four months later after a very detailed final inspection of the building as competed.


Workers' compensation


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 – This case concerns the statutory employer doctrine for workers' compensation purposes.  It involved a construction contract, which in turn involved a subcontract.  The subcontract did not mention workers' compensation.  The subcontractor had no workers' compensation because they didn’t pay the premium!  A worker was injured on the subcontractor’s job.  The subcontractor has no workers' compensation, which is illegal, but it happens a lot.  The Utah Supreme Court held that the general contractor, at minimum, should have required, in the contract, that the subcontractor to get workers' compensation and pay the premiums.  When the general didn’t do so, the general became the de facto employer of the guy who was injured, and thus the guy would get workers' compensation through the general contractor.  Both workers' compensation and respondeat superior involve scope of employment determinations.  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.


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!


Malpractice insurance


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 Ohio, this is one of three or four states where you get attorney’s fees along with your punitive damages.  When a doctor is sued, if he’s satisfied with the lawyer that the insurance company provides for him, Shipman says he should still hire a good lawyer to look over the shoulder of the insurance company’s lawyer, “just to let them know that they’re not dealing with a rube.”  The Zoppo letter will remind the insurance company of its fiduciary duties.  An insurance contract is one of utmost good faith (uberrima fides).


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 Common Pleas Court.  Why is this done?  In the old days, if the insurance investigator could wriggle out of the insured any admission that led to an exclusion, then it’s tough crap for the insured!  A Texas Supreme Court case from around 1960, and an Arizona case from the 1970’s changed the world.  They said that the lawyer employed by the insurance company to represent the insured owned high fiduciary duties to the insured.  And if it’s through confidential attorney-client conversation that the attorney learns of the exclusion, the attorney must resign, or keep going but not say anything to the insurance company.  In a really testy case, the insurance company will hire two lawyers: one to represent the insured, and one to represent the interests of the insurance company.


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 Ohio, we have a broad declaratory judgment statute.  These actions are broad.  The insured will go to a lawyer, who will handle it.  Under Ohio case law, if the insured wins the declaratory judgment action, the court may (emphasis on may) award reasonable attorney’s fees for the declaratory judgment action.  It’s broader than insurance, but it applies to insurance.


Perl v. St. Paul Fire & Marine – 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.


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 fear into agents so that they’ll do right by their principals.


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 to 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.


Corporate statutes


State corporation statutes are enabling statutes, designed to encourage investment.  The third part of the triangle is entrepreneurs and managers.  Other heavily regulatory state statutes like antitrust, securities, environmental, and equal employment remain applicable.  The state decided early on that corporations should be subject to the heavy regulatory statutes.  But you won’t find those in the state statutes.  Nearly all corporate statutes in the United States are at the state level, with a few exceptions.  Through antitrust, tax statutes, employment statutes, environmental statutes and many others, Congress heavily regulates.


To form a corporation, you must fill out what are called “Articles of Incorporation”, signed by one or more incorporator.  You take that to the Secretary of State’s office, pay a filing fee, and the process is started.  In Delaware, that same document is known as a “Certificate of Incorporation”.  The generic name for both is “charter”.  In about half the states, including some big ones like Illinois and Texas, some version of the Revised Model Business Corporation Act is in effect.  In Ohio or Delaware, the Revised MBCA doesn’t govern.  So we’ll study these three sets of statutes.  The first MBCA was put out in 1946.  The revised version came out in the 1990’s.  The general Shipman rule is that unless there is a very good reason otherwise, incorporate locally.  The corporate charter is a public document.  In Ohio only, the rules of a corporation are called the “regulations”.  Everywhere else, including Delaware, the rules are called the corporate “bylaws”.  These are not a matter of public record, unless you’re a public company, in which case the bylaws will be on file with the SEC in Washington.  Bylaws can be subpoenaed in litigation, though.


The general American rule is that the internal affairs of a corporation are governed by the law of the state of incorporation.  “Internal affairs” denotes the relationship between shareholders, creditors, the corporation itself, the officers, directors, and the promoters.  If you’re incorporated in Ohio but you set up a store in Kentucky and hire workers in Kentucky, the Kentucky workers' compensation statute will apply.  Furthermore, if you make money in Kentucky, Kentucky will tax you on what you make.  If one of your Kentucky drivers “runs over a baby in Lexington”, then Kentucky law will govern too.  But if there’s a dispute between shareholders and the corporation over the election of directors, then Ohio law will nearly always govern.  You can find this in Restatement Second of Conflicts of Laws, which actually indicates that there are a few exceptions to this.  In practice, we can say that the courts are not quite as consistent as the Restatement indicates.


Zahn v. Transamerica – Here are the three big holdings of Transamerica:  (1) Controlling shareholders have very high fiduciary duty to both the corporation and to minority shareholders.  Anybody who litigates knows that if you’re representing a plaintiff and you can prove a high fiduciary duty on the part of the defendants, you’re a long way toward home.  (2) This holding is more by the district court than the Court of Appeals.  The district judge reminded the Court of Appeals (“ever so delicately”) that even if there is a total conflict of interest in the corporate arena, and even if it is severe, if the fiduciary can show overall reasonableness as to disclosure up front and overall reasonableness on the merits, and no harm to creditors, then the transaction will stand.  In this particular case, there was no injury to creditors because all the creditors were paid off.  There was a failure in disclosure here that led to the 1:1 instead of 2:1 splitting of tobacco inventory.  (3) Disclosure was also violated in this case under SEC § 10(b) and rule 10b-5.


The court read the charter: the label preferred stock (Class A) could be called by the corporation at a certain rate.  The Class B shares were a lot more complicated.  Is the declaration and payment of dividends mandatory?  In this case, the answer was no.  How do we know this?  The dividends were “when, as, and if declared”, and this was non-mandatory language.  Can you have mandatory preferred stock as to dividends, though?  Generally, you can’t because the board of the directors and only the board determines whether dividends are paid (with certain exceptions to be developed later).  One exception is that when you have a closely-held corporation where all the shareholders have signed a § 1701.591 agreement and the creditors aren’t hurt by the agreement, then that agreement can provide for mandatory dividends.


Is the dividend cumulative?  That is, if, in a given year, the directors don’t declare dividends on preferred stock, do the directors ultimately have to pay it?  The footnotes of this case say that the drafter made sure it was cumulative by saying: “if they don’t declare in a year, they shall accumulate” and “if any dividends have been passed, the common stockholders can’t get a penny until any accumulated dividends are paid”.  Is a preferred stock participating?  Today, you seldom see participating preferred stock.  But this Class B stock is participating.  Once the board pays the annual dividend on the Class B, the rest of what’s left is split between the Class B and the common stock.  Class B gets two bites at the apple!  How do you make a preferred non-participating?  You use the phrase “and no more” after the words “dividend of $X, when, as, and if declared by the board of directors”.


Is the stock callable?  To make a stock callable, it requires special language.  The language is here: the stock can be called at par plus accrued unpaid dividends.  A call provision is always for the benefit of the most junior security, that is, common stock, because it puts a cap on what the more senior security can take.  Is the stock convertible?  This takes special language too.  Class B in this case could go into the common stock, but only 1:1, and they give up their accrued, undeclared dividends.  Does the preferred stock have a put?  A put is an option whereby the holder of the option can force someone else to buy at a stipulated price or under a stipulated formula (like fair market value, for example).


The Court of Appeals held that because all of the directors of Axton-Fisher were officers or directors of Transamerica, there was an overarching conflict of interest, and the board of Axton-Fisher could not call the preferred stock.  The district judge says to the Court of Appeals that they got it all wrong.  The district judge says that the overriding rule of law is that even if there is a complete conflict of interest, if the fiduciary shows overall fairness as to disclosure up front and on the merits, and creditors are not injured, then there is always a complete defense in the corporate world against conflict of interest transactions (but in the trust world, this isn’t necessarily true).


Then the district judge says that the call provision is for the benefit of the common stock, and the conversion provision is for the benefit of the holders.  Then, this judge looks at Rule 10b-5 and says that to compute damages, let’s assume the board of Axton-Fisher did it right, in which case they would have called the Class B.  However, if under Rule 10b-5 they should have informed the Class B holders of what was going on.  The Class B, having been informed of that, all would have converted.  Therefore, the judge says to the B holders that they should get 1:1, not 2:1.  Shipman says that this is right!  The terms of securities, including debt securities, are everything.


If you have about the same disclosure duty under state law that you would have under 10b-5, and the disclosure duty under state law is on a fiduciary basis, then you plead the matter today under state law rather than under Rule 10b-5.  How come?  (1) 10b-5 always requires scienter.  Under state law, if there is a heavy fiduciary duty, mere negligence, without any scienter at all, may well suffice.  It’s easier to prove negligence than fraud in either federal or state court.  (2) In the 1990’s, there were three federal statutes that cut way back on 10b-5 class actions.  More on these statutes later in the course.  These statutes are “plaintiff killing fields”.  If you can avoid them, do so.  They apply to class actions for fraud.  Therefore, if you go under state law theories that don’t require fraud to be proved, then you avoid them.  (3) In the last 25 years, about half of the federal judges have become more anti-plaintiff in the corporate area to some degree.  At the state level, it’s a more even playing field.  Even with class action suits, often you stick with the simpler state law theories rather than going to Washington or to the federal courthouse.  This is very pragmatic but true.  This case is very important!  Master this case!


Frick v. Howard – This case deals with the fiduciary duty aspect of the promoter’s liability doctrine.  Since the promoter took a non-negotiable note and assigned it to the plaintiff, the plaintiff took over all of the disabilities of the assignor and because he couldn’t meet any one of the three validating tests, he stood in the shoes of the promoter and his claim for secured status was denied.


In this case, the promoter is a lawyer who thinks that the town needs a motel.  He buys land for about $200,000.  He probably disclosed that he would transfer the land to a corporation that would run the hotel.  Today, he would have to negotiate with the S & L because usually it would put a “due upon sale” clause in the first mortgage note, and unless they consent to the transaction, they could accelerate the note and cause it to come due.  This is not a consumer transaction.  There are no federal consumer statutes involved.  Everyone is a business, not a consumer.  The lawyer ups the value, in his own mind, to $310,000.  The lawyer takes back roughly a $110,000 second mortgage note, plus a second mortgage.  In a mortgage, there are always two instruments.  There is a note, which is the in personam promise to pay of the maker, and there is the second mortage, which is a real property interest that you record at the courthouse giving you the right to foreclose if the principal and interest payments aren’t made.  The two instruments are “tied together like Mary and her little lamb”.




A note is a two-party debt instrument.  There is the maker of the note, who signs at the bottom, and the payee.  A note is to be distinguished from a bill of exchange which is a three-party debt instrument.  With that instrument, there is a maker, a drawee, and a payee.  The drawee is the bank, the payee is the person who you write in, and the maker is the signer.  A note is two-party.  There are all kinds of bills of exchange, but we won’t get into them and we’ll stick with notes.


This is a rank real estate promotion, meaning that it is a very heavily leveraged real estate corporation.  This is the opposite end of the world from the highly secure Exxon!  A big danger for highly leveraged companies is that they will go insolvent.  How do the courts deal with insolvent corporations?  They do it in two ways:  (1) The insolvent person can file a voluntary state court receivership or it can be involuntary by creditors forcing the insolvent into the state court receivership.  (2) The insolvent person, at the front end, has the option of going under the Federal Bankruptcy Code of 1978, found at 11 U.S.C., and they can file a voluntary petition of bankruptcy.  Also, initially the creditors could have filed an involuntary petition in bankruptcy, and a third possibility is that once a state court receivership is filed, the creditors can force it to the U.S. Bankruptcy Court, a unit of the U.S. District Court with its own clerk and its own judges.  It is reviewed by the U.S. District Court, and a district court judge can take charge of a proceeding at the beginning if they’d like.


The creditor sign and file, on time, formal claims asking for a “piece of the pie”.  It’s the same way in the U.S. district court.


The $110,000 note, which was originally payable to the promoter (the lawyer), who was the 100% shareholder, had been assigned by him to the plaintiff.  The plaintiff had filed a secured claim in the state court receivership.  He says: “I have a good $110,000 face amount claim, plus interest, as a secured creditor in this proceeding!”  The court, acting sua sponte, started this proceeding to determine whether this guy had a valid claim.


So what does the court hold?  First, a note, if it is worded as “pay to X or pay to the order of X” will usually be a negotiable instrument under Uniform Commercial Code Article III.  But this note lacked this language.  It simply said: “pay to X”.  The lawyer assigned it to his buddy for lots of cash.  The court holds that:  (1) The note is not a negotiable instrument under Article III of the Uniform Commercial Code.  If it were, the holder of that note could be a holder in due course and have greater rights than his transferor had.  It’s kind of like the Recording Acts in Property.  But since the words of negotiability were missing, it was a simple, straightforward assignment and the lawyer’s buddy stepped into the shoes of the lawyer.  That is, every infirmity that the lawyer suffered under, the buddy will also suffer under.  (2) Just what kind of infirmities was the lawyer under?  The lawyer was a promoter, and he owed very high fiduciary duties to the corporation and to the other shareholder.


When he sells property to the corporation, in order for that to stand up, he must do one of two things: (1) he must prove overall fairness of disclosure and the substantive price and that creditors aren’t injured.  Did the assignee of the promoter prove that as to the promoter?  No.  (2) The promoter can only put people on the board of directors who are independent, outside directors who are not beholden to him.  If they approve, it will be tested under the Business Judgment Rule, a rule of deference.  That is, if they approve it, it will stand unless the other party shows fraud, arbitrary action, ultra vires (beyond the powers), illegality, waste (meaning recklessness) and then the biggies: gross negligence in procedure, or gross negligence on the merits.  The last two are usually the easiest to prove.  Did the lawyer’s assignee meet the Business Judgment Rule?  No, because there wasn’t an independent Board of Directors.  (3) If all shareholders and all present and future creditors consent after full and fair disclosure up front, that would be another “out”.  Did the buddy qualify for any of these three “outs”?  No!  So the infirmities of the lawyer carry over to him!


When you endorse an instrument to transfer, you have secondary liability unless you write after that endorsement “without recourse”.  The lawyer didn’t want that secondary liability!  There are also certain warranties under Article III whether it would be applicable or not.  The lawyer probably wrote “W/R and without warranties”.  What the lawyer did here was very dangerous.  The lawyer probably had a duty to tell the purchaser that this was a non-negotiable note, subject to all the promoter’s claims.  Careful lawyers, when drafting a non-negotiable note, will include the caption: “Non-negotiable note”.  Why?  There’s a case in the last thirty years that says that a lawyer who wasn’t thinking about it but created a non-negotiable note was liable to a remote purchaser who didn’t know it was a non-negotiable note.  Are non-negotiable notes something you should use at times?  Sure they are!  If you’re a manufacturer buying 300,000 parts from someone, then if you give your non-negotiable note and the parts are defective, then if they guy sues you on the note, you can set-off.  It would be the same as if the guy sold the note to a bank.  But if you make the note negotiable, then the note can be sold to a third party, like a bank.  When the bank sues you on the note, you can’t set-off the defective parts.  Shipman says that this is all a matter of bargaining power.


There are also tax aspects to the formation of a corporation or the issuance of new securities.  Though this is not primarily a tax course, you must know how to spot tax issues.


The Old Dominion cases – What’s the situation?  The promoters formed the corporation and each of the promoters got stock in the corporation for $5.  Soon after that, the corporation issues stock to the public and charges the public $15 per share.  It was not alleged that there was any fraud in either sale of stock.  Furthermore, there is no injury to creditors alleged.  Why?  It’s because the company is receiving money for stock and upon liquidation, stockholders take last after creditors and no fraud is alleged.


Four flavors of action


Here are four flavors of action.  They’re related, but different.  First, consider legal actions on behalf of the corporation.  The easiest one is the case of Frick v. Howard, where a company goes insolvent and there is either a voluntary or involuntary state court receivership or a trustee in bankruptcy (“T/B”) who is appointed in a bankruptcy action in the United States Bankruptcy Court under 11 U.S.C.  State court receiverships are quite complicated, and federal actions are even more so!  These are called universal successors to all of the assets and causes of action of the corporation.  The state court receiver or trustee in bankruptcy can do two things: (1) they can assert any causes of action on behalf of the corporation that the corporation has.  The benefit of these causes of action ultimately goes to the creditors.  (2) The United States bankruptcy judge or state court receiver has jurisdiction to pass on claims.  They must be filed correctly and in a timely manner.  And the court for any good equitable or legal reason can disallow claims or “push them down in the pecking order”.  In Frick, the court says that if the claim was refilled as an unsecured creditor’s claim, there might be a chance.  But the unsecured creditors sit at the bottom of the pecking order.


Next up, we have shareholder derivative actions, governed by Rule 23.1 of the Federal Rules of Civil Procedure.  A shareholder files a complaint, served it on the corporation and the actual defendants, alleging that the defendants have overreached the corporation in some way.  The shareholder goes on to allege that the corporation should sue, but it hasn’t because the defendants dominate the corporation and they won’t sue themselves.  Therefore, the shareholder wants to sue on behalf of the corporation.  If the court approves this (after a whole bunch of motions before the answer), then the suit is tried.  If the plaintiff gets a judgment, the attorney for the plaintiff moves for attorney’s fees and there is notice and opportunity for hearing on the attorney’s fees.  Then the attorney for the plaintiff takes off the top.  These actions are driven by plaintiffs’ lawyers!  What’s left after that goes to the corporation and the judgment is res judicata as to all shareholders (not just the suing plaintiffs), the corporation, and all defendants.  It’s a “true true class action” because no plaintiff can opt out.  What the judge says is res judicata as to everybody.  This is powerful stuff!!!  If the defendants win, it’s also res judicata as to everybody (they walk away scot-free).  There are two other possibilities: (1) settlement, or (2) dismissal.  Under Rule 23.1, these are possible only after the court orders a hearing and determines that it’s to everyone’s benefit to approve the settlement or dismissal.  Any settlement will contain extensive provisions for the attorneys.


In Matsushita, you had a friendly tender offer for a movie studio by a Japanese company.  It was a good cash tender offer at a good price.  The family that owned the controlling stake in the company didn’t like the fact that it was in cash because they would have to pay taxes on it.  They went to the offeror and asked to have them pay with stock instead of cash.  They agreed.  But the problem was that two SEC rules were violated (14d-10 and 10b-13)!  After the deal closed, a class action in the federal district court in Los Angeles started up under federal law.  But then there was also a parallel action out of Delaware state court under Delaware law!  The Delaware courts couldn’t hear the SEC issues!  The parties settled in Delaware.  The defendants took the settlement from Delaware to Los Angeles and claimed res judicata.  “Let my defendants go!”  It went to the U.S. Supreme Court, which held that as long as the hearing on settlement meets the Fourteenth and Fifth Amendments, then a settlement in a state court can cover both the state action and related federal action.  But it wasn’t all over yet.  The case went back to Los Angeles and a panel of the Ninth Circuit found that Justice Thomas, writing for a 9-0 Court, “didn’t really mean what he said”.  There was a rehearing en banc before all the Circuit judges and the full court overturned the panel!  The upshot of the case is that some defendants love class actions because they love early settlements.  Note, however, that those people who opted out of the federal and state actions could proceed on their own.


There can be direct action by shareholders against the corporation or its fiduciaries.  If there is an ultra vires action, the action can be asserted derivatively or directly.  The lawyer will always choose direct because Rule 23.1 is a “plaintiff’s killing field”.  Similarly, like an action to force declaration of a dividend, can be asserted by either a class action of shareholders against a corporation or a single shareholder.  The plaintiff’s lawyer will make his decision based on what’s likely to get better attorney’s fees.  That’s just how it is!


In the Massachusetts Old Dominion case, which dealt with a few of the promoters, it was said that the public selling price determined the value of the shares, and the promoters must pay the company the difference between $5 and $15 times the number of shares purchased.  In the federal Old Dominion case, written by Holmes, it was said that one of the exceptions to conflict of interest regulations applied here because (1) there was no injury to creditors, (2) no fraud or information deficiency was alleged, and (3) there was consent of all shareholders.  That creates a defense to conflict of interest?  How did the Massachusetts Old Dominion case distinguish Holmes’s opinion?  They said that at the time of the promotion a public offering was contemplated and that the low price of the promoters was not put in the perspective, and so there was no unanimous consent of all shareholders.


Rule 10b-5 says that when a promoter buys stock, for the next five years, whenever the corporation issues stock to other people, publicly or privately, you must disclose that (this is the “five year” rule).  Thus, today, the promoters in Old Dominion would have put a paragraph in the offering circular that disclosed the stock holdings of the promoters.  They would have disclosed that the promoters paid $5 per share even though they were asking $15 per share from the public.  You must do this or risk violating federal and state securities laws!  If the promoters had followed the SEC disclosure laws, then there will be unanimous shareholder approval, no harm to creditors (because it’s beneath the creditors), no informational deficiency, and no fraud.  Put it all together, and you get one of the exceptions to liability under conflict of interest regulation.


Well, if people are aware of SEC disclosure rules, and other those rules these cases are irrelevant, why are these cases important?  It’s all about compensating the promoter and compensating sweat equity.  Today, the offering circular to the public would fully disclose the $5 price.  Generally, for tax purposes, if the promoters organize for $5 and then you go to the public at $15, within two years of when you do it, the IRS will say to the promoters: “You have $10 per share of ordinary income!  Pay up!”  If it’s over two years, the tax cases say that it is clear that the promotion was “old and cold”.


Sweat equity and capital


So what is the lesson of Old Dominion?  We want to find the true value of stock as applicable to the marriage, business-wise, of sweat-equity and capitalists.  Let’s start a new business!  We need $1 million.  There’s a capitalist who has that much cash, but he needs someone to run the company on a day-to-day business.  Let’s say the capitalist will work 40 hours per week.  He’s a retired doctor who is no longer practicing medicine.  He needs someone to put in the 80-hour weeks who has detailed operating knowledge of the business (which the capitalist doesn’t have).  Let’s use Subchapter S because the projections show that there are going to be big losses for three years, and then there will hopefully be a turnaround!  The capitalist finds sweat equity and makes a handshake agreement that the corporation’s two directors will enter into a three-year signed, written contract for sweat equity with enough money for him to live on.  There will be a similar contract for the capitalist for less money (because he’ll be working less).  Part of the sweat equity deal is that the guy gets half the upside, that is, half the common stock.


Here’s how not to do the deal right.  The Internal Revenue Code sections needed here are §§ 1032, 351, 61 (gross income includes income from all sources and including non-cash assets as well as cash; shares of stock of a corporation are clearly qualifying non-cash property), and 83 (if you receive non-cash property and its transferability is restricted, you value it at its value if it had no restriction on it).  In this transaction, the transfer of shares must be restricted for two years under federal and state securities laws.  The restrictions will be on the face of the certificates.  It will be fully valid if the restrictions are on the face in full caps: that’s considered a reasonable restraint on alienation.  Complying with the securities laws is reasonable.


What happens if a lawyer has sweat equity?  There’s a $1 par stock.  He buys 1000 shares at $1 each.  There is a restriction on the face of the certificate.  The sweat equity dude buys 1000 shares at $1000 per share.  The Old Dominion rule says that you take the highest price paid and project that value backwards to everyone.  So our sweat equity has $999,000 income.  Each share is worth $1000.  He paid $1 for it.  So we multiply $999 times the number of shares, 1000.  If the sweat equity person is rich, then it’s no problem.  They can cut a check.  But, for the average person this is a total disaster.  Even for Bill Gates, we wouldn’t be thrilled.  It will be service income to sweat equity.  Then you look at another Internal Revenue Code section: § 162.  It’s not quite as bad for sweat equity as it looks.  He gets a deduction!  Bill Gates can use a big deduction!  Since he’s working for the company full-time, he has this great deduction.  But the Internal Revenue Service will contend that the sweat equity is promotional services for organizing the company, and thus is non-deductible under §§ 263-66.


Sub S rules out any different classes of stock except one category of common stock.  But it has some good rules!  The debt/equity distinction will give us headaches.  But what’s the beauty of Sub S?  The regulations have a straight debt exception.  To be straight debt, it must call for definite payment of principal and interest at definite times.  In that case, regardless of the debt/equity ratio, for Sub S purposes, they will leave you alone.  The regulations even say that you can use, in certain cases, contractually subordinated debt.  But you can’t use an income bond.  What’s that?  It’s interest payable only if earned.  That’s not allowed!


Let’s say the capitalist buys 1000 shares of common stock at $1 per share in cash.  Then the capitalist has half the upside.  The business requires $1 million to get off the ground.  There’s a $999,000 straight debt note.  But what’s wrong?  The straight debt note will have to carry an interest rate of 10-16% per year to be believable because it’s such a risky note!  However, that does not violate the usury laws of any state, though there are some statutory limits in Florida and New York.  There is also a Federal Act that bans “extortionary” interest rates.  Plus, this isn’t a consumer transaction.


The Dunn & Bradstreet reporting service is the service for small business.  To get listed there, you must submit accounting statements, including a balance sheet which will reveal just what is going on.  The note to an affiliate (that is, someone who is controlling the company or under common control of some other company) will be listed.  You want suppliers to sell to you on credit.  You want 30, 60 or 90 day credit!  It’s the same way with a lessor.  But will this fly?  At that extreme a level, it will not.  You’ll have big problems.  So how do you deal with it?  When you go to get a bank loan, they will require contractual subordination of the capitalist’s $999,000 to the bank.  This will be explained more later.  It really means assignment.  Will that kill you under straight debt?  Probably not, but the lessor will be hesitant.  Suppose the lessor says: “subordinate that baby to all creditors!”  The tax lawyer would say that at that point, you’ve violated straight debt.  If the company gets sued by creditors, they’ll go after the capitalist!  So they want everything to be joint and several.  What about big suppliers?  They’ll do the same thing.  They’ll say that you must have a signed, written joint and several guarantee individually from both the sweat equity guy and the capitalist guy.


What about cash flow problems?  If the capitalist wants to avoid an individual guarantee, he’ll have to switch his note to $990,000 of preferred stock and give up the Sub S election.  There are “inbetween” ways to do this too.  You could split between the note and the stock.  The sweat equity-capitalist problem is easier solved in an LLC than in the corporate form.


What about Internal Revenue Code § 1244?  Shipman mentioned §§ 461-466, which were added by Reagan in the 1980’s to discourage tax shelters.  They say: “Even if you’re Sub S, which has a flow-through, if you don’t work full-time for the company, you can’t use flow-through losses as they arrive.  You can stack them up and use them when you sell the stock.”  Full-time is 40 hours per week.  If you’re a full-time lawyer or banker and only work on your Sub S a few hours a week, you won’t get your flow-through like in the old days.


Here is an anomaly: what’s the tax effect of debt when it goes bad?  There is an odd set of rules that we’ll look at tomorrow.  One of the ironies is that often, for a closely-held company, investing in common or preferred stock is better than taking a note.  Here’s a hypo: Daughter runs a non-Sub S company.  It’s breaking even and it’s been around for 7-8 years.  She needs to expand now.  She turns to Father and wants him to buy 100,000 shares of stock.  What considerations go into it?  First off, look at it from a practical standpoint.  Father is a retired physics professor with a good pension.  He’s well-to-do but not wealthy.  Suppose that Daughter is his only child and he’s not married now.  Say he can rake up over $100,000.  One of the problems will be that Daughter and her co-investors will be more interested in their salaries than dividends.  That’s understandable!  Could Father make out well?  Sure!  The company could do well.  It could get bought out by a big public company.  Does Father want to be a director or an officer?  No way!  He doesn’t want to be liable!  What about the downside?  On this hypo, if he invests and the company goes under, he’ll get an ordinary business loss under § 1244, whereas if he lent the money to the company and they went under, then § 463-66 would only give him a capital loss.  § 1244 is a sometimes useful oddity.  It gives a limit for a single person.  Lastly, you would tell him that his potential for liability is quite low if he doesn’t try to run things, and isn’t an employee, officer, or director.  This is called “disregard of the corporate fiction”.  As long as he’s not active, he’s probably safe.  But should he do it?  He should consider his health.  If he might get sick, he better hold onto his money.


Executive stock options


In the 1970’s, executive stock option plans became very popular.  They are governed by §§ 83, 61, and 162 of the Internal Revenue Code.  § 83 tells you the results of a non-transferable stock option plan.  When you advise a client about options, ask for a plan!  The plan can only be adopted by the board of directors.  No one else is allowed to do it!  And if you’re a public company, you must follow SEC rules, including the proxy rules at § 14 and under § 16 (about which more later).  § 162 of the Internal Revenue Code contains a major subsection on executive stock options for public companies.  The first thing to look for under the plan is the vesting period: the “use them or lose them” provision.  The point of options is to tie employees to the company in some sense: a kind of consideration.  There are exceptions, though: options can vest even if someone is no longer an employee if the person dies or is seriously injured and can no longer work.


The Sarbanes-Oxley Act, a federal statute from three years ago, says that public companies can’t lend money to insiders.  If the employee is independently wealthy, he can exercise his $1 million option.  But for the average person, this will be a problem.  But the bigger problem comes from the tax standpoint.  Other than § 83, the grant of a non-transferable stock option to an executive usually creates no income at that time.  But if the employee wants to exercise the option, he’s going to get taxable income, in this case to the tune of $6,000,000!  That is, 100,000 times $70 minus $10.  But the good news is that subject to certain limits in § 162 (which gives a deduction for only reasonable salaries), the company gets a deduction in the same amount and in the same time that the individual realizes that income!  This can make it so that a company doesn’t have to pay any income taxes!


Since it’s a public company, the employee can use Rule 144 under the Securities Act to sell within the volume limits of that Rule.  If it’s a big company, this Rule will pose pretty much no problem.  But if it’s a small company with just a few hundred shareholders, it will be a big issue!  The way out is to go to a big securities firm and coordinate with the inside and outside legal counsel of the company and with the CEO.  Remember the Bernie Ebbers story!  He fired one of his top executives for not telling him when he was going to exercise his options!


The brokerage house will lend the employee some money to exercise the option, sell enough of the stock to pay back the loan plus taxes (state, city, federal, Medicare, Medicaid and all that), and give him the rest.  He will have to get the company to sign off on this because the option plan will have a provision about tax withholding.  The company must withhold taxes on the gross income (federal, state, city, and the employee’s Medicare tax).  The company, the brokerage house, and the employee will enter into a contract.  The brokerage house will get its fee, then remit the withholding that the company must then send to the tax authorities.  The fee will be very high!


What if this is a private company and there’s no public market for the stock?  Once in a while, the company will have enough money to buy the employee’s option out for what it’s worth, after withholding taxes.  The employee pays taxes and the company gets the deductions.  So options work well for public companies, but for private companies that will stay private they are a bad idea.  If the employee is rich enough to exercise the option, they will, but that’s rare.  But there’s yet another case!  Private companies often want to go public.  Say a private company goes public after six years and they sell several billion dollars’ worth of stock in an IPO.  After the IPO, the underwriter will restrict the sale of the stock for nine months.  The employee will have to clear the sale with the boss, too.


With options and convertibles, you need to be concerned about dilution of the common stock.  If there are $5 billion in outstanding convertible debentures and you can convert 10 shares for each 100 debentures, and your stock is selling for $60, the stock will get really diluted when the debenture holders convert!


Lastly, in terms of accounting, companies may, if they wish, may value the option upon its issue and treat it as an expense when issued for accounting purposes.  This is done by lots of the country’s big companies!  In the future, all companies may be required to value their options when they are granted and take an expense deduction on their income statement.  The FASB (faz-bee, or the Financial Accounting Standards Board) is a not-for-profit organization that sets GAAPs (generally accepted accounting principles).  FASB must be consistent with what the SEC says.  But the SEC generally defers to the FASB when setting GAAPs.  Occasionally, the SEC will step in, and “once in a blue moon” Congress will step in and alter the rules.


Herbert G. Hatt – A woman who owned a company married a younger man and let him buy planes and stuff.  Then their marriage went downhill.  What starts off fairly harmonious, given a death or resignation or two, becomes awful.  This is a frequent exam question.  In this case, the parties signed a prenuptial agreement.  Let’s cover the law of prenuptial agreements and in particular the law in Ohio after 1980.  All states require a writing.  Ohio and many other states require that the parties have separate and independent lawyers.  There must be mutual full disclosure.  The contract must be fair when made.  This was added by the Gross v. Gross decision in the Ohio Supreme Court.  For subsistence alimony (which is only awarded when a marriage goes on a long time), it must be fair when performed.


In this case and Wilderman, we see that if you’re a Sub C corporation, the Internal Revenue Service is always bugging you on the issue of reasonableness of salaries.  In Wilderman, the Internal Revenue Service found that what the husband was getting was unreasonable.  Thus, they disallowed many of the deductions.  For a public company, the same rule applies in theory.  In practice, however, it doesn’t so apply because public companies hire compensation consultants who have access to the earnings of corporate executives.  Also, the federal income tax statutes regulate, and if you meet those technical requirements, you’re capitalized.  Most public companies have a majority of their directors as outside, independent directors.  The Internal Revenue Service, as a practical matter, usually doesn’t challenge the independence of directors of public companies.  For private companies, there is constant friction of § 162(a), and that’s a big reason they go with Sub S or a limited liability company.  If you’re an LLC or Sub S, the issue of excessive compensation doesn’t arise because there is a flow-through.


Wilderman v. Wilderman – This is a two shareholder corporation.  The husband worked for the father when the father ran the company.  When the husband married the wife, the father turned in his stock certificate and two stock certificates were issued to the husband and wife.  There were two directors: he and she.  The marriage and business went well for some time.  The husband was a good worker and a fine businessman.  The salary scale was set at the company by the fact that the husband was doing most of the work.  He made himself the President and CEO, and made his wife the “inside person”, doing the books and records.  As long as the marriage goes well, it’s not a big deal, but the marriage goes sour.  It’s a deadlock!  The board of directors had two members, and they disagreed!  Could there be an election of a new board of directors by the shareholders?  No, because the stock was split 50-50!  It’s a classic deadlock situation!


What facts were on the husband’s side?  There’s a corporate rule that officers are elected for a term: one year and “for so much longer as is needed until a replacement or successor is elected”.  Therefore, they both remained directors and he remained the CEO.  What’s the other big piece of paper in any business transaction?  It’s the bank signature card!  Shipman thinks that the bank signature cards said that either person could write checks on behalf of the corporation.  Shipman thinks that the wife wrote her own check to herself at the old, low scale, and then the husband declared as CEO that he was worth a lot more than when the board of directors had last passed on it!   He started paying himself a lot more!  Under Delaware law, the wife could go and get a custodian appointed and she could also bring a shareholder derivative action.


In Ohio, there is no statutory provision for a custodian.  We do have, however, case law that is favorable to the wife if this were an Ohio corporation: Crosby v. Beam, which is “a case of almost constitutional dimensions”.  It holds that if there is a true close corporation then (1) the fiduciary duties between the parties are intense, (2) the courts will give relief promptly and (3) the suit can be brought either as a derivative action, or bypassing Rule 23.1, which is good for plaintiffs.


So here are the holdings of the present case: (1) Only the board of directors can set the salary for officers and top executive employees.  (2) If there is a deadlock, the president (with check signing authority) can continue to pay himself under the last pay scale approved by the board, including any bonuses.


Dodge v. Ford Motor Co. – This case holds that (1) with regard to a close corporation, any shareholder can sue the corporation and the directors directly to force a declaration of dividends.  This doesn’t have to be a derivative action.  The court ruled that there existed a cause of action and if you can show gross negligence then you can get the court to force the company to grant dividends.  But the court is reluctant to draft these sorts of orders.  (2) The action of the directors in not declaring dividends is under the deference rule of business judgment.  If the defendants can show business judgment, the plaintiff must show one of these things: (1) arbitrariness, (2) ultra vires, (3) illegality, (4) waste, (5) bad faith, (6) gross negligence in procedure or (7) gross negligence on the merits.  The last two are the biggies!


In Ohio, there is also In re Estate of Byrum, an estate tax case.  It came after 1970.  It was written by Justice Powell.  This case involved both the federal estate tax and Ohio law in regard to dividends.  What’s the federal estate tax?  There are two important federal taxes: the federal tax on gifts, tied to a related tax on estates.  The estate tax can run up to 55%, and the gift tax can run high too.  There are exceptions, though: transfers between spouses are exempted from both taxes.  (About nine states have these taxes, too, and many states have inheritance taxes, which are similar to estate taxes.  Florida, on the other hand, has neither.  They want to encourage old, wealthy people to move there!  But they tax all kinds of weird stuff other than income and wealth!)  This is a big deal for tax planning for the wealthy.  Note that the exemptions are up to about $1.3 million.  Most people don’t have to worry.  Recently, the exemption was only $600,000.  Technically, the estate tax is begin phased out.  The gift tax will stay, “or else the income tax will be gutted”.


So what’s the situation in Byrum?  This guy owned a lot of the stock of a close corporation.  He gave away some to children, but kept 60% for himself so he could run the company.  According to the Internal Revenue Code, if you transfer property with retained major powers over that property, then at your death, the property is in your estate even though you transferred it to your kids.  The government argued that since the old man was going to set the dividend policy on the companies he maintained a major power over the transferred minority shares.  Justice Powell went through Ohio law and found statements that there was a heavy fiduciary duty of majority shareholders in all matters, including dividends.  Thus, because the fiduciary duty was so strong, the old man had not retained a major power over the stock that was transferred to the kids.  Crosby v. Beam would agree with Justice Powell.  This is very relevant stuff!


What about a public company?  Can you get a court order for a dividend there?  In theory yes, but in practice, “forget it, baby!  But the situation with a public company isn’t as bad if there are no dividends.  For example, Microsoft pays no dividends, but their shares are highly liquid.  But with a close corporation, your shares are not very alienable and not very liquid!


Slappey Drive Indus. Park v. United States – This deals with the deductibility of interest.  It’s governed by §§ 162 and 163 of the Internal Revenue Code.  § 163 sets forth this test: (1) There are a lot of technical rules in § 163 that must be mastered.  First: you can’t make a public issue of debt securities payable to the bearer.  There must be a name on it!  Outside the English-speaking world, that’s done to screw the tax authorities!  But here, you can’t screw around with the tax authorities.  If you issue debt to the public, you can’t make it payable to the bearer.  There must be a name on there so the Internal Revenue Service can trace just who got the interest.  But this doesn’t apply to private issuances of debt.  (2) Most public issuances of debt have to be registered.  It’s sort of like the previous rule: there must be a bond registry maintained by the company.  (3) The debt must be classic debt in form.  There must be definitely amounts of principal and interest required to be paid at specified times, even if there is no income!  The debt must not be de facto equity.  With closely held, Sub C corporations, as in Slappey Drive, the shareholders who were also creditors did not force the company to pay interest and principal on time.  The court held that this is sloppy, and the company shouldn’t be allowed the interest deduction.


In practice, if a public company meets the first two qualifications, the court won’t go to the de facto equity test.  How else can you deal with this?  You can avoid it completely by electing Sub S.  A Sub S corporation is a flow-through.  As long as the debt is straight debt in form, no sweat.  The other way to avoid the problem is with an LLC, governed by Sub K, and thus it’s flow-through and you don’t get into the de facto equity or unreasonable salary problems (with an exception to be mentioned tomorrow).  But one of the big selling points of a Sub S or LLC is that you avoid the unreasonable salaries and de facto equity tests.  If you’re Sub C these days, you can still have problems with those areas!  Watch out for the Internal Revenue Service agents!


Equitable subordination


Pepper v. Litton – Here we have a closely held corporation.  The owner had not taken his salary out.  A creditor sues.  Then all of the sudden, the owner puts a lien on the assets of his company.  The outside creditors went into state court and challenged this on the ground of common law fraud with scienter.  The Virginia courts said that these were valid claims that he should have paid off as he earned them, but they were valid nonetheless.  The creditor filed an involuntary petition in bankruptcy.  The major shareholder timely filed a secured claim and showed the Virginia court action to back it up.


Justice Douglas holds that bankruptcy courts are always courts of equity.  Furthermore, a claim can be equitably subordinated if there are strong equitable grounds for doing so.  The outside creditor in this case did show such strong equitable grounds.  Even though there was purportedly a preclusion issue from the Virginia court decision, Douglas held that the bankruptcy courts recognize claim and issue preclusion, but because bankruptcy proceedings are unique and policy-oriented, then the bankruptcy courts can deviate from normal preclusion jurisprudence if there’s a really good reason.  This was a case where it was okay to deviate!  Therefore, they pushed the secured claim of the insider below all creditors, including unsecured creditors who were outsiders.  This is equitable subordination: you push a claim down one or more levels on the pecking order.  Any court of equity has the power to do this!  A state court receiver has the same power.


Contractual subordination


The result is a bit different than the result in Pepper.  Say you have a mid-sized public company that needs to raise more money.  They have already borrowed a lot of money from a big insurance company and the loan agreement requires the insurance company’s consent to any new debt.  The public company goes to the insurance company, and the insurance company says that they may issue new debts to outsiders, but only if it is contractually subordinated to the insurance company.


The mid-sized public company will issue debentures (unsecured debt) to the public, with the following clause: “This debt is contractually subordinated to the debt of Insurance Company. In any insolvency or bankruptcy proceeding, we authorize Insurance Company to file a claim on their own behalf for their own debt and to file, as our agent, a claim for this subordinated debt.  If the total of those claims yields Insurance Company less than the face amount of the debt to Insurance Company plus interest, then Insurance Company keeps everything.  If the total of the two claims filed by Insurance Company yields more than the principal and interest of Insurance Company’s debt, then the excess will be returned to us.  These paragraphs create an agency and we hereby declare that the agency is irrevocable as an agency coupled with an interest.”


Contractual subordination is, in effect, an assignment coupled with an agency coupled with an interest declared to be irrevocable.  Why that wording?  The typical agency power is revocable even if the revocation would cause the party revoking to be liable in damages (which is counter-intuitive but correct).  The big exception is an agency coupled with an interest.  You can’t make an agency coupled with an interest merely by stating that it’s coupled with an interest.  The Restatement Second of Agency says that the agent’s interest in performing services for a principal doesn’t make it an agency coupled with an interest.  But, if the agent advances substantial money or property, and the parties state that, then the agency is irrevocable.  In our example above, the drafter “gilds the lily” to show intent.


Subordinated debt is widespread.  If the subordination goes only to payment of principal, it won’t screw up the tax deduction of a corporate payor.  But if interest payments are also subordinated, you’re dead.  If the subordination goes to all creditors and not just institutional lenders, then I think you’re dead too.


If you’re advising a controlling shareholder or a relative of a controlling shareholder, you must tell them that in an insolvency proceeding you’ll probably get equitably subordinated.  In Ohio, O.R.C. §§ 1336.56-59 constitute the fraudulent preference statute.  We also have a form of the UFTA (Uniform Fraudulent Transfer Act).  Insiders and relatives and affiliates of insiders will usually get pushed down.  Sarbanes-Oxley says that as to a public company, if there is “misconduct” by an officer or director of a public company concerning the company, bonus and incentive plan payments during the period of the misconduct can be recaptured by the company.  The law also says that if you get a judgment against you for securities fraud, state homestead statutes will not exempt your homestead.  They’re aiming at Florida and Texas, where you may have a lot of acres plus a home of any value.  In Texas, you have an urban homestead that no one can touch.  Sarbanes-Oxley says that if you have securities fraud with a public company, the Florida, Texas, and other homestead statutes go away and you lose your homestead.


Insiders have other problems.  The first two cases talk about the corporate veil.  The corporate veil can be disregarded for fraud and some other reasons.  In DeWitt, Flemming made the Cockerham mistake!  He did the “macho” thing and promised to stand by his corporation.  He said, “If the corporation doesn’t pay you, I will.”


In Debaun, it is held that majority shareholders owe duties to the corporation.  The bank sold their majority stake to a madman!  The judge allows the derivative action because he wanted the money to be put into the company so that the creditor would get paid.  The attorney for the minority shareholders could get a reasonable attorney’s fee.  The controlling shareholders owe heavy duties.  For starters, remember Pepper.  Even if they lend money to the company, if it goes bankrupt, they’re probably going to get pushed down the pile.


Bearer instruments


In English speaking countries, there is no such thing as bearer stock certificates.  Such certificates can be used by the bearer for all debts, public and private, and there is no record of who has them at any one time.  You can find these instruments in civil law countries.  Both stock certificates and bonds are typically issued in bearer form.  If you have a bearer bond from a big company in Germany, for example, that pays interest twice a year, how do you get the interest?  Shipman has been told that you make sure you don’t lose the bearer bond!  You take it to a designated bank twice a year, and they’ll stamp the back of your bond and give you cash.  Voting with bearer stock is a similar process.  You take the certificate to a certain bank before the shareholder meeting, you get a ballot, and you cast a vote.  They make a checkmark on the back of the certificate saying that the vote for the current meeting has already been cast.


The state statutes all require that stock certificates be in registered form, in other words, the exact opposite of bearer form.  The company maintains books known as stock transfer books.  Sometimes this is delegated to an independent bank known as the transfer agent.  The board of directors will set a record date for all shareholders’ meetings.  The holders of record as of the record date vote.


What about dividend payments on stock?  There are three big dates.  There’s a declaration date when the board declares them.  Under U.S. law, if it’s a cash dividend, the declaration creates a debt and the company can’t back out unless the resolution itself states otherwise (and that’s very rare).  The date that the board meets to declare a dividend is the declaration date.  The second date is the actual payment date.  They will also select a date between the declaration and payment date when the dividend will be payable to holders of record.  The choice of the dates and the spacing is governed by NASD, NYSE, AMEX, and SEC rules.  Under Rule 10b, it’s a fraud not to comply with the rules of the NASD and the exchanges if you are a public company.  Once you notify the NASD and exchanges of the dividend, they will set a date by which the stock will become ex dividend, that is, a date by which a person purchasing it doesn’t get a dividend.  How are dividends paid in the United States?  They will be mailed out on the record date.


The governing law concerning the transfer of stock certificates and registered debt is found in three places: Uniform Commercial Code Articles 1, 8, and 9; ORC § 1707.04-.37 (sprinkled throughout), and the rules of NASD, NYSE, and AMEX.  Most of the time, the former two sources will agree completely.  Once in a while, though, there may be some slack between the two.  It usually doesn’t cause a problem, but it does every once in a while.


Article 8 classifies stock in corporations as investment securities.  Nearly all courts will say that close corporation stock, even though it’s not publicly traded, is of a type that is publicly traded, and thus they will apply Articles 8, 9 and 1 in full.  A very small number of cases will deviate from this approach.  What’s important about investment securities?  The big deal is that it’s just like the Record Acts!  A bona fide purchaser is someone who gives consideration, acts in good faith, and who is not on notice of an adverse claim.


Let’s say bank B lends Mr. Smith $100,000 on Mr. Smith’s GE stock certificates.  Smith takes the certificates to bank B and endorses them in blank, meaning, he doesn’t say who he’s endorsing to.  The bank will put on a signature guarantee, in case they have to foreclose on the pledge and sell the stock.  The NYSE rules require a guarantee of signature from an NYSE member firm or a bank.  The loan officer is negligent and puts the certificates in his briefcase.  On the way home, he loses the briefcase!  A thief finds the briefcase and the stock certificate endorsed in blank.  The thief takes the certificates to his stock broker and the stock broker has no reason to doubt his word that he bought the certificates from Smith.  The broker sells the certificates through NYSE.  The purchaser has 100% title to those certificates.  How does bank B change its operations after this event?  They will have Smith sign a separate piece of paper: a stock power or assignment.  They will keep the two documents separate at all times.


State statutes protect the company in paying dividends.  They may rely upon their books of record unless they have actual knowledge to the contrary.  But there are two exceptions to this rule: (1) upon final dissolution, to get your money from the company, you must present your actual certificate, which they will stamp “cancelled”, and keep it.  (2) If it’s a series of payments in partial liquidation, you’ll have to present your certificate several times.  This is certainly cumbersome, but the Internal Revenue Service loves it because they can trace who gets what in dividends and interest.  Some companies have gone to a wholly electronic dividend payment system, but these are the small minority.  Most use the old paper method.


Public offerings of debt over one year in duration have to be in registered form to get the Internal Revenue Code § 163 interest deduction.  The Internal Revenue Service pushed for this!  But there are two exceptions: (1) if it’s a non-public issue of debt, for example, the debt of a close corporation, then you don’t need to comply.  (2) If it’s less than one year, even if it’s public, you don’t need to comply.


Salgo v. Matthews – This case involved an insolvent insurance company in Texas.  The Federal Bankruptcy Code does not apply to insolvent insurance companies.  The insurance departments have the power to go into state court and get receiverships and that’s the way insolvent insurance companies are handled.  What happened here?  It was a proxy fight!  A big block of stock was held by an insolvent insurance corporation.  On the books of the company where the proxy fight was taking place, of record, all that was indicated was that the insolvent insurance company was the holder of record.  But that wasn’t the whole story!  The Texas trial court, which is the court that appointed the receiver, had this issue come before it and it issued an order as to how the shares in the company where the proxy fight was taking place would be voting.  The issue was whether the Texas court’s order was valid, and whether it had to be recognized by the company having the proxy fight.  Yes!  You could go “a little bit behind the record”.


State statutes literally require the appointment of an important officer called the Inspector of Elections for each shareholders’ meeting.  This person is important because if there is a close or disputed item, the inspector will conduct an administrative hearing, take evidence from lawyers for both sides, and then will issue his certificate.  He’ll basically say, “Jones won” or “Smith won” and give his reasoning.  In most states, that report is accepted in the courts prima facie.  There is a presumption that they are correct.  If it’s a close corporation and you don’t anticipate any dispute, they’ll usually pick one of the corporate officers and name him Inspector of Elections.  If there is likely to be a dispute, they’ll hire one of the Big Four accounting firms.  If you have issues that you want to work out up front (before the meeting) in court, in many states the only way to do so is through declaratory judgment.  If you went for a mandatory injunction, they may say that you’re invading the responsibility of the Inspector of Elections.  But if you ask for declaratory judgment, there may not be a problem.


Ling and Co. v. Trinity Sav. and Loan Ass’n. – On the back of the stock certificate in small print was a notice that transfer of a big block of stock probably would require prior approval of the NYSE.  The person pledging the stock didn’t make his loan payment and the S & L wanted to foreclose and sell the stock.  But what’s the problem?  The rules of the NYSE did somewhat prohibit the transfer, and those rules were not unreasonable restraints on alienation on a common law basis.  The court holds that a straightforward interpretation of Article 8 of the Uniform Commercial Code says that generally speaking, restrictions on transfer must be conspicuously put on the face of the certificate (e.g. full caps or a different color with big type).  Neither one was done here!  The Uniform Commercial Code goes on to say that if it’s a bona fide mortgagee or purchaser for value without notice of this, that person will take free of the restriction.  The court held that since the notice hadn’t been placed conspicuously on the face of the certificate, the trial court should determine whether the S & L had actual knowledge of the restriction at the time that they made the loan.


The second issue was whether the restriction was valid under the Texas Corporation Code.  Shipman claims that they strained a bit, but they found that the restriction was not unreasonable under common law, and thus it would meet the Texas standard.  The Ohio standard is that unreasonable restraints on alienation are not valid, but the case law shows that some strict restraints will be allowed, especially given a good reason.


Security title


In these two cases, the stock certificates have been genuine.  But forgery exists, and it’s a problem!  About a dozen years ago in Japan, a very rich lady went to #6 bank and presented what she claimed was a negotiable certificate of deposit from #1 bank.  It had the lady’s name on it and it was for several billion dollars U.S.  She wanted to pledge the instrument in return for a loan of a few billion dollars.  #1 bank was very solvent.  #6 made the loan, she went through the money really fast, and they had gotten her to endorse the certificate of deposit in blank.  #6 wanted to cash the certificate at #1.  #1 said that it was a forgery!  The government of Japan met and bailed out #6.  How could this be avoided?  If you’re worried about forgeries and you have a negotiable instrument, the bank will want to go to security title.  #6 bank would have told the lady to endorse it in blank.  Then they would say that as soon as they transfer the certificate to their own name they would write her a loan check for $2 billion.  Had #6 followed this procedure, #1 would have noted the forgery and would have told #6 that she was trying to con them.


But debtors will fight security title!  That’s how mortgages came up in England!  If you wanted a loan from a rich dude, then you had to give the dude title to your land.  If the dude failed to give back your deed when you paid the dude back, you would go to the court of equity and force the dude to return the deed.  Note that the parol evidence rule today still recognizes the problem in that one of the exceptions to the rule is that if something appears to be an absolute conveyance is actually a mortgage, then parol evidence can be introduced to show it’s so.




In re Radom & Neidorff, Inc. – This case talks about dissolution, which has two “flavors”: (1) voluntary and (2) involuntary.  Voluntary dissolution is governed by § 1701.86-.91, where the shareholders vote to dissolve the corporation.  That vote will give the directors authority to sell the assets and .86-.91 will direct the directors (at their own peril!) to pay or make adequate provision for all creditors.  Then the directors will distribute the cash left over to the shareholders.  Once in a great while, it will be an in-kind­ dissolution of the corporation.  If there’s only one shareholder, and they only own Greenacre, then the corporation can distribute Greenacre to the sole shareholder.  That’s rare, because under the Internal Revenue Code §§ 331-338, if it’s a Sub C company, there will be a double tax: one at the corporate level and one at the shareholder level.  That’s why companies often use an LLC.  The tax problems can be overcome if the sale is set up solely for the stock of another company: the whole thing can be tax-free!


Involuntary dissolution comes in two “sub-flavors” at common law: a court can enter an order of dissolution when it finds (1) fraud, (2) oppression (in a close corporation), or (3) deadlock (by statute).  You’ll find these statutes in Ohio at § 1701.86-.91.  They read very much like the New York statute in the present case.  So we’re looking at a particular way of involuntarily dissolving a corporation.  Here’s an important legal point: all dissolution orders by courts are on the equity side of the docket (as opposed to the law side).


What are the facts of the case?  We had a New York statute that on its face was broad in the categories of deadlock and oppression.  There were two directors: the sister and the brother who actually ran things.  Was the sister an employee of the company?  She was not.  Her husband had been a 50% shareholder with her brother and when her husband died, he left his stock to her.  Her husband had been an employee, but she isn’t.  The company is solvent.  It’s making plenty of money because the brother is a good businessman.  This is sort of the opposite of the Hatt case.  The brother and sister don’t get along!  There’s a deadlock!  The board can’t do anything because a majority can never be mustered!  There’s also a deadlock at the shareholders’ level.  If there is a deadlock at the shareholders’ level, the directors stay in place until their replacements are elected and take office.  This is different from the political arena!  If the board deadlocks, the president keeps their ongoing powers!  Recall Wilderman!


At one time, the directors had agreed on the management of the company and the brother was making money for the company.  Shipman thinks that the bank signature card for the company required the signatures of both the brother and the sister.  Usually, only one or the other’s signature is needed.  This is different than the case of Wilderman.  The brother and sister are suing each other!  The sister won’t sign his salary checks!  But he had a very simple remedy: he could have sued under Rule 65 for a temporary injunction.  In Ohio, you would add Crosby v. Beam to that.  He made a buyout offer to her, but it was ridiculously low, even laughable.  His lawyer then moves under the New York statute for an order of dissolution.  Both levels held that the statute says courts “may” enter an order of dissolution, not “must”.  Why would they entertain the notion?


The person seeking equity must do equity.  If the person seeking equity has unclean hands and the other person doesn’t, then you don’t get your relief.  If both people have unclean hands, then you consider their “comparative rectitude”.  Equity orders are heavy stuff!




Deadlocks are fairly common in closely-held corporations.  It’s not uncommon to see these kinds of disputes arise, and they’re pretty difficult.  What’s the lawyer’s duty in this kind of case?  The ABA says that if there is dissention within the “corporate family”, you take orders from the majority bloc of the board of directors.  But here, we go a level beyond that.  The board of directors is split and fighting.  The ABA says that you can’t represent any member of the board and that you should tell them to each get their own lawyer.


Shareholder voting


Gearing v. Kelly – Here we have two families that come together to start a corporation.  Let’s say that each has 100 shares out of 200 shares outstanding total.  The company they form has no cumulative voting, it has straight voting.  Straight voting means that if you own 100 shares and there are four directors all elected annually (that is, the board is not classified – divided into two or three classes where some are elected each year and others are elected in alternate years), and they haven’t opted to have cumulative voting in the charter, then for each of the four spots, you can cast 100 votes.  To put it another way, you cannot accumulate more than 100 votes and spread them as you wish.


In Delaware, the rule is that if the charter is silent, then it’s straight voting, but if the charter has a cumulative voting clause then cumulative voting will be allowed.  Cumulative voting is not consistent with regular political voting in the United States.  In England and the United States, proportional representation is frowned upon.  Instead, it’s “first around the post”, and the person who gets the plurality wins.  There were three presidential candidates in Ohio in 1992.  Clinton got way less than 50%.  The first around the post was Clinton, and thus he got all of Ohio’s electoral votes.  Nebraska and Maine are the only states with a proportional system.  In many parliamentary systems proportional representation is encouraged, and some of them even use cumulative voting.


The essence of cumulative voting is that you take the number of directors to be elected, multiply it by the number of shares you own, take the product and you can distribute it as you wish.  In good times, the company gave each of the two families two directors.  They went into the annual meeting and agreed to cast a joint ballot of the two shareholders, giving each side two directors.  But one of the directors from one side resigns due to disputes that have arisen.  The New York statute at that time said that the board of directors, in the case of a death or resignation, could elect a successor unless the articles of incorporation stated otherwise.  But there was no special quorum dispensation and no special dispensation on number of votes needed (Ohio has a different statutory scheme and the Gearing problem can arise more easily here than in New York).


Let’s say Jones director #2 resigns.  Smith #1, the chairman of the board, can call a special meeting of the directors.  All statutes and all bylaws and all charters will give him that power.  He gives proper notice of the time, place, and purpose of the meeting, namely, to elect a successor to Jones #2.  If you have a four person board of directors, the ordinary quorum requirement will be three, a majority.  If one director resigns or dies, the ordinary quorum requirement remains the same: a majority of the full board of directors.  So Jones #1 boycotts the meeting at which Smith #1 and Smith #2 elect Smith #3 to the board of directors.  Jones #1 brings an election review proceeding.  In Ohio, you would go to the county prosecutor to get them to bring a quo warranto action.  The judge will appoint the other side’s lawyer to present their side.


What’s quo warranto?  It’s half civil and half criminal!  It translates to: “By what right do you hold an alleged office?”  Jones #1 says that if she showed up, the Smiths would have screwed her over by appointing Smith #3.  She claims that the only way she could keep the balance from shifting was to boycott the vote.  It’s an appealing argument, but what does the court hold?  They say that Jones #1 was bad because she purposely didn’t show!  Thus, they don’t give her any relief.  How do you avoid the Gearing problem with two different classes of stock (class “J” and class “S”)?  How do you handle death, resignation, or disability under the Ohio statutes?  Stick with situations where there is an even number of directors.


A word about statutes: the first thing you do is read them carefully.  Use the plain meaning of the text first; that’s where you start.  Most of the time that’s also where you end.  But, later in the course, we will spend time with fiduciary duties, which are largely a product of court decisions.  Legislatures, by and large, leave the issue up to the courts.  Fiduciary duties can take strange twists and turns.


Statutes usually have a long list of definitions at the front, and R.C. Chapter 1701 is no exception.  In the old days, these definitions were alphabetical, but about 25 years ago, they gave up, and thus they are no longer alphabetical.  We need to read these definitions carefully, noting that they’re in no particular order.


Also, note that the statutes in our little books are about 15 months out of date.  Make sure you check the law reporter for something that is totally up to date.


Requirements for a valid vote


It was held in Gearing that the woman, by purposefully being absent from the meeting, sort of “dirtied her hands” in a way that equity is not available to her.  This case ties in to the issue of what makes for a valid vote by directors or by shareholders.  There are four requirements:


Valid call


There must be a valid call by a person having the authority to call.  In Gearing, for example, the guy on the other side appears to have the power to call.  By way of explanation, the statutes distinguish between annual meetings versus other meetings scheduled by the charter or regulations (special meetings).  In general, the people in charge of a company will give notice of general or annual meetings.  The O.R.C. requires that for shareholders’ meetings.  As to directors’ meetings, however, the O.R.C. appears to say that the notice for directors of either special or general meetings need not state the purpose.  That is contrary to the common law, and if you’re the chairman of the board, you ignore this in practice and give decent notice anyway with the purpose.


Valid notice as to time, place, and purpose


The notice must be valid as to time, place, and purpose.  The rules are slightly different for shareholders as opposed to directors.  At common law, if it is a regular meeting, in theory, notice need not be given.  But in practice, you should not rely on that rule, especially if you’re a public company.  If you’re a public company, you must follow SEC rules.

How much lead time do you have to give?  Check your charter, bylaws, and state statutes and find out how much notice is required and how you compute it.  Be careful!  R.C. 1701.02 says there is a “mailbox rule”, more or less.  But…Shipman says this is probably unconstitutional under Tulsa Collection, a U.S. Supreme Court opinion written by Justice O’Connor.  This is part of the line of cases defining procedural due process for state action.  It’s a long line of cases that starts with Mullane from the 1940s.  That case involved the settlement of common trust funds.  Banks got the New York legislature to pass a statute that individual notice didn’t have to be given to settlees, but rather than publication in a newspaper in Manhattan would be enough.  Justice Jackson wrote the seminal procedural due process opinion of all time, and said that this procedure isn’t valid under the Fourteenth Amendment!  For known beneficiaries, he said, notice must be given by ordinary mail.

In Tulsa Collection, a will was admitted to probate in Oklahoma.  The Oklahoma statute provided that notice must be given within 60 days after publication in an Oklahoma newspaper of the death of the decedent and those who didn’t meet the deadline were forever barred!  The facts were that the decedent had a big debt to the hospital for his last illness.  The executor was very aware of this and gave no actual notice to the hospital.  The hospital failed to meet the deadline!  Thus, the executor says: you’re out of luck!  Justice O’Connor held that in a “garden-variety” case, there is no state action for purposes of the Fourteenth Amendment.  But, she says, where there is a sharp, Draconian period, it won’t govern as to creditors that the executor knew or should have known about (because it ain’t “garden-variety”!).  As to those people, individual notice by ordinary mail and a decently long statute of limitations is required.  Therefore, the hospital wasn’t cut off from filing their personal claim in the probate proceeding.

Another big case just before Tulsa Collection was a mortgage foreclosure in Indiana, where a first mortgage was foreclosed.  Everyone knew that there was a second mortgage and the address of the holder of that second mortgage was known to everyone.  Justice Marshall said that individual notice by ordinary mail was required by the Fourteenth Amendment.  If you put those cases together, R.C. 1701.02 appears to violate the Fourteenth Amendment.  Besides, now we have fax machines and the internet, and thus it makes no sense!  In a close corporation, you would generally know how to reach the directors and shareholders by fax or e-mail.  If you need to give five days advance notice, just fax it!  So you wouldn’t follow R.C. 1701.02 even if it were constitutional.


Isn’t this a little tedious?  No, you need to be tedious to get the job done!  To get everything right, you better double check the requirements.  It’s not simple!


Quorum requirement


Check if the quorum requirement is met!  Look at the statute, regulations, and the charter, and if there is a special agreement under R.C. 1701.591, you must look at that too.  Those agreements are kind of rare, though.  If you have four directors and one resigns, then the quorum remains at three (a majority of the full membership).  But a quorum need not mean a majority.  Maybe it means that everyone must be there!


There are two big exceptions: (1) Ohio’s statute says: if there is a vacancy in the board of directors due to death, resignation, total disability, etc., then “unless the articles are to the contrary, the remaining directors can fill the vacancy even if the remaining directors are less than a quorum”.  This makes the Gearing problem worse in Ohio than it was in New York!  (2) What quorum of shareholders is needed to elect directors?  It’s tricky!  In Delaware, by statute, one-third or more of the outstanding shares must be represented in person or by proxy.  Proxy means that you get permission from another shareholder to vote on their behalf at a certain meeting on a certain date.  That piece of paper is called the proxy.  The person who holds it is called the proxy agent.  For a big public company, they will solicit your proxy, as required by federal law.  You sign the proxy card and they will send you a stamped return envelope, you put it in the envelope and return it.  Almost all proxies are revocable, because it’s an agency that’s seldom coupled with an interest.  The interest of the proxy agent in voting, standing by itself, is not enough to make it an agency coupled with an interest.


Consider the situation under the Model Business Corporation Act.  If you have a four person board and one person dies, then three is a quorum.  If you have the three living directors show up and you have a 2-1 vote, you have good action.  One yes and two abstentions under the common law is not good action.  But Cullen v. Milligan held that if you’re present and abstain from a vote on dividends, it counts as a yes.


What are the exceptions again?  Let’s say Smith is the President and CEO of Smith, Inc., which is a corporation.  Smith owns 100% of the stock.  The company runs a mid-sized grocery store.  The problem is that the corporation is having financial difficulties.  Mr. Smith talks to Mr. Jones and asks Jones to sign a two-year contract with the corporation as general manager (not an officer).  Part of the deal is that Mr. Jones will lend the company $200,000.  Mr. Jones’s lawyer says Jones will do this only if Smith gives Jones an irrevocable proxy to vote his stock during the two year period.  Smith agrees and writes out a document as an irrevocable proxy.  The last paragraph says: “This is a proxy coupled with an interest, and it is irrevocable for the two year period.”  According to the Restatement Second, that will be a valid, irrevocable proxy for the two years because it’s coupled with an interest.


New York and Delaware, by statute, go even further, saying that if Jones doesn’t lend any money but simply agrees to be general manager for two years under a two-year signed contract, that if a proxy is given and it is stated to be irrevocable, then it will (by golly!) be irrevocable because the statute says so!  Ohio doesn’t have a comparable provision.  In Ohio, you would go under the common law or R.C. 1701.591.


In Ohio, when it comes to election of directors, the statute itself imposes no quorum requirement whatsoever.  Thus, in theory, if a company had 1 million outstanding shares and Mr. Jones, owner of one share, was the only guy who showed up to a duly called meeting to elect directors, then unless the charter or regulations provide otherwise, Mr. Jones is a valid quorum!  This seems like a shock, but this is true of presidential elections too!  If only 10% of the people voted, the election would be just as valid as if 40% of people voted!


Valid vote


In all states, once there is a valid quorum at the shareholders meeting, the vote requirement is simple.  You need a plurality.  It’s the English/U.S. “first around the post” political scheme.  It’s non-proportional representation!


Shareholders can vote by proxy, but directors cannot.  They vote only if they show up at a meeting.  But there are two exceptions.  Delaware and Ohio statutes say that if you have a valid telephonic hookup on which all directors can speak to each other, then the vote taken telephonically will be binding.  The statutes also provide a handy tool: action can be taken without a meeting if you have all directors or shareholders sign a document whereby they assent to a certain action!  The signatures need not be on the same document if you send out counterparts to everybody and they sign and return them by fax or mail.  You can collect up the piece of paper and collectively it will be enough.  You can even have a joint meeting of shareholders and directors!


In Delaware, there’s a statute that sets out the consent procedure.  If Smith owns 51% of Smith, Inc., which can be a public or private company, then Smith, without a meeting, can file a consent which will be just as valid as if a meeting took place.  Shipman considers this barbaric!  But there are two cautions: if it’s a public company, then under § 14(c) of the Securities and Exchange Act of 1934, you have to send of notice to all shareholders.  Once the action is taken, the statutes generally require that minority shareholders be advised.  We only have this procedure in Ohio in a couple of specialized sections.  One of them is waiver of preemptive rights under R.C. 1701.15.


Suppose the articles provide for four directors, three of whom are present.  The fourth has died.  The remaining directors haven’t elected a replacement yet, and the articles of incorporation preclude that procedure.  The three directors show up.  That’s a quorum, unless the articles require more.  Let’s say valid notice has been given.  If the vote on a resolution is 3-0, then unless the articles or regulations provide otherwise, that’s a valid board action!  What if the board votes 2-1?  It’s tricky!  If the regulations or the charter require a majority of the four, then 2-1 doesn’t cut it.  In many states, that will be valid action, and that’s why in Gearing the lady didn’t show up.  What if there’s one vote for and two abstentions?  There’s a quorum.  Do we match the one against the one voting, or do we match it against the three who aren’t voting?  Generally, this will not constitute board action.  There is some material in the Revised Model Act that goes the other way.


Cullen v. Milligan is an Ohio case involving R.C. 1701.95, which says that for purposes of liability on dividends, a director who is present and does not vote no will be deemed to have voted yes.  The only way to avoid liability under R.C. 1701.95 is to vote.  The question in the case was whether the statute applies to issues other than dividends, and the answer was no, it doesn’t.  In Delaware and most United States jurisdictions, directors are far more “under the gun” than in Ohio.  The common law rule, codified by statutes in most states, says that in order to avoid liability as a director on an issue, if you’re present you must (1) affirmatively vote no and then (2) turn to the corporate secretary and say “Please enter in the corporate minutes my formal dissent from the board action!”  If you’re absent from a meeting, you must get the minutes as fast as possible, and if you disagree with what the board did, you must register your dissent by registered mail to the corporate secretary.


What’s the big deal?  The majority rule is very counterintuitive to laymen and a lot of lawyers.  If you’re a director of a Delaware corporation and they’re doing something foolish, you need to vote no and also make sure it’s reflected in the minutes that you dissent.  The Ohio rule isn’t so demanding, because if you turn to the secretary and say “I vote no”, then you don’t have to take the second step of formally entering a dissent to the board of directors.  The majority rule is not only counterintuitive, but it also builds up bad relations on the board.  It’s annoying enough to vote no!  But when you turn to the secretary and dictate your dissent, it really ticks people off!  But there is a time not only to vote no, but to make sure you enter your dissent into the minutes.  The way corporate cultures operate, once directors get the agenda for a meeting and they decide they’ll vote no, they tell the other directors in advance.  This is often enough to kill the action.


As to shareholder votes, in Delaware, the general rule is that, unless the articles provide otherwise, when shareholders act on matters other than election of directors, for the shareholder vote to be valid, over 50% of all outstanding shares must be voted affirmatively.  In Ohio, the rule is stricter: if the articles and regulations are silent, then for a lot of actions (like merger) the requirement goes up to two-thirds.  If you are a public company, you will hire a proxy-soliciting firm such as D.H. King Co.  If the meeting has been validly called and valid notice has been given then if a majority of those present vote yes, then you’re okay.  You see how abstentions can screw things up.


If you have an even number of directors, cumulative voting will generally prevent a deadlock in the election of directors.  If there are an odd number of directors, it usually will not help.  For more information, look at Aranov & Einhorn’s Proxy Contests.  It’s old, but good.


Here is the math.  First, you can’t form a company in Ohio with straight voting.  Your initial formation must be with cumulative voting.  However, if you go to R.C. 1701.61-.72, you’ll find that after formation, if you get the requisite shareholder vote, you can amend the articles to go to straight voting.  The required vote will usually be (1) two-thirds plus (2) if the vote against is enough to elect one director, then the amendment doesn’t pass.


Say you have four directors.  All of them are elected annually.  The majority of the directors want to go to straight voting.  They call a meeting under R.C. 1701.72.  Frank is a minority shareholder who owns 21 shares.  He can elect one director.  So if he votes no, we can’t switch to straight voting.  But that’s not the end of the story.  The majority can form a mirror image Delaware corporation, and if your articles are silent on cumulative voting, then there is no cumulative voting.  Delaware is like most states!  Then they can merge the Ohio and Delaware companies, which will require two-thirds of the outstanding vote.  But what’s the problem?  On the merger of the Ohio company into the Delaware company, Frank will be entitled to appraisal rights and the fair market value of his 21 shares in cash.  If he held only 20 shares, the charter amendment could go through and there would be no appraisal rights.


Here are a few more procedural points on the Ohio system: it will be straight voting unless one or more shareholders states before the meeting that it will be cumulative voting and the secretary gives notice to everyone that it’s going to be cumulative voting.  Why?  If someone thinks it’s straight voting and shows up and it’s really cumulative voting, that person will get screwed.  Cumulative voting works only if everyone knows the rules in advance.  That’s fairly common in all states.


Let’s prove the deal with odd and even numbers of directors.  Let’s say we have an Ohio corporation whose charter says nothing about cumulative voting, meaning that there is cumulative voting, because the statute says so.  There are 200 shares outstanding.  Smith owns 100 and Jones owns 100.  There are four directors, and they are all elected annually, that is, it’s not a classified board of directors.


How will the two sides likely vote?  From game theory, we assume that each side uses minimax theory, meaning that each side is highly rational and will vote to minimize harm to themselves while maximizing the upside.  This is a rational model, which isn’t to say that it always reflects the real world.  So how will the two sides likely vote?  Take the number of shares times the number of directors to be elected.  Thus, each side has 400 votes.  The statute says that you can accumulate and spread among one or more of the four as you wish to maximize your situation.  The ballot will likely come back with 200 votes for each of Jones-1, Jones-2, Smith-1, and Smith-2.  Let’s assume all the requirements for a valid vote have been met and that there has been notice given that cumulative voting will be happening.  The Inspector of Elections issues a certificate of the result.  There were only four candidates, and therefore a new board will take over!  If any of these people are different from the old directors, the old people will be pushed out!


Here is a different case: say there are only 3 directors, all elected annually.  One or both sides demands cumulative voting and the secretary gives notice.  There is proper call of meeting, proper notice of time, place and purpose, the charter is silent concerning cumulative voting, meaning that in Ohio, voting will be cumulative.  (In Delaware, if the charter is silent, we’ll have straight voting.)  Jones-1, Jones-2, Smith-1, and Smith-2 will all get 150 votes!  But then there’s a deadlock!  No one is elected!  There are no three directors with a plurality over the fourth!  The result is that the Inspector of Elections will enter an order than no directors were elected at the meeting and that the old board of directors carries over.  Don’t forget that in the corporate world, when it comes to directors and officers, you’re elected to serve for a term plus so much longer, if needed, until your successors are duly elected and qualified.  (What does qualified mean?  When someone gets elected to be a director or officer, have them send a letter of acceptance.)  Cumulative voting prevents deadlock in the election of directors only when there is an even number of directors.


How do we get around this?  In the Jones/Smith hypothetical, there are three Joneses and three Smiths who want to be active in the company.  Each is contributing a lot of cash.  Let’s say we’re counsel for the Jones family and a different firm is counsel for the Smith family, while a third firm altogether is counsel for the new company, to be formed.


How do we advise Ms. Jones, who will be the CEO, and who will have two sons active in the business as directors?  How do we avoid the Gearing problem?  We can set the board at six, and since that’s an even number, we’ll get three from each family.  But that doesn’t deal with Gearing!  What happens if the two sons get killed in an accident?  The other side can call a director’s meeting and replace the two sons with directors favorable to their side, and you’d be stuck that way until at least the next annual meeting.


One way to get around this is with a R.C. 1701.591 shareholder agreement.  But these aren’t used much.  The legal fees are pretty high!  Also, you have the same problem that you have with prenuptial agreements.  A third of the time, you can’t negotiate the agreement!  And if you can’t negotiate the agreement, maybe you shouldn’t get married!  Also, if you get too much down on paper, you won’t get a deal.  Also, sometimes when you get lawyers involved, they’ll want to kill a deal over a very small provision.


So what if we have two classes of stock, let’s say Class J and Class S?  Under Ohio law, you can have two classes and you can have the charter provide that the two classes are exactly the same except that each class will annually elect three directors, voting separately.  You can provide further that no board of directors’ action will be valid unless at least one member of each class of directors votes yes.  Then, to go against Gearing and the Ohio statute, you can provide that if there is a vacancy in the J directors, then just the Class J shareholders will be called to a meeting in order to vote for a replacement.  You can provide that the board of directors will have zero power to vote for a replacement.


You can also have Class J voting, Class J non-voting, Class S voting and Class S non-voting.  If the big kahunas of each family want to give gifts of shares without screwing up voting powers, then the kahunas can give non-voting stock.  You can have classes of stock that are almost entirely non-voting in many states.  However, in other states, all shares must have a vote.  Sometimes the statutes and constitutions don’t mean what they say!  Maybe the founders have shares with 100 votes per share, but the publicly issued stock will have 1 vote per share.  Often, that will satisfy state statutes and the state constitution.  In Ohio, in a given class, each share in a class must have the same voting rights according to R.C. 1701.44.  In Delaware, the rule is different.  In Providence & Worcester, a clause said that if you own 300 shares or less, you have 1 vote per share, but if you own more than 300 shares, than you only have 1/10th of a vote per share.  This was in the original charter of the old railroad, and it served as an anti-takeover provision.  Later, as applied to Cincinnati Millicron, there was a shareholder vote to have the same thing, and Delaware courts allowed them to add this clause.  In Ohio, however, a P & W provision is not allowed.  You would have to have different classes of shares in order to have different voting rights.


The Ohio case in the 1880’s against Rockefeller and his trusts were the source of the term “antitrust”.  There are several federal antitrust statutes (such as the Sherman Antitrust Act), and in Ohio we have the Valentine Act.  Tomorrow, we’ll cover ultra vires and read the Litwin case.  In that case, we’ll find that what the officers and directors did was contrary to the bank’s charter.  The plaintiffs’ shareholder derivative action had two counts: (1) negligence and (2) ultra vires.  The plaintiffs claimed that since what the officers and directors did was ultra vires, they had liability without fault (i.e. strict liability).  The court said that the plaintiffs had it wrong.  They said that in the corporation area if what an officer or director does is ultra vires, it’s not strict liability, but rather evidence of negligence.


Why did the plaintiff make the argument that he did?  In the trust area, if you’re a trustee or an executor or administrator of an estate, and you do something ultra vires, the trust rule generally is that of absolute liability without fault.  That rule is related to a rule on conflicts of interest.  Unless a trust instrument provides otherwise, a trustee who sells stock to the trust which later goes down in value has absolute liability.  Fault need not be shown.  In the corporate world, if (1) a conflict of interest is fully and fairly disclosed up front, (2) there’s no injury to creditors and (3) what the director or officer did was reasonable then there is a defense.  It can be hard to show those three things.


Why is there a difference between the corporate arena and the law of trust?  The law of trust and executors and administrators is designed to deal with the conservation of capital, and the law of business associations deals with the same thing.  However, the law of business associations is more entrepreneurial in that it also takes into consideration reasonable risk taking and growth of capital.  We’ll see this again in Wills, Trusts, and Estates.  The ultra vires stuff is important.  What is the lawyer’s role?  What are their possible liabilities?


Attorney opinions


In a major corporate transaction, the third party dealing with the corporation will usually ask his counsel and the lawyer for the corporation whether the contract has been duly and validly adopted by the corporation and is binding on the corporation in accordance with the terms of the contract.  This includes, if needed, the approval of the board of directors, and, if needed, the approval of shareholders, but most transactions, even if fairly large, don’t require board and/or shareholder approval.  The officers of the company can do a lot by themselves.  We will see more on the authority of officers.  The lawyer will have to draw up a memo saying whether shareholder approval is needed, whether it has been obtained, if the shareholders are entitled to appraisal rights, whether you need the approval of the board of directors, whether there has been a validly called meeting, whether papers have been circulated, whether you have the right vote, and finally whether the officers have the authority to do what they’re purported to do.


The attorney for the corporation may want to strike the word “duly” and leave “validly”.  The two terms are not synonyms!  If they were synonymous, they wouldn’t both be used.  “Validly” means that “the holy water may not have been sprinkled on right, but it’s still a valid transaction.”  When you add “duly”, it means that it’s been performed “in a way that would please a grand hall monitor, superintendent of an authoritarian school; square corners have been turned and everything has been done right.”  You have to get the right papers at closing!  You can have big headaches in court in the future, even if you win!


In the last 15 years, the Silverado accords have become a big deal.  Some lawyers had a retreat and talked about how opinions ought to be worded.  If you’re asked to give an opinion subject to the Silverado accords, don’t sign it right away!  Double check the definitions!  They’re “wacky!”  Careful lawyers will add reservations related to environmental laws, RICO, equity orders, and doctrines of good faith and commercial reasonableness.  They will also add a section dealing with fraudulent conveyance statutes.  “They are murder!”  Sometimes you can’t get around this stuff, though.  To limit costs, sometimes the other side will accept an opinion of the corporate counsel if, to the best of their knowledge (not having audited or anything like that), “X, Y, and Z are true”.  Then there will be a paragraph that describes when the firm is on notice of certain facts.  The point is that this is tough stuff.  In opinions, you’ll always have to consider ultra vires.


Some big limiting factors on corporate power are loan agreements, mortgages, notes, and other instruments that you’ve signed with creditors.  The other side will ask for an opinion saying that these old agreements don’t run against the new one.  So ultra vires is a big deal!  Pay attention to it!  It’s very important in practice!




Organizing the company


The naming of corporations and LLCs is mostly, but not entirely, a matter of state law.  There are two or three things you can do.  In most states, you can pay $10 or $15 to reserve a name for 30-60 days.   Trademarks, service marks, and trade dress overlap with local statutes somewhat.  There is also the Lanham Act that allows many of these suits to be brought in federal court.  These statutes are distant relatives of the patent and copyright statutes.  They’re sort of types of intellectual property statutes.


In all states, when you authorize the issuance of stock, you must describe it as either common or preferred stock and you must give the par value for the stock.  In Ohio, by a recent amendment, you can name the initial directors in the articles of incorporation.  It used to be the case that there was an incorporators meeting, and essentially things got complicated.  So the new, simpler method is better.  Also, in Ohio, you’ll have to have a shareholders’ meeting early on because only the shareholders can adopt the permanent regulations.


Regulations and bylaws


What we in Ohio call regulations are called bylaws everywhere else, including Delaware.  In Ohio, the shareholders must adopt the permanent regulations with a couple of minor exceptions found in the statute.  That’s populist.  At the other extreme, Indiana requires the directors to propose and the shareholders to vote upon any proposal to amend the bylaws.  That means shareholders acting by themselves cannot amend the bylaws!  In the middle is Delaware, which is very complicated.  Either the directors or shareholders may, at a meeting properly called with proper notice, adopt or amend bylaw provisions.  However, the board of directors can’t tinker with what the shareholders have done.  In Ohio and two other states, the shareholders, acting alone, can also amend the articles of incorporation!  We’re also one of the few states where shareholders, acting alone, can vote to dissolve the corporation.  There’s a lot of work in advance that goes into forming a corporation.  There are tax factors, licensing, zoning, permits, bank account forms, insurance, and all kinds of other things.


Lastly, all states have provisions concerning foreign corporation (meaning out-of-state) qualifying to do business in that state, e.g. R.C. Chapter 1703.  Why do we have these?  (1) They’re a big aid to the tax authorities to know who to tax.  (2) One of the requirements of these statutes is to designate a registered agent for service of process.  Let’s say a Delaware corporation has its main offices in New York City.  If it’s subject to Chapter 1703, they must file a consent to service of process.  They will often name a corporation service company, such as CT Corp.  They must also have a registered office in Ohio.  CT Corp. can provide that for them too.


Why do people resist this so much?  The consent to service of process statutes don’t stop with torts in Ohio, but govern torts worldwide!  If you’re a Delaware corporation with your main office in New York and you’re qualified to do business in Ohio but also do business in the Philippines, you can be sued in Ohio!  But how do these statutes fare under the Dormant Commerce Clause?  The U.S. Supreme Court has held that if there is some kind of business operation, like an office or store or property or mine in the state of Ohio, then that breaks the chain of interstate commerce enough for Ohio to regulate the business.  If the corporation simply mails things into Ohio, then even though Ohio courts would have jurisdiction over that company in a products liability case, the Dormant Commerce Clause precludes Chapter 1703 from applying.


Bendix was a case regarding Chapter 1703 and also a separate tolling statute in Ohio.  That statute says if a defendant in an action has been out of the state, then in computing whether the statute of limitations has run, you “carve out” the period of absence and don’t count that.  Bendix was an Illinois corporation that delivered equipment to an Ohio vendee and installed it in the vendee’s plant.  Chapter 1703 exempts that from having to qualify to do business in Ohio.  Four years and two months later, a fraud suit against Bendix was started in Ohio courts.  (Remember that delivering and installing machinery constitutes minimum contacts if there’s a long-arm statute!)  Also remember that the plaintiff’s complaint must clearly plead why he is within the statute of limitations.  The vendee said that based on the absence statute, the company could have qualified to do business in Ohio, but they didn’t qualify to do business in Ohio, and thus they’re absent from Ohio!  But Justice Kennedy held that the statute was discriminatory against interstate commerce, and the tolling statute was knocked down.  With the tolling statute knocked down, the general Ohio four-year fraud statute of limitations booted the vendee out of court!  The question is: why the heck did they wait that long?  There’s malpractice somewhere.  So unless you can find a compelling state interest to justify the restriction on interstate commerce, the statute goes down as unconstitutional!


Pre-incorporation contracts and premature commencement


Stanley J. How & Assoc., Inc. v. Boss – Boss signed a contract with the plaintiffs, an architecture firm, to build a hotel.  Boss signed it as an agent for “Boss Hotels Company, Inc.”, which hadn’t been formed yet but was supposed to be formed in Minnesota.  Boss formed a company with a different name in Iowa instead.  There were problems with the building of the hotel.  How sued Boss personally for unpaid fees.  Should Boss be personally liable for the debts of the nonexistent corporation? Boss, as a promoter, will be personally responsible for the debts of the corporation he was to form unless it was understood and intended that the new corporation to be formed will be the sole obligor.  Boss is held personally liable for the debt to How.  Check out the signature lines!  Ed Boss signs for a Minnesota corporation that hasn’t been formed yet!  The corporation is to be the obligor.  But the corporation isn’t formed and there’s a suit by the architect against the promoter.  This case represents the majority view in American law.  It’s even more the majority view under English law.  How come?  It’s an axiom of agency law that if there is a non-existent principal and the agent knows it, and the agent signs on behalf of the non-existent principal, then the agent is absolutely liable.  Does this seem harsh?  Courts want someone liable on the contract.  They don’t want legal “airballs” out there.  Is there American authority to the contrary?  Yes, in the Quaker Hill case in the notes, the vendor twisted the promoter’s arm, and the promoter signed the way that Boss did.  They found that the usual rule was not fair under those facts.  But that’s a minority rule.


What happens if the corporation is formed?  If the corporation is formed and you have a highly formal document, namely, a 3-way novation agreement, then it will clearly be valid.  A novation is a recognized “animal” of contract law.  But things usually aren’t that simple!


The McArthur case talks about ratification and adoption, which are agency terms both in tort and in contract.  In torts, we learn that even if there is no authorization up front and even if respondeat superior doesn’t apply, if the principal ratifies the tort afterwards, then you may sue the actual tortfeasor and the principal.  For example, if you’re a bus company superintendent and a driver comes in saying: “I socked this dude on the bus to teach him a lesson because he was annoying me”, and then the superintendent says: “I woulda hit him three times”, then that is implied ratification, and the company will be liable.  Ratification can be implied.


How does this come up in the context of pre-incorporation contracts?  In McArthur, we’re in Minnesota in the 1880’s.  First off, the promoter and employee orally agree on a 14 month employee contract.  On April 2, the corporation is formed and the board of directors meets.  They have knowledge of the oral contract of employment made by the promoter in January.  They approve!  Then, on July 2, the employee is dismissed without cause.  The employee sues for damages against the corporation.  It’s not an action for specific performance!  It’s a legal action.


What’s wrong here?  In the old days, and the new days in some states, partial performance doesn’t take a contract outside of the statute of frauds.  At the time, there was no strong partial performance doctrine!  The employee says that this was ratified by the board of directors, and therefore the corporation is bound.  The corporation gives two defenses: (1) under British law and many American states, if the principal was not in existence when the agent made the contract, then there can be no ratification because the ratification relates back to the original event, and there was no corporation in existence on that date!  Besides, if you relate it back to that date, you’re in violation of the statute of frauds!  So this seems like a good argument.  But what the court held was that there is a separate of related doctrine of adoption, and that the board could not ratify on April 2, but it could “hop over one compartment” and adopt, which doesn’t relate back to January 2.  When we put the day at April 2, there are 11 months to go, and there is no statute of frauds problem.  The doctrine of restitution would apply to any corporation that is formed.


What about the lawyer who does the work of bringing a corporation into existence?  Does the lawyer have a right to get paid when the corporation is born?  The cases are split.  Let’s say Peter Promoter walks into your office with his wife, Paula.  They want to promote a company and it will take a lot of complicated and detailed work.  Can a lawyer represent both of them?  You have dual clients.  Under Canons 5, 4, and 9 of the Ohio Code of Professional Responsibility, you must warn them (1) of the potential conflicts between them, (2) that there is no strict attorney-client privilege and that what one tells you can be discovered by the other, and (3) that there would be advantages to each one having their separate attorney.  If, knowing this, they still want you to represent them, that’s fine, with a major caveat: on every major matter, you would have to stop and explain how the major matter is favorable and unfavorable to each client.  It’s a same thing when a married couple comes in and wants you to craft both their wills.  This can get hairy!


Here’s a widely used hypo from CLE symposia: H & W come in and want you to draft both of their wills.  The ordinary will is fully revocable until the person dies and/or goes crazy (AKA “lose mental capacity”).  You draft the wills, and married couples will usually leave to each other.  Three months later, W calls, saying that she wants a new will drafted leaving everything to her lover.  So the first question is whether you can do that.  Of course you can’t!  What else do you have to do?  At a bare minimum, you must phone the husband and tell him, at minimum, that you can no longer represent him vis-à-vis the will, that you’re no longer representing the wife, and that he should immediately go to a new lawyer to make a new will revoking the old one.  You also have to tell the wife that you can no longer represent her at all.  Representing joint clients can get sticky!  Some say you have to tell H about the lover.  Shipman supposes they’ll get the message when you tell them to go get a new lawyer and a new will.  What if the husband says, “Why are you telling me this?”  You want to make sure that nobody gets killed.  Later, we’ll talk about quasi-clients in the corporate area: they’re not quite joint clients, but you incur the same duties.  There are also third-party non-clients who are in privity of contract with you, for example: if you represent a corporation selling Greenacre to a third-party, and that party wants your opinion that the contract is cool, and you address the opinion to that party, that is a third-party non-client who is in privity with you.  You can be liable in negligence on the opinion to him!


Here’s a hypo we were supposed to think about: Mrs. Smith wants to buy some land for a corporation that hasn’t been formed yet.  She doesn’t want the land for herself, but only for the corporation.  Can she assure that the land is available if she forms the corporation?  She’s not sure if she can get loan from her husband and parents.  We’ll represent Smith and the corporation but not anybody else because the conflicts are too strong.  From Stanley J. How, we find that a contract between the corporation to be formed and the owner would leave her holding the bag if the corporation isn’t formed.  The thing to do is to pay the guy to have an option running a few weeks.  The option states that it may be assigned to a corporation to be formed.  If the formation of the corporation goes ahead, she assigns the option to the corporation for the cost of the option.  If the corporation doesn’t get formed, she’s only out a few hundred dollars for the cost of the option.


If a corporation was either a corporation de jure (meaning in perfect compliance) or de facto, nobody can complain about the errors.    Last time, we had worked our way through Assignment 10(d) and cases under the old Model Business Corporation Act.  Under that Draconian and straightforward position, are you going to hold mere inactive investors to the same liability standard that you hold active investors?  The courts said no, because the very purpose of corporate statutes is to encourage investment especially by inactive investors and you don’t want to be Draconian.  Note that in Ohio and Delaware statutes such R.C. 1701.922 (only a dozen years old, and which mirrors the Delaware statute) are extremely protective, and after giving a lot of protection in the statute, it states that it does not limit or displace common law doctrines such as de facto, estoppel and so on.


Frontier Refining Company v. Kunkel’s, Inc. – This case arises in a state that had the old Model Act formula, meaning your corporation is either formed or not with no gray area.  A promoter wanted to start a gas station.  Kunkel needed additional money and he went to two prospective investors: Fairfield and Beach.  He asked them to invest in the gas station.  This case shows why investors should get a letter from the corporate lawyer stating that the corporation is validly and duly created under state law.  The two guys wrote checks to the promoter, who promised to form a corporation, but never did.  The promoter goes to the owner of the service station and enters into contracts under the name: “Kunkel d/b/a Kunkel’s, Inc.”  However, he never went to the Secretary of State and he never filed a charter!


The business went belly up!  The seller of the gas station wasn’t paid!  So the seller sues the promoter and the two investors.  The testimony at trial was disputed.  There are six different theories the lawyer and client will usually put forward: (1) general partnership, (2) agency, (3) joint enterprise, (4) statute, (5) third party beneficiary, and (6) guaranty.


The joint enterprise theory, like agency, covers both profit-making activities and all other activities (i.e. not just business activities).  There is some case law in Ohio suggesting that joint enterprise is alive and well!  The joint enterprise theory is never applied to the ordinary carpool to work.


If there is co-ownership of a business for profit, it fits the general partnership statute, and you can reach all the partners individually.  Another category is the third-party beneficiary.  It may be that contractual dealings between the capitalist and sweat equity have created a third-party beneficiary.  If they have, a third-party beneficiary can sue in contract.  The next-to-last theory you look at is guaranty.  If Smith, Inc. goes under, but Mr. Smith, the 100% owner, has guaranteed the debts of the company, then you can sue Mr. Smith.  In some states, the statute of frauds may be waived.


In the present case, if you read the Wyoming statute on defective formation carefully, it seems to say that people who act like a corporation even though they’re not approved to be one will be jointly and severally liable for the corporation’s debts and liabilities.  Here, the two outside investors are a bit difficult to put in the category of mere inactive investors.  It’s not as though someone is going to his uncle and is getting a $5,000 loan.  It’s not 100% clear, but Shipman’s reading is that they disregard the statute and go to the theory of estoppel because when the entrepreneur failed to make his monthly payments on what he had borrowed, Frontier sued him in his individual capacity.  They sued Kunkel d/b/a Kunkel, Inc. and got judgment against him in his individual capacity.  The paperwork that he signed with Frontier was all signed that way, and the court’s holding is based on estoppel.  They simply hold that because the fellow was dealt with as an individual, the Model Act provision that might have made the investors jointly and severally liable was inapplicable.


Let us tie up the loose ends of incorporating.  What’s the rule about the number of directors?  The Ohio statutory scheme is common.  The usual rule is a minimum of three directors.  However, if you have only one shareholder, you have only one directors, and if you have only two shareholders then you can get by with only two directors.  Also, if § 1701.591 is invoked, you could have a company with 20 shareholders and only one or two directors.  But there is no upper limit to the number of directors.


Is there a minimum number of shareholders?  Up to 1950, there were court decisions that followed the European practice that since the state statutes required a minimum of three directors, you had to have a minimum of three shareholders.  Statutes in the 1960’s reversed this, and in the United States today, a single shareholder corporation is perfectly legal.  The smaller the number of shareholders, the more likely the corporate veil will get pierced.


But: (1) In many countries, there must be a minimum of three shareholders.  In those countries, if there is an American parent that is the only shareholder, then you get two locals to buy one share each, and they will known as accommodation shareholders.  The parent will have the option to buy back these shares.  Watch foreign statutes carefully!  (2) Even in England, and especially in civil law countries, there will be three or four different classes of corporations.  One of the four will essentially be a hybrid between a corporation and a partnership.  One of the hybrid features will be that the shareholders have joint and several liabilities.  So be careful!  In this country, for professional corporations in some states, they say that doctors may incorporate, but they will have the same liabilities as a partnership.  For example, in England, PLC stands for public limited company.  This is the category for public companies with limited liability.


Always end the name of the company with “(comma) Inc.” or “(comma) Incorporated”.  That is recognized throughout the United States and most of the rest of the world as signifying a corporation with limited liability.  Avoid using “Co.”!  At common law, that denominated joint and several liability on the part of shareholders.  A few statutes in the United States still say that, but you should make the name “(comma) Inc.” and worldwide people will know what you’re talking about.  Some state statutes authorize the use of “(comma) Ltd.”  Don’t fool with it because it’s not exactly clear.  It could also mean “limited partnership”.  You have to hold yourself out as a corporation in every way if you want to be treated like a corporation.


The goal is to file the charter, filled out correctly.  It’s called the articles of incorporation in Ohio and the certificate of incorporation in Delaware.  You fill out the form, take the filing fee, and have it signed by one or more competent incorporator.  When you pay the fee, the Secretary of State will timestamp your copy.  What’s important?  In Ohio, fees are titled by statute.  They’re in Title I.  The filing fees are usually not tiny, but not high either.  Look at the schedule of fees to determine how many shares you want.  Don’t form a corporation with 100 or 500 shares because they’re ultimately going to be spread around a family.  If there are too few shares, you may have to set up a trust to subdivide one share!


Par value: under our statute, you can use par or no-par.  But never use no-par!  Also, never use high par except for preferred stock!  How come?  Many states, like Ohio, impose both a franchise tax and an income tax, and you pay the higher of the two.  The franchise tax is a percentage applied against the assets of the company.  If low par stock is used, and generally that will be either $0.01 or $0.0001 per share, then they will use the par value to determine the tax.  But if there is no par, they will use the fair market value of the stock instead!  Check if the state has a separate stock issuance or stock transfer tax.  Ohio has neither, but nine states have such a tax.  Sometimes that tax can be avoided by holding the closing of a transaction in another state.


If you go back 150 years, people usually set par value at the initial offering, at what they thought the stock was actually worth.  That has ceased to be true in this country, though in some foreign countries it’s still somewhat true.  Today, in this country, par value is partially artificial, though important.  It’s important because the corporation must receive at least par value for the issuance of stock or the purchaser will be subject to assessment by statute and at common law for the difference.  A sophisticated purchaser of stock will always ask for the opinion of the legal counsel to the corporation that the stock is duly and validly issued.  Only the board of directors can issue stock.  The lawyer will also have to check that the charter authorizes enough shares so that there are unissued shares available to cover the issue.  If that is so, then it is not assessable, it is fully paid.  If you use low par stock, like $0.01 or $0.0001, then you probably won’t have a problem, and thus that’s what most attorneys will advise.  One reason you do that is to minimize the exposure of directors and lawyers under creditors’ rights proceedings.  High par can be used to restrict the power of the board of directors, acting alone, without a charter amendment, to pay dividends and/or buy stock back from selected shareholders.


What is assessability all about?  It goes to the heart of a corporation.  The usefulness of a corporation is that you can get inactive investors to buy stock and they have some assurance that if the company goes bankrupt, their assets in their own possession are not going to be liable for the deficit at the corporate level.  Early in corporate history, up until 100 years ago, most corporate statutes made shareholders subject to assessment if the corporation went bankrupt.  As late as 1960, if you filed in Delaware, shareholders were subject to assessment, unless the articles of incorporation provided otherwise.  But in the 1960’s, Delaware met the mainstream of American law and said that in general, there is no assessability.  In the 1930’s, the non-assessability general rule was fully adopted in Ohio.  It’s in the Ohio Constitution!  It’s in Art. XIII, § 3.  Are there still corporations around with assessability features?  Yes, there are: in a few states, policyholders of mutual insurance companies are assessable by the insurance commissioner if the insurance company goes bankrupt.  But what’s the good news?  If you have 20,000 policyholders, generally, in those states, if it is an assessable mutual, then it is not joint and several liability.  Assessability will be several only, and in many states, you, as one of 20,000 policyholders, if there is a shortfall in the company, the insurance commissioner can assess you for only one twenty-thousandth of the deficit.  There are limited partnerships and LLCs around that have an assessability clause.  Stay far away from them!  Within the past five years, one of the leading management consultant general partnerships has an assessability clause that paid out very generously.  Each partner got assessed $6,000!


There is a federal estate and gift tax.  Some states have a gift tax too.  If Mother is setting up a company and putting $1 million in with 1000 authorized shares at $1 par per share, and she immediately give 40% of the shares to her children as tenants in common, go see the tax lawyer because there is a gift there for federal and state purposes.


The state has records that you’ll be interested in from time to time:  The Secretary of State can give you, for a fee, not only a certified copy of the articles of incorporation, you can also get a certified copy of the docket sheet for the corporation running back to formation.  Plus, you can get certified copies of everything that’s there.  The Secretary of State, also for a fee, will give you a certificate of good standing.  What does this indicate?  All state statutes provide that if you don’t make the required filings annually with the Secretary of State and/or your state tax returns, then they can cancel your corporation.  The certificate of good standing says that a particular corporation is in good standing with the state.  If you’re going to make a big deal, you always send someone to the Secretary of State’s office to get that.  Also, you will have to get an attorney’s opinion that the corporation is duly and validly organized and existing as a corporation under Ohio law.  Therefore, the first thing you do is send someone to the Secretary of State’s office to get all this stuff.


In many states, you can get a certificate of tax good standing from the tax authorities.  What’s the significance of that?  It’s limited, but useful, according to Shipman.  They will certify that there are no assessed taxes unpaid.  How does assessment take place?  Case law tells us that assessment occurs in the office of the tax official when that official makes the assessment by writing or typing in the office!  It’s basically a claim by the tax commissioner that you owe money.  Then the assessment is sent to you.  This certificate will not deal with non-assessed tax claims.  That is to say, all tax authorities will have informal or formal audits ongoing, or they will be planning them before the expiration of the statute of limitations.  This certificate of tax good standing does not estop them as to that.  However, it’s still a worthwhile document to obtain.  It’s a part of due diligence.  In many states, a failure to file your tax return or pay your taxes on time can mean the loss of your corporate charter.


Classes of corporations


First off, there is the de jure corporation.  It has either been perfectly formed, or close enough that not even the state in a quo warranto action can challenge.


People v. Ford – This is an Illinois Supreme Court case from around 1921.  The people were represented by the Illinois Attorney General or Cook County Prosecutor.  The corporate statute in Illinois had a requirement that before articles be accepted for filing, they had to be executed under seal.  The Secretary of State screwed up.  Everyone filed on forms provided by him.  They neglected to put the “L.S.” on there!  This was a “friendly action” for a declaration by the Illinois Supreme Court as to whether these were de jure corporations.  If you’re only de facto or by estoppel, it doesn’t save you as against a suit by the sovereign.  You must be de jure!  The Illinois Supreme Court said that the legislature did say this, but the requirement was merely directory, meaning, legally non-binding.  Therefore, the corporations were de jure corporations despite the screw-up.


What’s this merely directory business?  Many state constitutions that didn’t give their own constitutions a lot of effect, when the state Supreme Court was faced with a strong directive in the constitution, they would say that the statement is merely directory, meaning it’s a directive by the people to the legislature.  But there was no recourse if the legislature didn’t do what the constitution said!  If you’re in a state with constitutional initiatives such as Ohio, Massachusetts, and California (along with eight other western states), then if you’re putting a provision in a state constitution this way, you should add a last clause that says: “this provision is not merely directory to the legislature.  This provision is the law and private citizens may sue on it and enforce it.”


So up at the top is de jure.  As of 1940, below de jure, the average state would say even if you aren’t de jure, if you’re a de facto corporation or a corporation by estoppel, then private parties cannot argue that you’re not a valid corporation even though the state may come in a say that you’re not de jure and “cut your head off”.  So in a case involving contract creditors contracting with a corporation that hadn’t gotten its certificate filed, if there’s no fraud by anybody, the contract is made in the corporate name, there was no individual guarantee from the shareholder then you have a corporation by estoppel, if not a de facto corporation.  It takes a bit more to be a de facto corporation rather than by estoppel.  If you’re de facto, it operates against tort and contract creditors, but if you’re by estoppel, it only applies to contract creditors who made a deal with you in the corporate name.


You know a document has been filed when you have a time-stamped copy with the official seal on it that says it’s been filed.  You don’t know before that whether the document has been filed.  Always print and file a day or two early.  Things can get screwed up!  Leave yourself time to recover!


In 1946, the old MBCA, which Shipman said was a “hare-brained” statute, said that you’re either a corporation or not, and there’s no de facto or by estoppel defense.  That’s the situation in Robertson v. Levy.  How far was the old MBCA pushed?  In Sherwood and Timberline, the courts had to follow what the statute said as to the people active in the formation and running of the company.  There’s no out!  They were liable just as general partners would be!  Both cases, however, used a lot of common sense.  As to purely inactive investors, in good faith, the joint and several liability would not apply.  That is generally true throughout the United States.  They will distinguish between those who are active in the formation and running of a corporation and the mere investor, including, often, the spouse, parent, or child of the guy who is running the company.  Shipman says that the courts are exactly right!  The point of limited liability legislation is to get inactive investors to invest in business enterprises, and in a capitalist system, there are ups and downs.  Maybe inactive investors are willing to risk $10,000 or $20,000, but not their home and everything else.  That’s what makes the system work!


Let’s suppose the defectively organized company itself is suing and the articles haven’t been filed.  California adopted a common name statute in the 1870’s.  It spread throughout most of the United States, and Ohio has a common name statute.  This statute says if you’re suing an organization in its common name simply for the recovery of the assets that the company has, the fact that it’s not incorporated or defectively incorporated is no defense.  On the other hand, an unincorporated association or defective incorporated association suing someone else in contract or tort can do so in the common name.  These are widespread statutes, but there are five or six states that don’t have them.  In a state that doesn’t have such a statute and you’re suing a law firm, you need to make copies of the complaint for all the partners.  In Ohio, if you sue a law firm for $10,000, you simply lay one copy of the complaint on the managing partner.  Consequently, if that law firm is suing someone, you’ll need a signature for the firm plus a signature for every partner.  In Ohio, however, the law firm could sue under its own name under the common name statute.


Ultra vires – R.C. 1701.13


This means beyond the powers.  Here in Ohio, in the 1970’s, we were one of the last states to allow that corporations can be formed “for any lawful purpose” and may say so in the charter.  In Ohio today, everyone says “any lawful purpose”.  “Any lawful purpose” doesn’t include insurance or banking!


In § 1701.13, we’re given a helpful enumeration of powers.  Why did they do that?  In the 1920’s, when you had to enumerate your purpose, the charters would enumerate five or six purposes and then would enumerate about 20 powers and then they would say: “the purposes are powers and the powers are purposes!”  They were trying to get back at the legislatures for not allowing the phrase “for any lawful purposes!”  The federal and state governments decided early on that in limiting the powers of corporations they would rely more on antitrust, tax, labor, and environmental laws than they would on provisions in the charter.  That’s very different from the practice as of 1800!  Ultra vires remains important!


What was the law as of 1940, and how did it get up to that point?  If a contract was fully performed on both sides, there is limited ultra vires relief; almost none.  The exception was corporate directors or officers engaging in ultra vires acts, which creates a mild presumption of negligence.  In theory, the state can come in and by action of quo warranto cut your head off for an ultra vires action.


Litwin v. Allen – What if the bank were a state bank under Ohio law?  In this action for money damages, the plaintiff would have to plead and prove recklessness.  It’s an action by or on behalf of the corporation.  That comes from R.C. 1701.59(D), which is about 50 years old.  But that’s not the end of the story!  Look at the “banking trauma” of the 80’s, when many banks and S & Ls went out of business.  The federal government had to spent billions cleaning it up.  It cost a total of around $600 billion to taxpayers.  The federal banking authorities have federal legislation saying that as to banks, a provision like R.C. 1701.59(D) can push the level down to gross negligence, but it can’t push it down to recklessness.  In this case, what the officers and directors did was ultra vires because the charter forbade the loan and transaction made.  They didn’t run it by a lawyer!  The lawyer would have caught it.


If a contract is executory on both sides, then any shareholder of the company can sue the company and the other party and get an injunction to stop it.  R.C. 1701.13, at the end, adopts that rule with this caveat: if the contract is partially performed on one side or the other or if an injunction would be inequitable, then there is no relief.  R.C. 1701.13 provides relief in this area.  The casebook talks about a New York case, which indicates that the courts may go beyond the legislation in giving relief.


Jacksonville Railroad – This came up in diversity litigation in the 1870’s under federal common law (pre-Erie).  A railroad’s charter said that its purpose was to run a railroad between New York and Florida.  The railroad built a hotel at the end of the line in Florida.  There is an action by a shareholder for damages or to stop the hotel.  The U.S. Supreme Court holds, in language reminiscent of McCullough v. Maryland, they say “let the end be legitimate and proper and then all reasonable and necessary means to accomplish that end will be implied.”


Say there’s an Ohio corporation formed in 1921 in Cleveland “to engage in manufacturing”.  They’ve never amended their charter.  The corporation is closely held.  The executive vice president goes to the board of directors with two proposals: (1) buy 100,000 shares of common stock of a publicly traded natural gas company listed on the NYSE, and (2) buy 100% of the capital stock of X Inc., a closely-held Ohio-chartered natural gas company in Cleveland operating natural gas wells.  How do we advise the board of directors as the counsel for the company as to the possible ultra vires problems?  How might they be dealt with?  Assume you’re at a law firm and a senior partner asks this question.  Then he asks: what practical problems of a professional responsibility nature is our law firm going to run into on this transaction in (1) advising the board and the officers and (2) giving legal opinions to the people on the other side of these transactions?  Factor in R.C. 1701.59 and 1701.13(E)(5)(a).  Look at R.C. 1701.69-.72 to see how the charter might be amended.


Ultra vires and “no authority of agent” are two different defenses.  Let us see why.  Ultra vires means that the corporation itself, acting through all of its organs (officers, directors, and shareholders) simply does not have the power.  On the other hand, when you say that the agent did not have actual or apparent authority, it’s entirely separate.  The corporation is saying that the action is something that the directors and/or shareholders should have approved.  This is quite separate, though related to ultra vires at times.


Suppose a particular corporate action is illegal.  Shipman believes that it is a separate defense from the other two, though it is very closely related.  If you’re trying to enjoin an action as a shareholder, and the directors have violated a statute, you will usually add illegality as a count of your suit.  The question will be: does the statute, as interpreted by the court, give standing to a shareholder to raise the illegality issue?  It depends!  This question usually comes up under the rubric of “implied private right of action”.  We use torts lingo.  Note that illegality includes criminality but is broader than criminality.  If certain conduct violates a criminal statute, the conduct will be both criminal and illegal.  But if it only violates a civil statute, the conduct will not be criminal but will still be illegal.


Note that sometimes this is part of contracts lingo, though under a different name.  If a contract is void as against public policy, either party may get a judicial determination stopping the prospective performance of that contract.  This is similar but different from the “implied private right of action”.  In Ohio, under the securities statute, R.C. Chapter 1707, there are three or four express private rights of action,  R.C. 1707.38-.45.  But in those sections, it explicitly says that the courts will not imply private rights of action beyond what we the legislature have expressly stated.  However, despite that language, the Ohio Supreme Court has held that if you have a contract to be performed in the future and that contract is in material violation of R.C. Chapter 1707, either party can come into court and get a declaratory judgment saying that the contract shall not be performed.


The hypothetical from Thursday


X, Inc., a closely-held Ohio corporation formed in 1921 to do manufacturing, states the purpose in its charter to manufacture industrial goods.  It has never amended its charter to broaden that purpose.  Two items come before the board of directors.  I’m the outside legal counsel for X, Inc., and the board of directors and officers want my opinion on both items.  First, one of the officers thinks that investing $500,000 in the capital stock of a big NYSE natural gas company would be a good investment.  The directors ask me whether this would be ultra vires.  In R.C. 1701.13, a lot of powers are given to the corporation and they don’t need to be copied into the charter to be valid.  Generally speaking, according to the statute, ultra vires cannot be raised as a defense by the corporation itself, but that the provision does not limit quo warranto actions by the state.  The provision also doesn’t limit officers’ and directors’ liability.  Finally, non-complicit minority shareholders of the company can bring injunctive actions to prevent ultra vires contracts from being performed so long as the judgment setting aside the contract is not grossly unfair to the other party to the contract.


But that’s not all!  Lawyers are always looking to protect themselves.  “It’s a jungle out there!”  Lawyers have malpractice liability to worry about.  We may be asked to render an opinion that a contract has been duly and validly adopted and is enforceable in a court by its terms.  We may have to render an opinion to our company and also to a third party.


Assuming that the company is solvent and has the money to invest and assuming that the board and officers have done their research in investing in the NYSE, one of the express statements of R.C. 1701.13 is that for companies like X, investing as a pure investor without control in a company doing something different from what your company does is not subject to an ultra vires objection.


Let’s assume that the company is financially solvent.  One of the officers wants X to purchase 100% of the capital stock of Z, Inc., a closely held Ohio corporation producing natural gas in Northeast Ohio, where X has its plants.  If X had been formed in 1980 and the lawyer had put in “any lawful business” as the purpose, there would be no problem.  We would simply make sure they had done their due diligence on Z, and that they have the money to do it.  But this is a 1921-formed corporation with a specific purpose: to manufacture industrial goods.  R.C. 1701.13 says: if you’re buying control of another company and that company is not within your purposes, then it can be ultra vires!  Why do we say “can” instead of “will”?  It probably would be ultra vires, but there’s the possibility that it won’t be, if Z’s natural gas wells are very close to X’s plants and X would plan to use the natural gas produced by Z to run their manufacturing plants.  Then it would be the same situation as Jacksonville (see Hamilton, notes, p. 277).


But let’s say X is getting their natural gas from a utility and they’re happy with it.  We would tell X to look at R.C. 1701.69-.72 and propose an amendment to the articles of incorporation to allow the corporation to run for “any lawful purpose”.  That will probably give rise to appraisal rights to shareholders voting against the amendments.  There will probably be no problem if X is closely held.


One more point on ultra vires: if all shareholders, voting and non-voting, approve after full and fair disclosure in advance and if creditors are not hurt by the ultra vires action, then the ultra vires cause of action disappears insofar as shareholders are concerned.  There are two people who can come after you: the state can come after you in a quo warranto action.  Also, if what you’re proposing may violate agreements with creditors and the creditors don’t assent, then the creditors can shut down the transaction.  As important as the articles are, the credit instruments of any corporation (from Exxon down to Mom ‘n’ Pop, Inc.) are just as important, if not more.  In real life, you’ll find yourself negotiating with creditors for waivers, you’ll read these credit instruments to find out what is proscribed and what is allowed, and some of the credit instruments get very long and detailed.


Disregard of the corporate fiction


One thing you have to often write an opinion about is whether stock has been duly and validly issued and non-assessable.  Another opinion that must sometimes be given is on whether the corporation is duly organized and existing as a corporation under Ohio law.  Clients will press lawyers for a third opinion: that they, as shareholders, will not be personally liable for the debts, liabilities and obligations of the corporation.  Attorneys will not touch that opinion “with a 50-foot pole”!  There are six or seven theories out there for disregard of the corporate fiction.  You can discuss with a client the things they can do to minimize the problem, but the legal opinion is that you simply cannot and should not give that opinion.


However, it is an uphill battle for people asserting disregard of the corporate fiction because legislatures have purposefully set up corporate statutes and other statutes to encourage investment by inactive investors.  The very first thing that an inactive investor wants is assurance that you can only lose what you put into a stock and no more.  For example, consider the case of Abbott v. Post from 1940.  This case involved the pre-1933 National Bank Act dealing with insolvency of national banks.  Before 1933, national banks had to issue $100 par common stock.  That means the shareholders had to pay at least $100 per share of stock to the company when it was issued.  The act also provided that if the bank went insolvent, each shareholder could be assessed up to par.


What was done in 1933 to encourage investment in banks?  They prospectively did away with the assessment of stock.  Also, both the Hoover and Roosevelt administrations set up the Reconstruction Finance Corporation, whose job was to pull banks out of bankruptcy.  It was run for many years by Jesse Jones, a very wealthy businessman from Houston.  The banks all went to Jones wanting loans from the RFC.  He checked their balance sheet and told them that they couldn’t afford to make the interest payments.  Instead, he caused the RFC to buy preferred stock of the banks, and as the banks recovered, the RFC redeemed the stock and over the years managed to break even.


This case involves a big investor in a national bank who went to a lawyer before he invested.  The lawyer told him about the double liability provision.  So this investor formed a personal holding corporation, put money into the corporation, and then the corporation bought the stock in the national bank.  The investor was the only shareholder of the corporation.  During the Depression, that national bank went belly up!  The U.S. Supreme Court held that there was a strong pubic policy involved and the sole shareholder of the personal holding company could and would be reached.  This had no application post-1933 because to sell stock of national banks, Congress prospectively did away with the rule.


What’s the importance in Ohio?  During the Great Depression, Article XIII § 3 of the Ohio Constitution was adopted, which generally forbids assessability of stock.  That’s where you start Ohio research about disregard of the corporate fiction.


Bartle v. Home Owners Coop. – The parent is a non-profit corporation composed of World War II veterans seeking inexpensive housing.  The not-for-profit cooperative formed a 100% owned stock subsidiary which constructed houses and sold them without profit to the veterans who were members of the parent cooperative.  There is no fraud or “sham” alleged (those are two of the seven possibilities for piercing the corporate veil).  A “sham” is more of a legal conclusion than an aid to analysis, while fraud has some legal substance to it.  But neither one was alleged.  What was alleged was undercapitalization of the stock subsidiary.  The contract creditors of the subsidiary, which went insolvent, wanted to reach the assets of the not-for-profit parent on the ground that the subsidiary was undercapitalized.  They also alleged and pretty much proved that the subsidiary could never make a profit because the deal, from day one, was to make inexpensive houses sold without a markup to impecunious veterans who are members of the parent corporation.


When you have undercapitalization and no profit alleged in a contracts case New York law says that if there’s no fraud or sham, then it means that the financial statements of the company were reasonably accurate and therefore anyone doing the business of the subsidiary could have gotten signed, written guarantees from the parent which would have been fully enforceable.  However, they didn’t do so.  To look ahead to the next case, the court also finds that there is no estoppel.  That’s the majority argument, and that’s still the rule in New York.  But in different jurisdictions it’s different.


Consider the dissent in Bartle.  The dissent makes arguments similar to two tax problems that this setup would have.  From a tax standpoint, the commissioner of internal revenue could attack it in two ways: first, they could use § 482, where you have two or more persons or entities under common control or where one controls the other.  The commissioner may reallocate items of income, expense, and deductions so as to fairly reflect income.  The Internal Revenue Service could have come in here and said that the houses were worth $8,000 but were being sold for $6,000.  It could have allocated $2,000 as dividends to the member of the cooperative parent saying that the difference is an implied dividend.  The dissent argues that this same line of reasoning should apply on the disregard of the corporate fiction theory.  The majority hears the argument but doesn’t find it persuasive.  There are real tax problems here!


Dewitt Truck Brokers v. W. Ray Flemming Fruit Co. – Flemming’s company worked as a middleman between farmers and purchasers of fruit.  Flemming paid the plaintiff trucking company to transport fruit.  Flemming assured the trucking company that he would guarantee to pay them back even if his corporation didn’t.  Flemming didn’t pay them in time, and the trucking company sued Flemming personally.  Flemming tried to argue that he wasn’t personally liable, but instead only the corporation was liable.  The trucking company, on the other hand, argued that they should be able to “pierce the corporate veil” so they could make Flemming personally liable.  The district court found for the plaintiffs and Flemming appealed.  Did the district court correctly find that it was appropriate to “pierce the corporate veil” and make Flemming liable for the debts of his corporation?  When a person owns basically all the stock in a corporation, plus some other factors are present such as a lack of corporate formalities, undercapitalization and non-payment of dividends, or if the corporation is more or less a façade for an individual, the corporation may be disregarded for the purposes of liability and the dominant stockholder may be held liable.  Flemming owned most of the stock.  He never had a shareholder meeting, and he was the only real director.  No one except Flemming ever got paid by the corporation.  Flemming kept withdrawing whatever money the corporation had for his personal use.  The corporation basically had no capital of its own.  Given all this, plus Flemming’s personal assurance to the plaintiff creditor, the appellate court has no problem upholding the district court’s findings of fact.  Flemming is held personally liable for the debt.


This is a contract case.  It’s easier to pierce the corporate veil in torts cases than in contracts cases because a contract creditor could always, in theory, insist upon a guarantee by the controlling person or persons.  In this case, too, there is no fraud or sham alleged.  It’s clearly another undercapitalized corporation.  It’s also pretty much like Bartle in that this corporation could never profit.  In both cases, the corporation is always operating on the edge, and when a bad development came along, they went “over the abyss” into “financial hell”, or in other words, they went insolvent.  Remember that if you can prove fraud or a sham, you can definitely pierce the veil.  Here, there was no express written guarantee by the controlling shareholder, but there’s the “next best thing”: an oral guarantee!  Here we have soft estoppel.  There is not necessarily detrimental reliance.  What happened here was that one of the unpaid creditors went up to the trucker and said: “Hey!  You’re way behind on your payments!”  The trucker said: “If the company doesn’t pay, I will.”  This is the Cockerham case again!  Somebody’s trying to be too (financially) macho!  But that’s soft estoppel, not estoppel per § 186 of Restatement First of Contracts.


In DeWitt, the defendant brings up the statute of frauds.  The statute of frauds says that a promise to answer for the debts of another must be in a signed writing.  The defendant says that this is just crap!  It’s not in writing and it’s not signed.  But, in the last 100 years, the statute of frauds has softened a good bit, though not totally.  For example, if you write out a check with a notation of what property it’s for and what the purchase price is and you hand it to the other guy, even if he doesn’t cash it, it’s held to be a signed memorandum.  It describes the land and the price, so it’s found to satisfy the statute of frauds.  Also, there is the doctrine of part performance, which can get you out from under the statute of frauds.  When a major or 100% shareholder of a corporation makes a statement such as: “I will stand by my corporation!”  The court says that he’s not answering for the debts of another, but rather he’s answering for his own debts.  Post-1980, we have an Ohio Court of Appeals case stating exactly that.


Next time we’ll go over extraordinary transactions: amendment of articles, sale of all assets, dissolution, statutory merger, and control share acquisitions.  All the directors and shareholders typically must approve of such transactions, and dissenting shareholders typically get appraisal rights so they can cash in their shares.  This goes beyond so-called “reorganizations”, which come in two flavors: (1) recapitalization, and (2) amalgamations, or putting two or more companies together in one of several ways.  In Wall Street firms, you never get a department labeled “amalgamations”; it’s always called “mergers and acquisitions”.  Dissolution of the company is a big event!


All of these corporations are either corporations de jure or de facto.  In other words, the plaintiff is not relying on some defect in formation, but instead is going to this question: assuming there is enough compliance to be de facto or de jure, can third parties nonetheless look through the corporate veil and hold the active shareholders, officers, and directors liable?  There are seven different ways to do this.  Public policy is what comes up in Abbott.  Fraud will always appear, though it’s difficult to show.  Soft estoppel was found in DeWitt, which was similar to the Cockerham case.  Undercapitalization was raised in the first two cases which were contract cases.  New York has a tougher rule, saying that if you’re a contract creditor, it is very difficult to pierce the veil because you could have chosen not to deal with the company in contract.  In the absence of fraud or a “mere sham”, only the company will be on the hook.


Baatz v. Arrow Bar – This takes place in a Fargo bar.  Bar owners got a statute passed saying that in South Dakota, there will be no dram shop liability.  Most states have dram shop liability, meaning that if you serve excessive liquor to X, and X goes out and negligently kills Z, then Z’s survivors can bring suit against the bar.  Based on this legislative victory for the bar owners, the Arrow Bar decided to drop its liability insurance.  So their bartender serves too many drinks to X and X runs out and negligently kills Z, and Z’s survivors bring a wrongful death action.  They sue the bartender.  They try to sue the owners too.  If they had been tending the bar themselves, then they could have been sued as primary actors.


The primary actor doctrine says that even though the principal may be liable under respondeat superior, you can also sue the actor.  There are three exceptions of recent vintage, however: (1) Under the Federal Tort Claims Act, if a United States government employee is merely negligent, your only suit is against the federal government itself, and the federal government cannot recover from the actor because the FTCA didn’t include statutory provisions to that effect.  (2) In Ohio and many other state tort claims acts, if a state or local employee is merely negligent, you can only sue the employer and you can’t join the employee, except if the employee has acted recklessly or worse, in which case you can sue both the employer and employee.  (3) Under federal equal employment law, if an executive sexually harasses someone, you can’t sue that executive; you can only sue the private employer.  This doesn’t seem to make sense!  But this doctrine has been rejected through the Ohio equal employment statute.  This means that many plaintiffs’ attorneys send to sue using the Ohio statute rather than the federal statute.


So we can sue the corporation under respondeat superior.  But the problem is that the corporation has a lot of debt to the bank and not much in the way of net assets once you consider its debts.  The bank has a lot of perfected first mortgages on the borrower’s property, because the bank stays in business by taking mortgages on everything.  Why would the bank loan to the company when it didn’t have much capital?  The shareholders were forced by the bank to sign written guarantees before the bank lent to the corporation.  That’s a fact of life!  Until a corporation becomes fairly prosperous with a lot of assets of its own, banks won’t make loans to it unless they get a guarantee from the shareholders.


Undercapitalization as a way to pierce the veil


This is fairly pro-plaintiff in theory.  The black letter rule is that undercapitalization is a key factor, but as to common torts, if the corporation has been covered with reasonable amounts of insurance, that will be considered adequate capitalization.  There was no insurance policy here!  They relied on the state statute!  What’s wrong with that?  The South Dakota Supreme Court declared the statute unconstitutional!  The plaintiff argued that even though the company had some money, the fact that the shareholders had guaranteed the bank loan was enough to show undercapitalization.


In many states, if you have some kind of immunity and you nonetheless get insurance, then that will be deemed a waiver of immunity with one exception: if the insurance policy itself has a clause saying “the writing of the insurance by the insurance company and the getting of the insurance by the insured are not considered to be a waiver of any immunity or privilege”.  If you work for an insurance company, you want to put that clause in all your policies because it will generally be honored.  This is also becoming an issue for not-for-profit organizations.  The cost of directors’ and officers’ insurance has gone way up!  The premiums have probably doubled in the last five years!  Non-profits have convinced their directors (or trustees) that there is nothing wrong with that.  It’s true that it’s less of a problem than with a non-profit, but it’s still a problem.


Radaszewski v. Telecom Corp. – A parent owns 100% of a subsidiary in the “gear-crunching” business.  The subsidiary went to an insurance company and got a good policy.  The subsidiary had a very negligent driver.  The other driver was not negligent.  The injured people can sue the trucking companies.  But people who finance big trucking companies take out mortgages on the “big rigs”.  So the injured party wants to pierce the corporate veil up to the wealthy parent corporation.  There is no fraud, no soft estoppel, no mere sham, so we get to the question: if a parent owns 100% of a subsidiary is there a per se agency or partnership?  But there is no per se!  The very purpose of corporate law is to allow a parent to set up a 100% subsidiary.  If they operate it right, the mere fact that you own it 100% doesn’t mean that the subsidiary is your agent or partner.  If you don’t rule this way, you undercut the very basis of corporate law!


The plaintiffs tried to argue undercapitalization, but the rejoinder was that the subsidiary had an insurance policy.  But the answer to the rejoinder was that the insurance company went bankrupt!  The court holds that there was no evidence that the subsidiary knew the insurance company was on shaky ground.  They made reasonable efforts to get reasonable insurance, and having proved that they’re safe.


In Seminole Hot Springs, a lawyer created a corporation to start a swimming pool.  A kid drowned due to the negligence of the pool’s employees.  The plaintiff sued to pierce the corporate veil and named the company and its major shareholders as defendants.  The California Supreme Court held the piercing of the corporate veil quite proper against the shareholders.


Next, the plaintiff wanted to nail the lawyer for the company because he had acted as an accommodation director and officer because California law at the time required three directors.  The client begged him to do it, and he consented.  “The road to hell is paved with good intentions!”  When the lawyer acts as an accommodation director or officer, he can be reached.  The lawyer’s malpractice policy will usually exclude the lawyer acting as an officer, director, guardian or administrator.  Plus, all insurance policies require a separate ERISA and environmental insurance policy.  However, this court remanded for a new trial against the lawyer because he was not named as a part in the original suit.  The California Supreme Court held that since he was not a party in the original suit, the findings against him were not res judicata or collateral estoppel.  If you’re a plaintiff suing to pierce the corporate veil, you must name as additional parties to your suit everyone who you want to “reach out and touch” financially.


The U.S. Supreme Court took the same view.  There was a suit against the corporation (only) and there was judgment in favor of the plaintiff.  The plaintiff wanted the judgment executed against the shareholders on the grounds of piercing of the corporate veil.  The Court held that there was no way!  If you want your judgment to apply to piercing parties as well as the company itself, you must name those parties in the original suit and serve them.  This is one of the first things that the plaintiff must think about.


Good plaintiffs’ medical malpractice lawyers, when suing a doctor, never name the nurses, secretaries or aides as defendants.  The big reason that they’re not named is that their testimony won’t be helpful to you if you’re suing them.


In a community property state, if H is the major shareholder and the stock is in his name, but it’s community property, to bind the whole community, you must name W as well as H because the community property under her name is not bound to the suit unless you name her!  W may have more money than H if she saved her earnings!  The contract rule on joint liability is that you must sue all jointly liable persons.  However, with joint and several liability, you can pick and sue wealthy people first.  If you win and think you can pick up more money against the others, then you can go and do it!  In contract, however, that’s not so!  So in a community property state, if you’re piercing against one spouse, to bind the whole community you’ll have to name the other spouse and bind him or her.


An issue in all community property states is whether the contract or tort was for the community or separate property.  Check out the Nutshell to start your research.  Keep in mind that in a common law state, you will not be able to reach the marital property of the other spouse if that spouse was not on the corporate board and stayed out of the spouse’s business.


Fletcher v. Atex, Inc. – Maybe courts will toss these terms around as conclusions: “mere agency”, “mere instrumentality” and “no separate personality”.  When you have a parent and subsidiary, you will have lots of overlap of the officers and directors.  You will also have, in a well-run corporation, good coordination of management and cash flow.  Those management tools virtually give a license for disregard of the corporate entity, according to the plaintiff, but the court says no.


United States v. Bestfoods – This gets us into federal-state relations and especially environment statutes.  The Sixth Circuit construed the Superfund statute, which deals with hazardous sites where people have dumped chemicals into the ground over the years.  The federal government surveys these sites and presumably will clean them up eventually.  They designate them, and once they clean them up, they send the bill to “the owner” or “the operator” according to the statute.  If you buy land, you work with an environmental attorney in advance.  They will have aerial surveys.  You will also look at local newspapers.  If you’re a good faith purchaser for consideration and didn’t know, and a reasonable person would not have known of the problem, you can’t get stuck with the bill.


The Sixth Circuit said that disregard in the environmental area would be narrow, would require great proof and that state law disregard could be “disregarding”.  Souter, writing for the Court, says that the federal government and state agencies can rely either on the statute or on general disregard law under state law.  He gets into some more technical points.  Does the plaintiff make out his case merely by showing that most of the officers and directors of the subsidiary are also officers and directors of the parent?  Not necessarily.  It’s not dispositive.


In Fleet Factors out of the Eleventh Circuit, it was a Superfund case and the company couldn’t pay.  Fleet Factors, however, was wealthy so the government went after them on the basis of a loan agreement between them and the little company.  The government claims that the loan agreement was so broad as to make Fleet Factors either an owner or an operator for the purposes of the statute.  There was a big cry in Corporate America, and the EPA issued a regulation purported to overturn the case!  But that’s not all!  The D.C. Circuit held the regulation invalid!  If you work in environmental law, this case casts a long shadow.  So work with an environmental lawyer early!


If you’re a parent, do your due diligence!  There’s also a Fifth Circuit case in which a company bought most of the stock of a subsidiary and left most of its directors there, but then added one of their own directors and a couple officers.  The Fifth Circuit held that the fact that they left most of the old board there was heavy evidence against disregard of the corporate entity.


Stark v. Flemming – A senior citizen is about ready to retire, but she has no Social Security.  She goes to a lawyer, and in order to qualify for Social Security, she put real estate into a business association and took down a salary.  The federal government sued and wanted the court to declare that because she did this simply to qualify for Social Security, it was per se bad.  But the Circuit said no!  If she performed the services, and the wages were reasonable, then it’s okay!


Roccograndi v. Unemployment Comp. Bd. of Review – Three shareholders in a family corporation appealed a ruling saying that they couldn’t basically lay themselves off from their own company to collect unemployment checks because they were really self-employed and had the power to work or not work.  Can the corporate entity be ignored for the purposes of determining whether the claimants are statutory employees or if they are self-employed?  The corporate entity may be ignored in determining whether the claimants are just self-employed people whose business wasn’t going so good at the time.  It seems pretty tricky to vote on who will get laid off each time there isn’t enough work to go around.  This court sees right through it.  The administrative rulings against the claimants are affirmed.


Here is another social insurance case.  Here it’s unemployment insurance.  A family owned the stock of a corporation.  If you worked a certain number of hours per week, then you got unemployment compensation if you were laid off.  The family arranged it such that different people worked the minimum hours to get the unemployment compensation.  The public policy exception was invoked to pierce the veil!


Cargill, Inc. v. Hedge – In Minnesota, if one of Mr. and Mrs. Farmer owns a farm, they have a homestead exemption.  Here, they incorporated.  Can the creditors of the corporation levy on the farm without regard to the homestead exemption?  This is a reverse piercing opinion.  The farmers argue that they were true farmers and thus their homestead exemption should not be set aside.  The court bought it, but many courts don’t.


Pepper v. Litton – Litton was the sole shareholder of Dixie Splint Coal Company.  Pepper sued the company for royalties he was due on a lease.  Before this case came up, Litton made the company confess a judgment, pay him claims for back salary, and then declare bankruptcy.  The district court disallowed Litton’s claim, but the Court of Appeals reversed, saying that the previous judgment was res judicata.  Did the bankruptcy court have the power to disallow Litton’s judgment against the company of which he was the sole shareholder?  Bankruptcy courts sit in equity and can set aside deals that don’t have the hallmarks of an “arms-length bargain”.  Basically, the Court says that you can’t hide behind a one-man corporation to avoid being liable to creditors.


Equitable subordination is a “halfway house” to piercing of the corporate veil.  If the veil is pierced in bankruptcy, you don’t have to get to equitable subordination.  The district judge was outraged!  He didn’t hold that they would disregard the corporate entity.  The Virginia court said that there was no common law fraud involved here: the money was actually owed to the common law shareholder.  If you want to be treated like a corporation, you must act like a corporation.


Sale of assets, statutory merger, and control share acquisition


R.C. 1701.73-.76 says that if you’re going to have a sale of substantially all assets, the directors must propose and the shareholders must approve.  With a public company, the proxy statement will also be subject to the Securities Exchange Act of 1934.  R.C. 1701.86-.91 say that if the shareholders vote to dissolve the company, that gives the directors the power to sell the assets.  What’s the difference?  R.C. 1701.73-.76 deals with the situation where the company will sell all its present assets, take the money, and start a new business.  If you’re going to do this, you must give the dissenting shareholders a cash appraisal.  If, on the other hand, the board of directors is empowered to sell the assets in dissolution pursuant to R.C. 1701.86-.91, there is no appraisal right.  What does this mean for a lawyer?  It means that if you’re going to dissolve, adopt only the resolution under R.C. 1701.86-.91 and do not, on top of that, adopt a sale of assets resolution, because if you do the latter under R.C. 1701.73-.76, the dissenting shareholders will get appraisal rights.  Under 1701.95, if the directors don’t do that, they are individually personally liable jointly and severally.  That tends to get your attention!  Therefore, if it’s a manufacturing company and there is a R.C. 1701.86-.91 resolution and they sell their assets to GM, they will realize that there may be products liability in the future.  What do they do?  They go to an insurance broker and buy tail coverage from a solvent insurer.  It’s the same kind of coverage a doctor or lawyer buys when they retire.  It costs a premium on top of what normal yearly coverage starts.  You don’t want to move to Florida and then have your home taken from you.  And it lasts forever!


Extraordinary transactions


In 1830, the rule was (and it is today) that as to any association (business or not-for-profit) there could be no dissolution, charter amendment, merger, or sale of all assets unless you met one of three conditions:


  1. All shareholders agree,
  2. The charter itself authorizes such action upon a lesser vote, or
  3. A statute authorizes such action on a lesser vote.


In the corporate world, starting after the Civil War, legislatures modernized the statutes in all four areas.  They provided a scheme (similar to what we see in R.C. 1701.69-91) that upon the appropriate stated shareholder vote there could be a dissolution, charter amendment, amalgamation (statutory merger), or a sale of all assets.  These changes were sweeping, and it set the base for the growth of the modern big corporation.  If you look at nearly any corporation’s history, you’ll find many mergers, etc. involved.  It’s a quite Darwinian process: corporation adapt to changing conditions (“the one part of Darwinism that is least controversial”).  In order to make these changes palatable to shareholders, the legislatures provided that many of these votes, if passed, would constitute such a change in the original business deal that it would be only fair to give dissenting shareholders, voting “no”, a cash appraisal remedy.  Legislatures have made the business corporation and the not-for-profit corporation very flexible and adaptable by having the foresight to allow these actions.  But with partnerships and LLCs, much of this flexibility is missing.


In most states, all of these extraordinary transactions require both the board of directors to vote “yes”, and the shareholders to vote “yes”.  Ohio is a little different.  On dissolution and charter amendments, the shareholders acting alone are authorized to do it.  That’s not true for merger or sale of all assets.  Shipman proposes that this is because Ohio is a quite populist state: Ohio and Massachusetts are the only states east of Illinois with constitutional initiatives.  For example, term limits arrived in Ohio by way of a constitutional initiative.  Also, in Ohio, only shareholders can adopt most regulations, and the shareholders may amend the regulations acting alone, which is very rare among state statutes (but correct, in Shipman’s opinion).




Last time, we talked about dissolution and talked about how complicated it is.  The directors must pay or make adequate provision for payment of all liabilities before distributing assets to shareholders.  R.C. 1701.95 gives this teeth!  If the directors fail to do this, they will be individually jointly and severally liable!  (“How do you like them apples?”)


Now we’re talking about the purchaser of a corporation for cash, but I’m not sure what’s happening.  One company buys another.  To what extent does the purchasing company assume the contract and tort liabilities of the target corporation?  The purchase will be taxable to the selling corporation itself.  Then when it dissolves and turns over the cash in excess of liabilities, what the shareholders receive will again be subject to tax.  It’s a double tax!  But if the selling corporation is Sub S, then the double tax will shrink to a single tax because there will be no tax at the corporate level.  But it’s still a big item!  On transactions like this, make sure to get the corporate and environmental people in early.


The United States has had a corporate income tax since 1913.  Almost from the beginning, there have been certain provisions related to tax-free transactions: Internal Revenue Code § 351 (dealing with formation of a corporation) and § 368.  The tax burden on this cash transaction would be monumental (in some cases).  § 368 provides two or three ways to do this tax-free, both to the selling corporation and to its shareholders.  One of the requirements is that the sole consideration be stock (in some cases, voting stock) of the acquiring corporation.  In the transaction described above, under § 368 (a)(1)(C), if the sole consideration is voting stock of the acquiring corporation, this can be done tax-free!


Statutory merger


This is an alternative to one company buying another.  What’s a statutory merger?  Consider the traditional Christian conception of marriage: “the two become one”.  There is a formal merger agreement approved by the board of directors of both companies, the shareholders of the acquired corporation, and, in most cases, the shareholders of the acquiring corporation.  The agreement says that the two corporations will become one.  That’s the “poetry”, but let’s consider the “prose”.  The statute says that all debts, obligations, and liabilities of the acquired corporation, “by operation of law” become debts, obligations, and liabilities of the acquiring corporation.  This applies to liabilities, whether known or unknown, whether contingent or not contingent, and whether contested or not contested.  A big Ohio Supreme Court case of the 1990s applied this language quite literally to a stock redemption agreement of the acquired corporation.  The question was: after the merger, could this be enforced against the acquiring corporation?  Yes!


The de facto merger doctrine


Ferris v. Glen Alden – Statutory mergers are inherently dangerous on the liability side!  It’s very Draconian.  Careful lawyers had developed the habit by the 1950’s, especially in tax-free transactions, of going on the asset purchase.  Ferris v. Glen Alden, decided by the Pennsylvania Supreme Court in the 1950’s, involved an amalgamation of two big NYSE companies.  The consideration was voting stock of the acquiring corporation.  The Pennsylvania statute authorized the sale of all assets and statutory merger in a separate statute.  They chose to go with the sale of all assets.  A shareholders’ suit was brought before the meeting on ultra vires grounds: this was a de facto merger in that the whole business of the acquired corporation was being taken over, stock was being issued, and there was a contractual assumption of all known, uncontested liabilities.  The paperwork that had to be submitted to shareholders differed in the two transactions.  In addition, if it were a mere sale of assets, there would be no shareholder appraisal right.


The Pennsylvania Supreme Court agreed with the plaintiff shareholders and said this really was a de facto merger!  They told the two companies to go back to the drawing board to comply with the notice requirement and give appraisal rights.


Subsequent cases in other jurisdictions expanded the de facto merger doctrine to liabilities, saying: when you buy the whole business for your own stock and contractually assume the known, uncontested liabilities, it is also a de facto merger for liability purposes.  That is to say, you take over all of the liabilities of the acquired corporation, even those that were unknown, undisclosed, contingent, and/or contested!  “Hey, baby!  You’re getting what might be a Trojan Horse!”


Delaware has flatly rejected Farris v. Glen Alden.  Two or three Ohio Supreme Court cases in the last twenty years have said, in essence, that in the absence of fraud or a mere change in form of a single corporation, Ferris v. Glen Alden will not be followed in Ohio.  But that’s not the end of the story.


Ray v. Alad – This case is out of California’s appellate court.  A manufacturing corporation sold all of its assets to a bigger corporation for cash and went out of business.  The acquiring company continued the product line.  After the amalgamation, a machine manufactured by the selling corporation exploded and there was product liability.  The plaintiff could, of course, go after the old company that sold, and under the Uniform Fraudulent Conveyance Act could go after the shareholders.  But that’s messy.  The contractual assumption of liabilities was narrow and clearly did not include this.  There is no third-party beneficiary.  What about the de facto merger doctrine?  The courts in this situation said: Ferris v. Glen Alden involved the acquiring company issuing stock, which in the old days was a requirement of statutory merger.  Where cash or notes are used, it doesn’t apply.  Also, this is a liability that came into being after the amalgamation.


The California court, then much more pro-plaintiff than it is now, said: “Not to worry.  On this narrow set of facts, we will create by a tort doctrine the product continuation doctrine.”  When the acquiring corporation continues the name and product line after amalgamation, injury from a machine built before by the selling corporation will, as a matter of tort law, attach to the acquiring corporation.  This case is not followed in Ohio, and probably not in Delaware either.  In other states, it runs the spectrum.  In Michigan, this doctrine has been embraced, while in other states, they have either modified the doctrine or have declined to follow it.  From a planning standpoint, if you’re a cash purchaser of a product line, the only way to protect yourself is to force the selling corporation, at its expense, to buy tail insurance covering both the selling and purchasing corporations.  That’s the only way, in a number of states, that you can protect yourself.


Control share acquisition


This method of merger is dealt with in R.C. 1701.831 along with the definitions in R.C. 1701.01.  You can, either with a public or private company, simply buy the controlling bloc, up to 100%, of the stock of the acquired corporation!  This can be done tax-free if you use your own voting stock to buy it, Internal Revenue Code § 368(a)(1)(B). Why might you do that?  The acquired corporation may have franchises, contracts, and mortgage notes that would cause real problems if you tried to buy the assets.  The mortgage might be due and payable if you sell the assets!  There may be employment contracts with the acquired company that are very valuable, yet it may be unclear if the employees would be obligated to come aboard.  But if you buy the company, those people still need to come to work for that company.  This mode differs from the other two in an important way: the board of directors has no legal veto power!  With a statutory merger or a sale of all assets, the board of directors does have a theoretical and sometimes actual veto power.  With this technique, you can make an end run around the board of directors!  Then you can boot those guys off the board of directors or expand the board and take control!


There are two flavors of control share acquisition:


  1. Tender offer – it’s an offer by an acquirer to a portion or all of the shareholders of a company to sell stock to you, with the exception that if the offer is not public (Ralston Purina: arf arf arf!), it’s not considered a tender offer.  That’s important because many federal and state statutes use the term “tender offer”!
  2. Non-tender offers – Something either is or isn’t a tender offer: there is no “undistributed middle”.  Many statutes use the phrase “control share acquisition”, which includes tender offers but is broader than tender offers.  R.C. Chapter 1701 and 1704 both apply to control share acquisitions whether or not they are tender offers.  R.C. Chapter 1707 is limited in application to tender offers.


Subscriptions versus options


A true option gives the holder the right, but not the duty, to buy something.  So if you buy the option but then discover it’s a bad deal, you can walk away without paying anything except what you paid for the option.  If it’s a subscription, you must look at the common law and statutes.  Generally speaking, in most states, these are the rules:


  1. A subscription must be in writing in order to be enforceable.  (This is also true of an option under Article VIII of the Uniform Commercial Code.)
  2. In nearly all states, the company need not give consideration to the subscriber in order for it to be a valid contract.  Many statutes expressly so provide, and when there is no statute on it and there are two or more subscribers subscribing on the strength of each other’s subscription, then you know from Cordozo that the consideration is supplied by the mutuality of the two or more subscribers.  The statute will usually say that the board may call the subscription at any time consistent with the agreement.  The statute will usually further provide that the board of directors may release one or more subscribers.  But there are two exceptions:
    1. It’s not at all clear that they can do that without liability to the corporation in bankruptcy.
    2. Under the law of contracts, if you release one subscriber, you may well release all unless the others consent to the release because, in a number of states, if there is joint liability in contract and you release one of the obligees, the others are automatically released unless they have consented.
  3. Subscriptions to stocks or bonds are themselves securities for the purposes of the federal securities laws.  You must find an exemption.  But here in Ohio under R.C. 1707.02 and .03, there is an exception for certain subscriptions, but that will do you no good because you will still have to find a federal exemption.
  4. If there is a federal bankruptcy filing, nobody knows what happens!  A literal reading of the Federal Bankruptcy Code would indicate that the trustee in bankruptcy cannot call the subscription.  Shipman isn’t sure if that’s absolutely accurate.


Can the board of directors call the subscriptions even if the company is nearly insolvent?  It varies a lot by state.  The bottom line here is that the subscriber is usually legally obligated to purchase.  That’s the difference between the two!


Par value


Historically, if you go back 130 years, par value tended to represent the value of the stock.  If people thought the common shares were worth $100 per share, then par value would be $100.  That is no longer true except with respect to preferred stock.  If you’re selling preferred stock for $100, it will almost invariably be put at $100 par.  Also, in a lot of foreign countries, the old understanding is still in place.  In modern usage, you can use no par stock, but you should never use it.  Also, don’t ever use high par stock except for preferred stock.  You should use $0.01 par stock for common stock, even if you’re selling for $40 per share.  Sometimes they’ll even make it $0.0001!  They do that because of franchise taxes, stock issuance taxes and transfer taxes.  What does this have to do with par value?  In Ohio and many other states, if you use no par stock, the franchise tax is computed on the fair market value of your assets.  But if you use par value, it’s computed on the par value of your stock and therefore if you’ve used $0.01 par or $0.0001 par, the franchise tax will be a lot lower.  Neither Ohio or Delaware have stock issuance or transfer taxes.  Under those statutes, you’ll end up getting screwed if you use no par or high par value.


So why do we still have par value?  In Revised Model Business Corporation Act states, you can choose to do without it!  In fact, very few people take advantage of this.  They use $0.01 par except for preferred stock because loan agreements, note agreements, and trust indentures, some going back 70-80 years are tied to par value.  Also, occasionally, par value is very useful in that a high par value restricts the board of directors on dividends because, in a nutshell, under the Ohio dividend statutes, R.C. 1701.27-.37, the board of directors can declare dividends only out of surplus.  Surplus, generally speaking, is the excess of consideration for stock over par value (that’s capital surplus) and accumulated earnings (that’s earned surplus).  If the par is high, the board of directors, acting alone, is restricted on dividends.


Consider this hypothetical: a corporation is organized by Promoter, who takes 600 shares, with his friends taking 400 shares.  Each share has a par value of $1,000 per share and each investor pays $1,000 per share in cash.  The company thinks it’s going to need $1,000,000.  After they set up the company, they see that they need only $500,000.  The board of directors consists of Promoter and two subordinates at the company.  Can the company return the extra $500,000 as dividends by themselves?  No, they can’t, because there’s no surplus!  There is no earned surplus because the company has just been set up, and there’s no capital surplus because $1,000 par has been issued.


How could they pay a dividend?  They’ll have to go to the shareholders under R.C. 1701.69-.72 for a charter amendment (let’s assume the amendment is to reduce the par value from $1,000 per share to $1 per share).  If they do that, under R.C. 1701.27-.37 and .69-.72, there will be created $999,000 in capital surplus and the dividend can then be paid.  Promoter and his friends on the board will have to call a shareholders’ meeting and get 67 votes to go with Promoter’s 600 votes to amend the charter.  On these facts, he could probably do it.  But if Paul and his buddies declared the dividends without doing this, under R.C. 1701.95, they are personally liable to the corporation jointly and severally for $500,000!


Hanewald v. Bryan’s Inc. – If an investor buys $100 par stock for $1 per share and buys 1,000 shares, the corporation can come back to that investor and recover $99,000.  There is no way out of it!  The statute expressly says that the corporation can do that!  The incorporation includes a trustee in bankruptcy or a state court receiver, and if things go belly up, they’ll write another check for $99,000.  This is why investors want an opinion from their attorney and the attorney for the company that the stock is fully paid and non-assessable.  This case says that if you have such a statute, the creditors themselves can directly go after the hapless investor who thinks he’s got a bargain.


The Ohio statute provides that if the directors, in good faith, value assets, then the remedy may be cut off.  If our investor has Blackacre, which has no liens attached and he says it’s worth $100,000 and the directors, in good faith, value it at $100,000, then he will not be liable.  But caution: if he knows it’s not worth $100,000, there may be fraud.  In modern times on a transaction that big, the board would often get an independent appraisal that would show the watered stock.  The board will get statements certified by CPAs who will insist upon an independent appraisal.  The securities laws can easily be violated by watered stock, inflated assets and the like.  Remember that these are questions the attorney for the company must go over before he issues an opinion that the stock is duly and validly issued and is non-assessable.


Suppose your stock has $5 par value to it, but it’s now trading for $1 and you have to have $500,000 in order to survive.  Can you sell 500,000 shares to an investor for $1 and avoid these rules?  An old U.S. Supreme Court case indicates that the answer is maybe yes.  Suppose you have an option to buy stock.  You will always include in it an anti-dilution provision.  In other words, if there is a 100% stock dividend, you’ll up the amount of shares you can purchase by doubling and halve the number of shares you purchase by one-half.  Suppose you have an option to buy $5 par preferred stock for $5 and there is a 100% stock dividend.  That means you can purchase double the amount of shares for $2.50 per share.  But the stock still has a $5 par value, and you’re screwed!  As a part of the anti-dilution clause, there is a provision that says that you won’t take action that will push the fair market value below par value.


The Ohio rule regarding the disregard of the corporate fiction


If you go back 25 years, the Ohio Supreme Court cases had all held that you need fraud or sham to disregard the corporate fiction.  Since then, a Sixth Circuit case and an Ohio Supreme Court case that expanded the grounds somewhat for disregarding the corporate fiction.  After that, you see a bunch of Ohio Court of Appeals opinions.  These opinions differ, some saying that Ohio law is now pretty much like the law of any other jurisdiction, others saying that the two big cases did not open things up that broadly.  A third group of cases have given an extensive definition to fraud and have included constructive and equitable fraud along with “hardcore” legal fraud.  So in Ohio you’ll have to read a bunch of cases and carefully qualify the extent of the opinions you give to clients because no one is completely sure where Ohio law is right now.


Preemptive rights in Ohio


Courts used to say that there were preemptive rights in Ohio unless the charter provided otherwise.  A few years ago, the statute was amended as to newly formed corporations.  Now we have an “opt-in” situation rather than an “opt-out” situation.  You don’t have statutory preemptive rights unless the charter so provides.  Delaware has always been an opt-in state in modern times.


Generally, if new stock in a corporation is issued, it must be offered to all shareholders on a proportional basis.  But there are common law exceptions.  The big case in Ohio on preemptive rights is Barsan v. Pioneer.  It follows the Massachusetts authority.  This case made a point about waiver.  Shareholder by shareholder, there can be a waiver.  If all shareholders waive, then there is no problem.  The waiver can be formal (in writing), or it can be informal (by conduct).  That’s one common law exception.  Next up comes non-cash property.  When stock is issued for non-cash property, meaning a corporation wants to issue common stock to a non-shareholder in exchange for some property owned by that non-shareholder.  Shipman doesn’t know how this exception is consistent with the rationale for preemptive rights!  When a company makes a non-only purchase of another company, that’s non-cash property and will also fit within the common law exceptions.  Preemptive rights are a sticky issue!


Generally, when public companies go public in an opt-out state, they will often amend their articles to deny preemptive rights.  That can be done under Ohio law, and no appraisal right is involved.  Considering the problems posed by preemptive rights, few Ohio lawyers organizing a new company in the old days opted out in the original charter.  Shipman finds this interesting.  He thinks this will change with the “opt-in” situation.  If you have preemptive rights you can have problems!


In Ohio, preemptive rights are dealt with in R.C. 1701.14-.20.  In older Ohio companies, there generally won’t be an opt-out, and the change won’t apply to a company established before the change.  The common law exceptions are actually built into R.C. 1701.14 along with some other exceptions.  This section says that if you’re subject to preemptive rights, you can, without a shareholder’s meeting and without a charter amendment, “bless” the transaction if you get shareholders owning two-thirds or more of the stock to say that preemptive rights will not apply to that transaction.  Note that if you do that, you must immediately notify all shareholders of what you’ve done.  Also, this provision exists “on top of” the common law waiver provision.  Preemptive rights can exist by contract among the shareholders.  There are a number of cases where, when you deal you a close corporation, you find that there is a shareholders’ voting agreement (per R.C. 1701.591) that has contractual preemptive rights provisions in it.  There are situations where the shareholders want the proportionate ownership kept.


This affects lawyers in a big way!  Lawyers are often called upon to issue the opinion that stock is “duly and validly authorized and issued, fully paid and non-assessable”.  Does this opinion include “no violation of anybody’s preemptive rights”?  There’s disagreement on this point!  Careful lawyers for purchasers request a second paragraph that says: “Issuance of the stock does not contravene anybody’s preemptive rights under the charter, the statute, or any contract or agreement”.


Here’s an example: in the first merger, all the shareholders voted yes, but the lawyer forgot to amend the articles to take out preemptive rights.  Down the road, under new management, they didn’t realize that preemptive rights were still there.  They sued the lawyer in the first transaction, and Shipman argues that the lawyer’s opinion was correct.


Hyman v. Velsicol Corp. – This is an old case with a lot of lessons for us.  There was an Illinois corporation, two capitalists, and one sweat equity.  It was a start up, and everyone put in an equal amount of cash.  With start-ups, you’ll need more money down the road!  You’ll seldom make it on the first infusion of money.  The company needed more money.  The two capitalists owned two-thirds of the stock and were two of the three directors.  The board of directors authorized the corporation to sell a huge number of new shares for a huge amount of money.  The company was under preemptive rights.  Each shareholder was notified of his right to subscribe to a third of the offering at the stipulated price.  The two capitalists, who planned the issue, had the money for their one-third.  But sweat equity didn’t have the money!


So sweat equity sues under the theory of fiduciary duties.  The two capitalists were technically complying with preemptive rights.  If sweat equity could have afforded it he could have exercised his right to buy one-third of the new shares.  Preemptive rights doesn’t displace fiduciary duties!  In a close corporation, the officers, directors, and controlling shareholders owe strong fiduciary duties to each other.  In Ohio, Crosby v. Beam codifies that doctrine.  So sweat equity asks for an injunction stopping the issue because he has no money and after the issue he’ll only own a few percent of the enterprise.  We’re told that the injunction was denied, but we don’t get all the facts.  Sweat equity came into court with unclean hands!  Those who seek equity must do equity!  Sweat equity had gone to work for a competitor and the Illinois court held that under the unclean hands doctrine there was no relief on the fiduciary duty theory.  The capitalists “kissed the books” correctly on the preemptive rights doctrine!


What other lessons can we draw from this case?  If you represent a sweat equity type and the startup is in corporate form, sweat equity will want a clause saying: “If new money is needed for capitalist, they will advance it for preferred stock that is not participating or voting, or else they will advance it as debt.”  In a high-tech startup, sweat equity wants to be a major owner when the enterprise goes public.  This will entail heavy bargaining, but keep in mind what sweat equity’s point is.  If the startup is in a limited liability company, the problem is going to be there, but it will be much less acute.  The contractual provisions protecting sweat equity while dealing with the capitalists can be dealt with a lot more easily as an LLC with the Internal Revenue Code.  LLCs are very good for startup ventures in that Sub K is simply more flexible than Sub C or Sub S.


Common law rule regarding indemnification without a contract


An agent can get indemnification from the principal if four conditions are met: (1) The agent is not negligent.  (2) There is no crime.  (3) The agent acts within the scope of his employment.  (4) The agent violates no implied or express work rule.


The Uniform Partnership Act of 1914 codifies this rule at § 18.  The leading case on the rule is a Pennsylvania trial court case from the 1800s called D’Arcy, in which a Pennsylvania principal sent his agent down to Haiti, and through no fault of the agent, he got thrown in jail and he had to litigate.  The agent finally got out of jail and back to Pennsylvania, where he sued the principal for indemnification for the litigation expenses.  It was held that he made out the case and would be entitled to indemnification even though he had no contract for indemnification with the principal.


That’s the rule as of 1930.  Then, in McCollum, a New York trial court case from about 1940 shocked the corporate world!  McCollum was an executive of a company that’s now part of ExxonMobil.  In the 1930’s, a number of the oil companies engaged in fixing the price of oil.  There were large downward pressures on oil and many of the company did “naughty things” in violation of the Sherman Antitrust Act.  The government brought a lot of cases and got a lot of convictions.  But when they brought the criminal case against McCollum, he paid the expenses out of his own pocket and got an acquittal.  Then he asked his employer for indemnification, but the employer refused and he sued based on the common law principle of agency law.  This case added a fifth requirement to those on the board: McCollum didn’t show any benefit to the employer, and therefore he couldn’t get indemnified!  Some states refused to follow McCollum.  They followed the “classic statement”.


After World War II, statutes came about like R.C. 1701.13(E).  In Delaware, it’s § 144.  In Ohio, if you’re sued in your corporate capacity either by or on behalf of the corporation or by a third party and you prevail on the merits or otherwise (such as based on statute of limitations), then you are absolutely entitled to indemnification from the company.  This doesn’t mean you don’t have to have insurance.  Insurance and indemnification don’t completely overlap.  Your rights under indemnification are no better than the solvency of the corporation.  But if you have an insurance policy that covers you, then the insolvency of the company you work for doesn’t affect your insurance coverage, assuming, of course, that your insurance company is solvent.  Therefore, your R.C. 1701.13(E)(3) right against a corporation might not be worth much.


R.C. 1701.13(E)(5)(b) says that if you’re sued in your corporate capacity, the board of directors may advance your attorney’s fees.  R.C. 1701.13(E)(1) talks about suits by or on behalf of the company, while R.C. 1701.13(E)(2) talks about third party suits including shareholder actions, creditor actions, actions under the securities laws, and actions under criminal provisions.  Both statutes say that other certain circumstances, the board of directors may indemnify you.  (E)(1) and (E)(2) do not have any “must” language in them.  But here’s the new kid on the block from the 1980’s: R.C. 1701.13(E)(5)(a), which also deals with attorney’s fees.  This is a “must” provision.  If you’re sued in your corporate capacity and you make a demand on the company, the company must pay your reasonable attorney’s fees monthly subject to one big condition: you must sign a written undertaking to reasonably cooperate, and if you are found to have been reckless in discharging your duties, you will have to reimburse the corporation for such attorney’s fees advanced.


In the 1980’s, we also got R.C. 1701.59(D) and 1701.59(F).  (D) provides that in an action by or on behalf of the corporation against you, if you were acting in your corporate capacity, no money damages will be awarded unless you are found to have been reckless.  (D) applies only to directors, and the same is true of .13(E)(5)(a), except Shipman thinks that the latter applies to a director acting as an officer and it may turn out that .59(D) also does.  R.C. 1701.59(F) makes it clear that (D) does not apply to a suit against a director in his capacity as a controlling shareholder.  We’ll get back to the duties of controlling shareholders later.  The infamous Delaware case of Smith v. Van Gorkum brought about these statutes.  The Delaware statute differs somewhat from the Ohio provisions.  For the Delaware provisions to apply, the shareholders must vote it in, but in Ohio it’s just the opposite: they apply unless the shareholders vote it out.


Merritt-Chapman & Scott Corp. v. Wolfson – Wolfson was a “corporate bad boy” of the 1960’s and 1970’s.  He was the director of a public company and the federal government claimed that he violated the securities laws, so they brought a criminal action against him in two or three trials.  He won on some of the counts, but the government won on some other counts.  Other charges were dropped as the case went along.  The question is how the Delaware version of (E)(3) worked.  The decision is very pro-director.  The court held that: (1) You can prevail in different ways: either by acquittal or by a second trial where the government drops a charge.  (2) It is not all-or-nothing, that is, Wolfson should allocate his legal expenses among the various counts and as to the allocated expenses, to those counts where he prevailed, he is entitled to indemnification.


The Justice Department, in its sentencing guidelines, wants corporations not to indemnify, and the pressure is on corporations to cut loose accused executives and stomp on them.


Director and officer’s liability insurance is important.  If you’re advising a client, don’t go on a board without it.  Look at the coverage and exclusion clauses of the insurance policy.  Coverage clauses are usually construed broadly to protect the insured, and exclusion clauses are generally construed narrowly against the insurer.  What are some of the big provisions?  In the exclusion clauses, you’ll find exclusions for dishonesty, fraud, criminal conduct, and intentionality.  Just what is intentionality?  In Delaware § 102, we’re told that these new clauses can apply only to actions under the fiduciary duty of care and not under the fiduciary duty of loyalty.  Ohio R.C. 1701.59(D) and .13(E)(5)(a) don’t make that distinction.  The courts have held that if the action is a duty of loyalty action against a director or officer, and all that’s shown at trial is inadvertent breach of the duty of loyalty, Delaware § 102 will apply.  Shipman thinks that the same rule applies here.


What’s another big exclusion?  One is Rule 10(b)(5) under the Securities Exchange Act of 1934.  ERISA is also an exclusion.  The biggest headache is a clause that says: “If the director or officer received some corporate benefit that other shareholders did not receive in proportion to their stock holding, then the policy will not apply.


This gets us into the way policies have been drafted for the last 35 years.  In the old days, the policies were written as occurrence policies.  If you bought a policy for the calendar year 2004 but you didn’t get sued until 2010 under a discovery rule, that occurrence policy would cover you.  But the problem with this type of policy from the insurance companies’ standpoint is that it has a long tail; the insurance companies can’t figure out how much they’re on the hook for.  So about thirty years ago, the insurance companies switched to claims made policies.  Today, your D & O policy will cover you for claims made in 2004 with two additions, one going backward and one going forward: (1) if you notify the insurer in 2004 of something that may give rise to a claim and the claim is made later, then the 2004 policy will cover you.  (2) If you’re buying a policy from the company for the first time in 2004, things that you fully disclose in detail to them that happened earlier can, for an additional premium, be covered.


When a professional retires, they purchase tail coverage.  Tail coverage will cover things that come up in the future.  The premium will usually be one and one half to three times your usual annual premium.  The application for tail coverage or for looking backwards is going to have a very complete disclosure provision in it.  The insured and the insurance company must deal with each other in utmost good faith.


McCullough v. Fidelity & Deposit Co. – This case dealt with a bank that had generally informed its insurance company that there had been a bank examination.  If the insurance company had read the full examiner’s report, they would have seen that a bunch of claims were about to break loose.  The court held that in order for the “forward looking” out to apply, you must be specific and detailed in your reporting to the insurance company.  Shipman says that McCullough should have hired a lawyer.


Here’s one more situation where you can get your attorneys’ fees.  The outside legal counsel for a corporation is asked to review a proposed merger in detail.  He does so using reasonable care and he gives a written opinion to the directors and officers that, in his opinion, neither federal nor state antitrust statutes are violated by the transaction.  Three years later, the Justice Department sues the corporation and the officers and directors claiming that it does violate the antitrust laws.  The outside lawyer in that situation will recommend to the board that he enter an appearance for both the corporation and the directors and officers because he advised all of them that in his opinion he thought it was legal.  He would say that because he advised everyone that way, there is no conflict of interest.  What he is trying to fight is the government strategy, which is to divide and conquer.  It is perfectly proper for the outside counsel to make an appearance for everyone and handle the litigation since they were proceeding on his authority.  The board of directors will go along with this and allow it.  It’s not literally covered by .13, but it is a form of indemnification of attorneys’ fees that happens every day.


Connected with that and relevant to today’s discussion is the defense of good faith reliance on legal counsel.  Here are the leading authorities on this: Maness v. Myers from the U.S. Supreme Court, which deals with the lawyer’s side.  The client was selling “girlie” magazines.  But were they hardcore pornography or not?  In a civil proceeding, the government asked for the production of the magazine, and the lawyer advised him against it.  There was a court hearing, and the judge asked the client why he didn’t submit, and he said that his lawyer gave him a legal opinion that he didn’t have to.  The judge issued a contempt order for the lawyer, and the U.S. Supreme Court held that insofar as the lawyer is concerned, if you give advice to a client in good faith that precludes recklessness, then a court has no jurisdiction to enter a contempt order against you under the Sixth Amendment.


Here are a couple of journal articles.  One article in the Vanderbilt Law Review by Hawes said that when there is reasonable reliance on counsel by a client, it proves good faith and reasonable care by the client.  But there are causes of action where you can lose even if you’re not negligent and you’re in good faith.  But the role of the lawyer in this area in giving opinions is crucial.  Under Delaware § 102, if there is an inadvertent breach of the duty of loyalty, you can get protection.  If people have relied on reasonable advice of counsel, then they’re okay too.  But sometimes clients hold back key facts from their lawyer.  Also, the lawyer’s opinion will often tell them that something is legal if you do these four things, but then in the real world, clients will thumb their nose at one of the things and only do three things.  The things may be very onerous!  But the role of lawyers is crucial.  So is the role of CPAs.  If you have a truly independent CPA and you disclose everything to her and she comes back with what looks like a reasonable statement, and you have fully disclosed and her credentials and reputation are good, then they’ll have trouble getting at you.  This will be an issue in the Enron case.


Rule 504 or 506 can be used in preference to § 4(2).


Preemptive rights


Katzowitz v. Sidler – This case was decided on fiduciary duty.




We covered the agency common law doctrines whereby under agency law the agent is sometimes entitled to indemnification from the principal without getting any deeper.  In theory, this is a doctrine separate from exoneration and R.C. 1701.59(D) is a pure exoneration statute.  R.C. 1701.13(E)(5)(a) is an indemnification statute.  But there are times when a statute is both an exoneration and an indemnification statute.  If, for example, a trust agreement provides that in any suit against the trustee by or on behalf of the trust or its beneficiaries, the trustee will be held harmless by the assets of the trust then the agreement is both indemnification and exoneration.  But that wouldn’t be legal under trust law.  The most that a provision in a trust agreement can exonerate the trustee for in suits by beneficiaries is gross negligence.  Trust law is more demanding than corporate law and more demanding than general indemnification law.


It is still fairly standard in a tort case if there are two defendants and one is negligent while another has committed an intentional tort like fraud, it is fairly widespread that the judgment that the court will enter in that case is joint and several liability on the part of both defendants to the plaintiff, but the defendant that is negligent is entitled to indemnification from the defendant who committed the intentional tort.  What about comparative negligence?  Case after case has held that comparative negligence statutes by themselves do not preclude this result.  A Louisiana court has held that you cannot apply comparative negligence to intentionality.  But New York cases in the past fifteen years have held that if even if due care had been used, the intentional actor was smart enough that he would have committed the tort anyway.  Out west and in the south, you’ll find a number of states that have eliminated joint and several liability by statute.  They call for percentage allocation rather than joint and several liability.  Shipman has his doubts whether these statutes would apply when one person is intentional and one is negligent.  He thinks that the intentional actor will be 100% liable.  But indemnification comes up a lot in torts.


Moral hazard and indemnification by express contract


A contract of indemnity is subject to the rule that to the extent it purports to cover recklessness or intentionality it is invalid because if, for example, Al Capone could have gotten indemnity for the St. Valentine’s Day Massacre, there would have been twenty massacres!  In most states, insurance can cover recklessness but it can’t cover intentionality.  In Ohio within the past twenty years, we have had two opinions in the cases of Worth v. Aetna and Worth v. Huntington Bank.  What was involved was an indemnity contract whereby the contract provision called for one party to bear the other party’s attorney’s fees.  This is the place to start your research in Ohio because they review the cases of the last 40 years.  In some areas, in Ohio, you can’t even indemnify for negligence.  Generally, though, provision for attorney’s fees is not valid.  The court held a special situation that involved a contract for attorney’s fees.


Here’s an Agent Orange case: soldiers couldn’t sue the government, so they tried to sue government contractors.  Scalia established a government contractor defense.  If a contractor warns the government that the specifications will produce a defective contract, then the government contractor has a complete defense.  The company that was one of the manufacturers of Agent Orange sued because they had settled with veterans who had been badly injured.  The Court of Claims decision was appealed to the U.S. Supreme Court.  Rehnquist denied relief on two grounds: (1) the government contractor defense had not be properly used by the manufacturer, and (2) the Courts of Claims, AKA the United States Claims Court, has no equity jurisdiction and no jurisdiction in restitution.


In the Globus case, involving the first company in the country trying to apply computers to legal research, there had been a public offering of the company’s stock, and the underwriter (broker-dealer firm) buying it from the company and reselling it had extracted an indemnification agreement from the issuer.  That agreement was carefully drafted and it excluded reckless and intentional action by the underwriter.  You can bet that the underwriter wanted an opinion from the lawyer for the company that the contract was valid, and the lawyer for the company knew that on common law grounds, it would not be valid if it covered reckless or intentional misconduct.  The underwriter got sued and had to pay a judgment because the offering circular to the public was misleading.  The underwriter then sued the issuer on the indemnification contract under state law.  But it excluded reckless or intentional conduct.  It was proven at trial that the underwriter knew of the deficiency in the offering circular!  So the opinion should have been really short.  Instead, the court held in Globus I that they would make it a federal question!  The federal securities laws themselves, on top of state law, limit indemnification for securities misdeeds.  They remanded to the district court for a remedy, the case came back up, and they held in Globus II that under federal law, no indemnification, but they would allow 50-50 contribution.  Most lawyers in their opinions will now put in a paragraph disclaiming any opinion on indemnification where federal securities laws are involved.


When you make a public offering, you must put in the prospectus an agreement with the SEC that the company will not pay off unless a court first determines otherwise by declaratory judgment.  When prosecutors go after a company they try to force them not to indemnify their corporate executives.  That is, they would try to force an Ohio company not to pay out under R.C. 1701.13(E)(5)(a).


In a Minnesota Supreme Court case, Tomash, a director of a closed-end investment company heavily regulated under the Investment Company Act of 1940 was engaged in front-running.  He had inside information on what the company was going to buy, and so he went and bought that same stuff before the company did, and he also sold before the company did.  That violates § 17 of the Investment Company Act of 1940, and it’s a serious conflict of interest.  You can only engage in this activity if the commission blesses it in advance.  The SEC sued him for an injunction, and they got it.  But the equities aren’t all on one side.  Before he did this, he went to the inside lawyer for the company and disclosed what he wanted to do.  The lawyer said that it was okay!  The director then applied, under Minnesota law, to the company for indemnification.  The state had a statute like R.C. 1701.13(E).  The board of directors refused under .13(E)(1) and (2).  He goes into court to force the board to pay it.  The opinion is mostly a reading of the statute, which says that the board may indemnify in (E)(1) and (2).  Only (E)(3) has a must.  However, at the end of the opinion, they say: “By the way…the indemnification statute says that they will indemnify you qua director, and when the guy engaged in front-running, he changed personality and became a non-corporate individual!  In that incarnation, you’re not entitled to indemnification!”


There is a New Mexico case that follows on New Mexico’s version of (E)(3), where a big public utility started a suit against a director, who counterclaimed and moved under FRCP Rule 65 for a TRO saying that they can’t continue their part of the suit unless they agree to pay his attorneys’ fees.  The court held that (E)(3) means exactly what it says.  It was clear there that the director was acting in his corporate capacity.  The courts go all different ways in this area.


In Toledo, a big public company asked a guy to join their board.  Unbeknownst to the company, Mr. X was the 100% shareholder of a closely held manufacturing company.  Under the SEC proxy rules, he should have disclosed that to the company because it should go into the proxy statement.  The public company entered into a lot of business with the closely held company.  Then they found out and when to the United States Attorney’s office, asking them to lock up Mr. X.  Mr. X paid the attorneys’ fees out of his own pocket and got an acquittal.  Then he asked for $1.5 million in attorneys’ fees under (E)(3).  The company asserted Tomash, but the matter went to arbitration.  The arbitrator didn’t buy the Tomash argument and entered a judgment of $1.5 million in Mr. X’s favor.  Remember that Tomash is there, but it will sometimes be overlooked because it is quite subtle.  It’s a “first cousin” of the insurance policies exclusion for the director getting a benefit that the other shareholders don’t get in proportion to their stock holdings.


If you’re representing an executive, your remedy is a counterclaim for attorneys’ fees, and you move under Rule 65 for a preliminary and permanent injunction forcing the company to pay your attorneys’ fees as the case progresses.  Merely putting that in your answer is not enough.  You must file a motion for an immediate hearing!  Go to the clerk or judge and ask for an early hearing on the issue.


Here’s a hypothetical from prior exams: a woman is a director of a company and she is charged with sexual harassment.  She is the president (the #2 officer) and the #1 officer, the CEO, calls the outside counsel and asks the counsel to investigate.  Can the regular outside counsel do this?  Yes, assuming you have not advised the president on this issue.  You must give the president a “Miranda” warning that you’re only representing the company and not the woman.  But what if you represent the woman?  You must file the written demand for attorneys’ fees.  But will you get it?  There are two issues and they’re close: (1) is the internal corporate investigation a “proceeding”?  Shipman thinks so.  (2) Does the CEO have the power, without going to the board, to order the outside law firm to do this?  Sure, no problem.  (3) Does this fit within (E)(5)(a)?  Shipman thinks so, but there are equal employment overtones and if you’re the outside law firm conducting the investigation, you have a duty to conduct a fair proceeding.


The hypothetical


But I didn’t have a chance to get the hypothetical down.


How do we approach a problem?  Rule things out.  First consider the ultra vires/1701.13 problem.  The corporate charter must have an “all lawful business” clause.  If there is an ultra vires problem, you go to 1701.69-.72.  There must be a charter amendment and it will likely create appraisal rights.  What about 1701.14 preemptive rights?  Under .14 and the common law, if you’re issuing stock for non-cash property, there is an exception.  What about fiduciary duties under 1701.59?  Due diligence must be done concerning a transaction.  You must get financial statements.  Rule 10b-5 applies to a securities offering.  The U.S. Supreme Court, in Gustafson in the 1980’s, held that 12(a)(2) doesn’t apply to unregistered private offerings.  § 14(e) deals with tender offers for any security, public or private, but it must be a tender offer.  The big worries of the guy are going to be §§ 1707.38-.45 and .29.  The criminal mens rea test in Ohio is ordinary negligence.  Plus .38-.45 state a negligence test and say that if the company is liable, the directors are liable unless they were non-negligent.  If there is no directors’ and officers’ insurance policy, the guy should resign.  Otherwise, what’s in it for the guy?


The instructions for the exam


It will be three hours long and it will where the registrar says it is.  There are two key points.  We’ll be an associate at a law firm.  It will have an office in Ohio and also a community property state Z that’s not Texas, Louisiana, or Arizona or California.  It also has an office in common law state X, not Ohio.  We work for a senior partner at the firm who is a trial lawyer.  He’s admitted in all three jurisdictions.  People come to him for all kinds of reasons.  We have to produce a preliminary memo to him.  As the case progresses, this will be fleshed out.  But the partner usually has a conference with the client and he wants to know roughly what is involved.  We’re told it’s okay to be concise, but don’t be brief.  Raise the issues and state the arguments, pro and con.  Look for ambiguities in the facts.  Look for courses of action as well as causes of action.  What should people do?  Allocate your time brutally.  Make sure you don’t leave any questions blank!  Most of Shipman’s questions will be set in Ohio and will involve Ohio law.


December 1996 Exam Question One


Unless otherwise stated, we can assume that all conflicts of interest have been cleared.  We can also assume that all clients are paying by the hour.  Here we have BCD, Inc. formed in 1985 by Mr. Smith, who purchased 1,000,000 shares for $.01 each at par.  His sister, as an accommodation, purchased 50,000 shares at the same price.  The sister is a physician and has a lot of money.  None of the other directors has much wealth.  Generally Accepted Accounting Principles are applied.  In auditing the statements of a company, the auditors proceed under GAAS: Generally Accepted Auditing Standards.


Sarbanes-Oxley caused an accounting oversight board to be created.  Its relationship to the FASB has yet to be determined.  Its relationship to accounting standards is going to be quite heavy.  The money for FASB and the Accounting Oversight Board comes from fees charged to public companies.  The AOB is subject to oversight by the SEC.


CPAs are licensed by individual states.  There’s a standard nationwide exam, so it’s pretty easy to get admitted in different states as long as you pay the fees.  The CPA owes its first duty to public investors and creditors.  Then they owe a duty to the company.  The independent CPA firm is paid to “tattle” on the person that pays it!  It’s like being required to pay your spouse’s lover.


There is some chance that the insurance company will say that the coverage doesn’t fly, and the insurance company will probably win.  So there’s probably no coverage!  She wants to know what her exposure is.  There will be big legal fees.


First we’ll want to see whether she had no knowledge or reason to know of the cooked books.  There are no criminal worries if this is true.  There could be a trustee in bankruptcy action, but there probably isn’t recklessness on the part of our client.  Her medical license should be dealt with by a lawyer in the firm who deals with the medical board.  We must show that she had no knowledge.  So hopefully her medical license will not be affected.  What about taxes?  If she received money for being a director, then her legal fees and what she has to pay in settlement will be tax deductible.  She has a good income as a physician.  So talk to a tax lawyer.  This may all be deductible as she pays it.  She might ask whether she should transfer assets to her husband.  No, because that would be a fraudulent conveyance and it would also look bad in the litigation.  Hopefully, she has a family trust for the benefit of her husband and children with spendthrift clauses.


In practice, you’ll find that the independent investment advisor and the estate and tax lawyers are always trying to get people to set up trusts with spendthrift clauses.  But it’s hard to get people to do that.  There’s a substantial gift tax payable and they don’t want to part with control of the money.


If we can show that she is “pure as the driven snow”, then we’re in good shape because it’s hard to prove scienter against someone who is trying to do the right thing.  This is for the purposes of Rule 10b-5.  In addition, the 1995 Federal Act puts a number of procedural inhibitions upon plaintiffs who want to file.  You can get around them with a good case, like the Citigroup case, where the plaintiff’s lawyer knew just how to get around it.  § 12(a)(2) is a strict privity section, and she wasn’t in strict privity with any of the victims.  But we must double check that she hasn’t pulled a “Martha” in the last couple of weeks.  She says the first news she had was yesterday, but we must make sure she wasn’t selling any stock before that.


What about § 11?  The first big deal is that this statute is negligence-based.  If a plaintiff’s lawyer has a shot at good money under § 11, they’ll go under § 11.  But .38 to .43 of the Ohio statute is very close.  It’s also negligence-based.  § 11 does not apply if there is no registered public offering.  In that sense, it’s different from R.C. § 1701.38 to .41 which apply to public and non-public, registered and non-registered transactions.  There is a semblance of a privity requirement.  You must prove that the shares you bought came out of the registered public offering.  You don’t have to be the first purchaser.  You could be the second, third, fourth or fifth.  That requirement doesn’t help us in the question because all the shares in the public market came out of the registered public offering.  You should always check the statute of limitations; in many cases people wait too long to sue.  In this case, we can expect that the suits will be filed within the next few days or weeks, so there will be no statute of limitations defense.


If the defendant can prove no legal cause or causation-in-fact or partial no causation-in-fact, then that is a defense.  There are two Franklin County cases in the 1990’s on this.  Early in the 1990’s the Federal Reserve Board kept interest rates fairly low, which encourages homebuilding.  Interest rates have been fairly low for the last four years and we’ve had a homebuilding boom.  Two separate local homebuilding companies went public during that period.  Unfortunately, about nine months after they went public, the Fed greatly increased interest rates.  Homebuilding temporarily went to hell.  There were § 11 suits against the companies.  The defendants made out either a partial or total § 11(e) defense.


There were bogus accounts receivable and the nature of those accounts was not disclosed in the prospectus, obviously.  The company has virtually no defense under § 11 except the statute of limitations and § 11(e).  No plaintiff will collect much of anything from the companies.


Let’s divide the prospectus into the narratives and the certified financials.  As to the narratives, where the directors are not relying on experts, the director must prove for a defense: (1) she made a reasonable investigation, and (2) after such reasonable investigation she reasonably believed the prospectus narrative material to be true.  As to the expert material, the test is different.  There is no requirement of reasonable investigation as to the certified financials.  The test is simple: did the director reasonably believe the certified financials to be true?  In the real world, a lot of material crosses over between the two categories.  It’s not absolutely clear whether she made a reasonable investigation.


What about another possible defense for our client?  Legislation from the 1990’s provides under § 11 that there is no joint and several liability; it is several only.  That means that if we can slot her into that, and the jury finds that of the 100% of fault involved she contributed only 3%, then we would simply multiply the liability by the percent and that would be her liability.  It would still be a lot of money, but note that if she doesn’t qualify for this, it’s joint and several liability.


The Securities Act of 1933 was based in part upon the English Companies Act and in part on state “Blue Sky” law in the United States.  In the English Companies Act, a director can rely in good faith on officers and others.  That is the law in Ohio at § 1701.59.  It’s also the law in Delaware at § 141-144.  It’s a good faith reliance rule.  As long as you’re not reckless or worse and your heart is pure, you can rely upon what officers tell you.  This looks like an accounting matter, though.  The auditors should have gone out and “kicked the tires” on some of these post office addresses.  That is, they should have traced it to the actual office or factory.  Lawyers who are working on a registration statement and who are careful always do that.  The leading case in the area is Escott, and it says that you do have to kick the tires.  As to important written documents, you must get the actual material and read it.


Probably the plaintiffs’ lawyers are looking for big money from the accounting firm.  They will want to settle with our client early.  You like to settle out with peripheral defendants early for modest amounts because it’s very expensive to finance a class action.  Under R.C. 1701.38, Shipman thinks her liability is about the same.  What about the liability of the accounting firm?  That’s under § 11 and also under the Rest.2d of Torts § 552, which is negligence-based and would provide a similar result to the federal result.  The seminal case in Ohio is Heddon View from the 1970’s.  There are later cases including two in the 1990’s that were decided the same day.  The cases hold that comparative negligence will apply if the client was negligence and caused a tort that damaged himself, you “chop off” that 30-40%.  Those cases are especially important because Shipman thinks that they apply to lawyers.  When a lawyer is sued by a client, you’ll want to throw in the defense of comparative negligence.  Is the Restatement § 552 applicable to lawyers?  Not in Ohio.  The authority for that comes from Dublin Securities, reported in the Bankruptcy Reporter in the 1990’s.


Two or three loose ends from yesterday:


Would our client from yesterday have any indemnification rights or rights over the independent CPA firm, the investment banking firm or the good Ohio law firm that represents the company?  A bare possibility exists against the accounting firm depending on what the GAAS standards were for alleged debtors with post office express boxes.  As to the law firm, Shipman doubts it very much.


The law firm’s role in offerings


Law firms seldom say that they’re undertaking a 100% investigation or an audit.  There are exceptions to that: if there is a sexual harassment claim in a corporation and four of the seven directors authorized the investigation of the fifth director, then the law firm will be extremely careful and investigate the facts fully.  Generally speaking, however, they expressly state in their opinion that they are relying on facts supplied by officers and in the normal course of events, if there is nothing strange about what the officers tell them, they can do so.  Both CPA firms and law firms will sometimes require officers’ certificates.  They will have the officer read, sign and date it.  If you’re an officer, be careful!


In Sarbanes-Oxley § 404, as to public companies, there has to be a system of firm internal controls established.  This has led to an elaborate system of subaffirmations that top management requires from division managers, addressed to them.  This creates additional expense, to the tune of $4 million a year for a $1 billion company.


For lawyers, in giving opinions they will negotiate in the initial agreement that in certain matters they may reasonably rely upon officers’ certificates.  That’s a good way to cut down on legal cost.  In a public offering, the outside law firm’s duties run in two different directions: (1) to the officer and directors, and (2) to the quasi-client.  If the lawyer knows or reasonably should know that what is being done violates the law, then the quasi-client (buyer of the security) can sue the lawyer.


In Tomash, which had to do with indemnification, the director there had asked the lawyer for the company whether what he was doing was legal, and the lawyer said: “Go ahead, it’s legal.”  The lawyer was wrong, and an SEC injunction was issued against him.  His best cause of action was against the corporate lawyer who gave the advice, and then under respondeat superior against the corporation.


What about the legal opinion to the underwriters?  It’s a long opinion on many matters.  The outside law firm would be liable to the underwriter.  One opinion, for example, is that the corporation has picked the correct SEC form to file on.  In the case of a mistake, there is clear liability.  Lawyers never opine that there has been full compliance with the federal securities laws because these laws include anti-fraud provisions and there’s no way that the lawyer can be clear that he’s getting the full story from all the officers.  However, the underwriters do require an independent opinion concerning the truthfulness of the prospectus.  “Based on what we know (without a full audit or full investigation), nothing has come to our attention that causes us not to believe that the prospectus is truthful in all material respects.”  The next sentence will say: “The preceding sentence does not relate to the financial statements.”  In the real world, there is a lot of overlap between the narrative and financial statement portions of the prospectus, and one of the big issues is whether there was an overlap in the case we talked about.


What about the law firm’s liability to the client?  Their opinion is limited and there is probably no possibly of liability.  But lawyers can be held liable.  One of the big law firms in Dallas, out of tax shelter advice, settled in the amount of their malpractice policy, $75 million, based on their recommendation of bogus tax shelters.


Comfort letters


One more thing about deals, registered and unregistered: as to the unaudited interim statements (CPAs only audit annual statements), you can get a “comfort letter” from the CPA firm.  The purchaser will require such a “comfort letter” concerning the unaudited statements.  It reads much like the attorney’s negative opinion: “We have not conducted an audit or a complete investigation.  This is supplied to you alone; nobody else may rely on it.  The opinion may not be assigned or transferred and it applies only to this deal.”  Lawyers in practice refer to this as dealing with the “sister-in-law problem”.  Say you’re asked for a big opinion for a client.  Suppose the guy gets the opinion and the sister-in-law has a similar problem, and the guy copies the letter for her, but it doesn’t fit her situation.  If you don’t have that clause, it’s possible that the sister-in-law can sue you.


They will also state: “We have conducted certain limited inquiries concerning the unaudited statement.  To the best of our knowledge, in our opinion [to prevent a warranty or contract], based on what we know, the interim statements contain no material untrue matter and they are consistent with the bases on which the audited statements were prepared.”


Comfort letters are useful for three reasons: (1) The letters come with a prestigious letterhead.  (2) The accountants take this seriously, even though they don’t audit.  (3) You probably trigger R.2d Torts § 552 because the auditing firm is on notice of special foreseeability.


There are instances in which it would be wise to get audited statements for the six month period if you’re really suspicious.  But it will take a while a cost a lot of money.  It costs almost as much to certify a six month period as it does to certify a twelve month period.


Under New York law, § 552 is not followed.  New York law is unique: this process hooks you up to a negligence standard against a CPA firm, whereas if you don’t do it, you’ll have to prove gross negligence in order to sue that firm.  The comfort letter establishes privity, or, as the Court of Appeals of New York says: “virtual privity”.


Connecting the ’33 and ’34 Acts


In general, the Securities Act of 1933 deals with offerings by issuers and affiliates of issuers that are public nature.  If an offering is private, 4(1), 4(2) and Rule 506 will usually exempt them.  The Securities Exchange Act of 1934 deals primarily with the day-to-day trading markets, both the stock exchanges (NYSE, AMEX) and the over-the-counter markets (NASDAQ).


If you’re a big public company, there is nothing that will exempt you from registration, but you’ll get shorter forms under the Securities Act of 1933.  Be aware of these two forms: under the ’33 Act, you use S-1 if you can’t find a simpler form.  We have talked about the S-8, which is a simpler form for employee stock options and employee stock purchase plans.  The S-8 can only be used by public reporting companies.


In the Securities Exchange Act of 1934, at § 12 we find talk of registration of securities, too.  The big form you use, either with a stock exchange or with NASD is Form 10 under the ’34 Act.  In addition, you will have to file a listing application and signed listing agreement with the stock exchange or NASD.  If you’re a new company, going public, you usually will list on an exchange or on NASDAQ at the same time that you have your ’33 Act statement approved.  But you don’t have to say the same thing three different times.  Once your S-1 is effective, you just fill out the first couple of pages of the Form 10 and listing application and then attach your ’33 Act statement to it.  Then you incorporate by reference.  This information is publicly available in Washington.  You can go and look at the paper or you can look it up on EDGAR.


At § 10(b) of the Securities Exchange Act of 1934, fraud is prohibited in connection with the purchase or sale of any security by any person.  It covers everything!  It’s not often useful to plaintiffs due to the restrictions of the ’95 Act and the fact that you always have to plead scienter with great particularity.  However, the last two U.S. Supreme Court cases on the subject have turned out to be very pro-plaintiff.  American investors bought warrants in a Hong Kong company that also did business in California.  They went to exercise the warrants, but they were refused.  They sued the Hong Kong company in federal court in California.  They proved to the district judge that the Hong Kong company had intended to squelch their efforts at exercising from the beginning.  The case went to the Supreme Court: was this a proper use of 10b-5?  The Rule requires that only a purchaser or seller of securities can sue.  But the options were clearly securities.  The Supreme Court held that if they had the actual specific intent to screw them over from the beginning, then that’s fraud!


§ 14(e) of the Securities Exchange Act of 1934 relates to any tender offer by any person for any security.  If you make a tender offer to a little company and you use the mails or means of interstate commerce, you’re covered.  But § 14(e) does not specifically require the use of the mails or interstate commerce.  If you’re using it affirmatively, it’s usually present, so plead it and prove it.  The Supreme Court has held that where the statute doesn’t require an interstate commerce connection but the plaintiff proves it, you’re okay.


Compare §§ 12(a)-(b) and 12(g).  §§ 12(a)-(b) are voluntary because no one is required to list their securities on a stock exchange.  § 12 (g) is mainly mandatory in that if you have over 500 shareholders and over a certain amount of money in assets, you must file.  § 12 (g) also permits voluntary filing.  Why would anyone want to do that, though?  The answer comes from the Williams Act.  The big deal is §§ 13(a)-(b): public periodic reporting with the SEC is required.  Once you go public and list on the NYSE, you’ll be filing reports thereafter.  Under §§ 14(a)-(c), you have proxies.  Under § 16, you have insider trading reports.  § 16(b) has to do with recapture of short-swing profits.  § 16(c) deals with an officer, director, or 10% shareholder and says that a short sale is a crime.  A short sale is a sale of stock you don’t own.  You sell short when you think the stock is going down.  In the 1920’s, the CEO of a company sold his stock short and made a mint!  This was deemed “un-American”!  Also, you can’t sell “against the box”, meaning borrowing it from your own stock certificates in your safe deposit box.  You have to actually transfer the certificate when you sell the stock!


The Williams Act, §§ 13(d)-(e) and 14(d)-(e), deals with control share acquisitions and tender offers.  §§ 14(d) and 13(d) are restricted to § 12 companies.  But there’s an oddity: § 14(e) and the regulations thereunder apply to tender offers for any security, whether registered or not.  For a private company, go to the regulations for § 14(e) and Rule 10b-13.  For a public company, go to § 14(d) and regulations plus § 14(e) and regulations plus Rule 10b-13.  Most regulation of tender offers today is under state law but the federal law is important, too.


There are two other ways you can become subject to § 13.  If you’re a public utility holding company or an investment company, those statutes incorporate the Securities Exchange Act of 1934 provisions.  Under § 15(d) and regulations of the Securities Exchange Act of 1934, if you file an effective Securities Act of 1933 statement, you become subject to § 13.  Now go to 15c-(2)(11), which says that the SEC has power by regulations to govern quotations for securities on a stock exchange or the over-the-counter market.  Rule 15c-(2)(11) is mind-boggling, but it has a simple purpose: before this Rule, if you were a securities broker-dealer and you wanted to enter into the NASD quotation system, you could do it for quotations for a company not subject to § 13 of the Securities Exchange Act of 1934.  The Rule reverses this: no broker-dealer will enter quotations for a company not subject to § 13 of the Securities Exchange Act of 1934 into a quotation system.  There is one exception, which is if a broker-dealer, on his own, gathers material substantially similar to what would be in the SEC file for a § 13 company, in which case the broker-dealer can enter quotations.  This would be easy for an insurance company because, for 100 years, state law has required insurance companies to maintain mountains of public periodic information at the state capitol.  It’s difficult aside from insurance companies to do this.


Hypothetical on § 12(g)


There is no conflict of interest.  We never represented the person before today.  She should clear it with her boss.  She’s the COO, and she must work for a CEO and the board of directors.  Recall the Bernie Ebbers problem.  Bernie found out that a guy was selling stock without his permission.  He took him out to eat, and when they got back, his office had been cleared out.  Consider Rule 10b-5 and R.C. 1707.44: if you sell securities of an insolvent person and the other side doesn’t know of the insolvency, that’s a crime under Ohio law.  But the company is solvent in this case.  Also, consider the effect of Rule 10b-5 on insider trading.  If there is undisclosed, unfavorable information about the company, the COO can’t trade.  It would be a crime, with the possible exception of a new Rule, but the effect of the Rule isn’t clear.  Shipman thinks that there is no problem under these facts.


Would a § 13(d) report have to be filed?  She owns far less than 5% of the shares outstanding.  Why do we raise this issue?  The rules under § 13(d) deal with beneficial ownership.  Probably no problem there.  A § 16(a) report would be due under Sarbanes-Oxley.  It must be done electronically within two or three days.  This won’t be a problem because most bigger companies have people either in the corporate secretary’s office or general counsel’s office who are equipped to make these filings for her, and with advance consultation with those people she could get them to file the report on her behalf.  If she happened to be out of town on the day that it’s due, she could give those people a signed, written power of attorney to file the reports.  If you’re over 5%, there will be both a § 13(d) report and a separate § 16(a) report.  What’s the theory behind the two sections?  Under § 16(a), the market pays tremendous attention to what the insiders are doing.  Under § 13(d), it’s an early warning system of a possible takeover bid.  If you’re over 5%, whether or not you’re an officer, director, or 10% holder, you’ll have to report.  We don’t think there’s a problem under § 16(a).  Corporate insiders hate this, but the system works pretty well according to Shipman.


§ 16(b) says that if the client or people within her beneficial ownership range purchase and sell within a six-month period or sell and purchase within a six month period, then any shareholder can bring a suit and recapture the difference.  Even if she is pure as the driven snow, it’s no defense.  What’s “sale and purchase”?  Let’s say that looking back six months over her beneficial ownership range (that is, your family, trusts and other close people).  We look backwards first and see if she or anyone in her beneficial ownership range has made a purchase in the past six months.  If it was more than six months, we look forward.  It makes sense that if she buys stock for $10 and sells for $70, it’s clear she’ll be hit with $60 per share recapture.  But if she sells for $70 and then purchases for $40, $30 per share will be recaptured.  We have to warn her about the future!


Next up, we go over Rule 144, which never applies to a company that is never public.  This Rule is very favorable to public companies and their insiders and those buying in exempt transactions from insiders.  Our client is under Rule 144 even if all the stock she bought was option stock or stock she bought through a broker on the securities market because she is an affiliate as defined in Rule 405.  We make a checklist for the company: are they current in their § 13 filing?  If not, we can’t use the Rule.  Next, we compute her beneficial ownership (including ownership by her husband and kids and live-in mother/mother-in-law, family trust, partnership and charitable organizations that she runs).  We look at those people’s transactions and see if this proposed transaction, coupled with others, will pass the volume limit test.  We explain that it must be a brokers’ transaction.  Next, if she has acquired any security in an exempt transaction from the issuer, there will be a holding period of one year that will attach.  In addition, any securities of that nature that she has will have a legend on them, and she’ll have to go to the transfer agent and get securities without a legend because legended delivery is per se bad delivery.  It must be squeaky clean!


She will have to timely file a Form 144.  If she was over 5%, she would have to do three different filings!  In practice, half of the transactions have to be unwound, but people screw it up.  You’ll be dealing with a local office of the brokerage house.  When the Form 144 hits after the transaction, the New York compliance director will say the form is not right and you have to cancel it and do it over.  How do we avoid this?  You can file the form a week or so before the transaction, get the local brokerage house guy and the New York compliance director to both sign off by fax before you actually sell.  In the real world, studies have shown that only half of the letters of credit transactions go through.  That’s part of why American Express makes money off of travelers’ checks.


The company may have filed a stop transfer order with the transfer agent because she’s a #2 officer.  How do we deal with this in advance?  The transfer agent will usually accept the written opinion of internal counsel that it’s okay.  Get that file in advance with the transfer agent.  That will eliminate the stop transfer order.  The internal counsel will usually request the opinion of the personal lawyer for the officer or director and we can give it.  Lastly, the brokerage house that she has got her to fill out a questionnaire, with one question being: “Are you the officer or director of a public company?”  Many brokerage houses also require the opinion of the internal counsel for the company and again, on that opinion, the internal counsel will usually require our opinion as a condition precedent.  It is a bit complicated, and there is a lot of paperwork.


She should pick a specific certificate with a high tax basis.  She should use specific identification.  For § 16(b) purposes, you cannot specifically identify.  A court will pick the stock with the lowest basis.  Probably all of her stock has a basis lower than $70 per share.  A lot of it is probably option stock for which she may have paid $20 or $30 per share.  You will have to go over the tax effects with a tax attorney.


Make sure to get reasonable diversification of investments!  If all our client’s wealth is in her house and this stock, she would be well advised to sell some of the stock and diversify her portfolio a bit.  At Enron, there were mid-level executives in just this situation, holding millions of dollars in Enron stock on January 1 of the year.  By the end of the year, the stock was worth $0.10 per share rather than $70 or $80.  The company looks very good and she seems to have been there a long time.  On the other hand, if all she has is the house and this, she has lumped all her eggs in one basket.  But on the other, other hand, if you take out a second mortgage you can deduct the interest for federal income tax purposes.


Covenant to register


Especially in big Rule 506 transactions, there will be a covenant to register.  For example, venture capitalists come in and advance money under Rule 506 for stock.  They usually won’t do it unless they think the company will have a chance of going public down the road.  They will require a covenant to register the stock that they purchased under certain conditions.  Usually, there is not one, but two or three rounds of venture capital financing before a company can go public.  The contract to register is a valid contract.  Note this practical limitation: if you’re a venture capital outfit and you’re investing in a company and the contract to register is conditioned on the company “turning the corner” and starting to make money, you still have to find an investment banker interested in such transactions.


In addition, if it is agreed that the company will go public, the underwriters will not let the venture capitalists sell over one-half.  This is a matter of merchandising.  If the venture capitalists want to sell more than that, it looks like a bailout and the offering won’t take.  The underwriter will require signatures for a lock-up period, usually nine months, from the venture capital types and the twenty top employees holding the most options.  One of the prospectus items will be the Rule 144 overhang.  The underwriter wants nine months during which the insiders will not cash in.  At the end of nine months, when Rule 144 will be fully effective as to people who have held the stock for a year or more and as to non-executives who want to sell, the market price of the stock will go down an average of 8%.  It’s a risky business to take a company public, but it can also make you a lot of money!  Underwriting fees can approach 6%.  There are also attorneys’ fees and auditors’ fees that will run the total cost up to 9%.


None of Regulation D itself deals with affiliates.  Also, if a company is public, Rule 144 has a volume limit.  Say you have a situation where Smith owns 80% of X, Inc., a closely held company.  GM or some other big company comes along and wants to buy X, either for cash or stock (which would be tax-free).  Can Smith, an affiliate, sell to GM?  Smith can’t use Rule 144 because, among other things, Rule 144 never applies to a company that is never public.  He can’t use § 4(2) because that is limited to the actual issuer.  Smith can use § 4(1) plus § 2(11): when you put them together, the controlling person can, in this situation, sell to GM so long as it is a non-distribution.  The first sentence of § 2(11) talks about distribution.  If something is a non-distribution, then when you put § 2(11) together with § 4(1), you have an exemption.  This will be a non-distribution if Smith meets the test of Ralston Purina: (1) there is full and fair disclosure up front, (2) the purchaser can fend for himself, (3) the stock is legended and there is an investment letter, and (4) GM is given access to Smith and all top executives.  So, there does exist a § 4(1) exemption under this situation.  It’s a bit trickier than using Rule 506, but if you’re careful it can be done.


Close corporations


Today, we’re mainly talking about corporate norms and the power of shareholders.


Corporate norms


McQuade v. StonehamStoneham owned the majority stock of the New York Giants, and McGraw was his manager in the 1920’s.  McGraw was also a minority shareholder in the Giants corporation.  These two basically ran the team and the business.  There were about 7-8 other minority shareholders.  McQuade, a state court judge, somehow got to know McGraw and Stoneham.  McGraw and Stoneham asked McQuade to buy some stock in the corporation to the tune of around $100,000.  They invited him to be an officer of the company.  Stoneham didn’t call a corporate lawyer!  McQuade negotiated with McGraw and Stoneham and entered into a contract with him in their personal capacities.  First off, there was a shareholder voting agreement for a short term whereby the two sellers agreed to vote their stock to elect Stoneham as a director.  The agreement was in writing and was short-term.  It was signed.  There was no bad intent, and all courts upheld this first, limited shareholders’ voting agreement.  Shareholder voting agreements that are limited, reasonable, in writing and signed can be valid even if they don’t meet the standards of R.C. 1701.591 because the courts encourage such agreements.  In the second agreement, Stoneham and McGraw, as directors, agreed that they would keep McQuade as an officer of the corporation for a reasonable length of years.


The stock changed hands.  McQuade paid the money and took over as treasurer.  He performed well.  One day, Stoneham called him in and said: “You’re fired!”  McQuade sues.  The first count is that he wants an injunction for reinstatement.  The second count is that if he can’t get reinstatement, he wants monetary damages.  The trial court did not grant reinstatement.  The trial court thought that the agreement was valid, but in those days you couldn’t get affirmative injunctive relief to keep a job because the feeling was that you always had a damage remedy that was adequate at law.  That’s a correct statement of the law as of 1921.


But the exceptions have grown.  The first exception is found in civil service statutes: if you have a civil service protection with government and you are wrongfully removed without cause, you can go into court and get an affirmative injunctive order for reinstatement.  The second exception comes in the 1930’s with federal labor legislation: if you were fired in violation of the union contract or federal labor laws, you, or the union on your behalf, could go into court and get affirmative injunctive relief for a wrongful discharge.  The third exception was tenure in educational institutions, which has grown over the last ninety years.  If you have tenure and are dismissed, you can go to court and get reinstated.  The fourth exception is found in state and federal equal employment statutes from the 1960’s and 1970’s.  You can sue for reinstatement.  Most plaintiffs will opt for money damages, though, because you don’t want to go back to a job where they don’t want you.  The fifth exception is that if you’re wrongfully dismissed from state employment in violation of state union laws, you and your union can get you reinstated.  But people will often choose damages instead.


Lastly, there are two “new kids on the block”.  Arbitrators can grant remedies that courts cannot unless the arbitration agreement states to the contrary.  In Staklinski, from the Court of Appeals of New York, a close corporation formed an agreement with a top executive for employment for a term.  The agreement was in writing and signed.  After a year or two, the company thought the employee had a disability such that he couldn’t perform and that therefore their performance in paying money to him was excused.  He disagreed about being disabled and he wanted his job back.  The case goes to arbitration, where the arbitrator finds that (1) he is not disabled though he does have some health problems, and (2) an affirmative order is entered that he must be reinstated.  This goes all the way to the Court of Appeals of New York, a majority of which held that arbitrators can issue orders that courts cannot unless the arbitration agreement states to the contrary.  If you don’t want an arbitration agreement to go that far, the magic language is: “The arbitrator shall strictly stick to the law.”  The cases have gone even further than this case.


In the Gigax case from the Court of Appeals in Dayton, arising from Crosby v. Beam, we learn that there is an intense fiduciary duty in close corporations that can be enforced different ways.  Four people formed a company, contributing equal amounts of money and each one being a director.  For a long time, everyone got along fine.  There were no employment contracts for a term.  There were no R.C. 1701.591 agreements.  But one day, three of the directors ganged up on Gigax and gave him the pink slip.  The case had two holdings: (1) applying Crosby v. Beam to the facts of this case, there were no grounds for discharge for cause, and (2) though Gigax wasn’t too smart, he was doing a reasonably good job, and when you have a close corporation with no financial stringency and no grounds for discharge for cause, the three can’t call in the fourth one and dismiss him.  The court entered an order of reinstatement for Gigax.  Then one of the judges said that there was another branch to the case.  The line of cases stemming from Mers v. Dispatch dealt with improper discharge.  Later there was a case with a bunch of physicians who formed a corporation.  There were no employment contracts.  There was an agreement up front that if a majority of the board of directors wanted to terminate one of the doctors as an employee they could do it.  The Court of Appeals in Dayton held that this was not contrary to the holding of Gigax.


Two opinions from Minnesota in the 1970’s in Pedro v. Pedro dealt with a company that had been run by Pedros for generations without an employment contract or .591-type agreement.  One day, one of the Pedros was fired without cause.  The Minnesota Supreme Court held that because the company had a tradition of jobs for all qualified Pedros, he could collect. 


Keep in mind that the trial court held that both parts of the agreement in the present case were valid, but they couldn’t grant reinstatement.  This is correct for 1921, though these exceptions have been created since then.  McQuade had done a good job, and he was not fired for cause.  The part of the agreement that purported to bind the two people qua directors was not okay, and was contrary to public policy.  It was contrary to corporate norms, and hence unenforceable.  Note that McQuade got screwed!  He paid out all this money for minority stock.  They kicked him out and took his money!  The court also alluded to the fact that McQuade was a public official and he violated New York law by negotiating for a private position while on the pubic payroll.  The rest of the cases follow from this one.


How far could McQuade have gone with an enforceable contract under New York law?  With whom would he have had to negotiate?  The voting agreement is okay, but we’re talking about a position with the company.  He would have to negotiate with the other board members, who hire and fire officers and other top executives.  The New York statute provided that the board would elect officers once a year.  McQuade could have gone to the full board and gotten a position for a certain number of years as a high executive employee with board approval.  Such a contract will go on to say: “Employee agrees to serve as an officer and/or a director, if elected, without any further compensation.”  In other words, his compensation package would be spelled out for this particular job.  That’s as far as he could have gone in New York in 1921.  But what about in Ohio in 2004?  What else could he have done, and how, under R.C. 1701.591?  Could he have gotten a five-year contract as treasurer under .591?  What do you have to do to get such an agreement?  You need the concurrence of both the directors and all the shareholders (including non-voting shareholders).  You have to meet the technical requirements of the statute.


Say McQuade had entered into a five year contract, the board approved it, and it’s in writing.  Could he then be dismissed with cause?  The answer is that of course he can.  But could he be dismissed without cause?  If McQuade had an agency coupled with an interest and the contract stated that it was irrevocable, this makes for a tenth exception.  McQuade bought stock, though he didn’t buy it from the corporation.  If he had bought the stock from the corporation, it would have been an agency coupled with an interest and if there was an irrevocability clause, it would have been irrevocable.  After World War II, statutes in both New York and Delaware have modified the common law rule as to proxies.  Very often in a close corporation there will be a shareholders’ voting agreement and a proxy given.  Is that a proxy coupled with an interest under agency law?  At common law, it’s not clear, but by statute in both New York and Delaware the answer is yes.  Furthermore, in New York, if it’s in connection with a valid employment contract, it is coupled with an interest.  Keep in mind that the common law rule is strict, but consider one of the examples given by R.2d Agency: a company is having financial problems.  Smith buys stock from them and at the same time takes an executive position.  He cannot be dismissed without cause because this is an agency coupled with an interest and is thus irrevocable.  But if the contract waives that protection, the waiver is valid most of the time.


Clark v. Dodge – Here we have sweat equity with a secret process meeting a capitalist with a lot of money.  A corporation is formed and the capitalist is to contribute a lot of money and get 75% of the stock.  Sweat equity is to turn over the secret process and get the remaining 25% of the stock.  There is a close corporation agreement between the two of them.  It is limited and carefully drafted.  It is limited to the lifetime of the two individuals and it says that sweat equity will be retained as a corporate officer as long as his work is adequate.  The salary specified is reasonable.  The company is formed, and after a while, the capitalist uses his 75% stock interest to take over the board and cause the board to fire sweat equity.  Sweat equity sues for specific performance.  The trial court says that based on McQuade v. Stoneham, the contract violates corporate norms.  The Court of Appeals of New York disagrees, saying that because 100% of the shareholders had signed, the infringement of the corporate norms were minor, the creditors weren’t hurt, and the employment arrangement for sweat equity was only so long as he did a good job.  They remand to the trial court, where it was found that sweat equity had not turned over the secret process.  Sweat equity is booted out of court for having unclean hands!


Galler v. Galler – We have two brothers with about 46% stock holdings each and 8% to a minority shareholder who was a high executive employee.  The brothers did some tax planning together and entered into an agreement as to what would happen after the first brother died.  There were provisions as to voting of the stock and there were also provisions on payments to the widow of the deceased brother.  Those payments were limited, creditors weren’t hurt because of the limits, and in addition, the payments could only be made if they were income tax deductible.  So the first brother dies and the widow of the second brother sues for specific enforcement.  There are three different sets of litigation.  There is no close corporation statute in Illinois at the time of the litigation.  This is solely a common law matter.  When all is said and done, the result is: (1) the agreement was for a reasonable length, that is, the agreement was going to terminate on the death of the widow of the first brother to die, (2) the purpose was reasonable, (3) the agreement was in a signed writing, (4) nothing in the agreement hurt creditors because it was so limited, and (5) the court was impressed with the fact that the widow’s pension was not large and that it would cease if the amounts proved not to be tax-deductible.


What’s the difference between this case and Clark v. Dodge?  The difference is that we had one non-signing shareholder: the 8% minority holder.  The court wants to hold for the widow, and they hold that the minority shareholder didn’t object and that he wasn’t really hurt.  Therefore, the agreement was upheld.  The litigation was long and vicious.


Zion v. Kurtz – We had a Delaware close corporation doing business in New York.  We have two 50% shareholders who had a shareholders’ agreement between them that was signed, written, with a proper purpose, not unreasonable in length, and without harm to creditors.  But under Delaware law, a close corporation agreement is valid only if, among other others, the charter of the company is amended to put in the charter that it is a close corporation.  Ohio has a number of technical requirements, but it doesn’t have this one.  The majority opinion was that this was a mere technical deviation that did not hurt the company or the other shareholder, and thus that the court would enforce it.  The dissent says that a rule is a rule and a requirement is a requirement, and that the parties should have dotted their t’s and crossed their i’s, so the agreement shouldn’t be enforced.


Matter of Auer v. Dressel – Here we get wild!  We have a small, public New York corporation.  Under New York law, the board of directors is to elect the president annually.  Note that the way to avoid conflict with those requirements is to have a contract for five or ten years to be a high executive employee and to serve as an officer or director, if elected, at no additional compensation.  Here, there was no contract.  The president was elected and was very popular with a group of minority shareholders.  But he got on the outs with the board of directors.  Under New York statute as well as Ohio statute, the president could be removed with or without cause.  (This is found in Ohio at R.C. 1701.61-.66: the statute says that it’s not going to affect any contract that he had.)  The minority shareholders call a meeting.  All state statutes provide that if a certain percentage of shareholders get together and sign a call and file it with the secretary, the board must call a meeting.  Ohio has this statute at R.C. 1701.37-.59.  It’s a very populist statute!  Be warned: if it’s a public company, gathering the signatures together will constitute the solicitation of a proxy under 1701.14.  If you only do ten or fewer, there is an exemption, but otherwise you must file a statement with the SEC.  The controlling case is Studebacker, from the Second Circuit in the 1950’s.  The second problem is that the board is going to resist this.  How do you react?  Under FRCP Rule 65, you file for a TRO.  If you prove that you’ve filed the correct signatures, the court will issue a mandatory injunction forcing the board to call the meeting.


What were the purposes of the meeting in the call?  It was to remove the directors for cause.  Under New York law, there was no common law right as of that time to remove directors without cause unless the charter so provided.  Most states in the last fifty years have turned this around.  But it was held that there is a common law right to remove directors for cause.  Was removing the president for cause something that created the right to remove the directors for cause?  The New York court says this should be reviewed after the meeting.  In Delaware, the courts will consider this question up front.  You can’t use proxies to remove directors for cause.  Proxies are used for all kinds of purposes by shareholders!


The dissident shareholders wanted to put before all the shareholders assembled at the meeting a resolution that seems to read like an order for the board to reinstate the deposed, loved president.  The court is shifty and subtle!  They admit that in New York, the board has the authority to elect and remove officers.  Therefore, under McQude, a shareholder resolution ordering the board to reinstate the guy would be void.  If it were an order, the court would strike it down.  However, they construe the language of the resolution as being precatory: a request of the shareholders assembled to reinstate the president.  The court says that precatory resolutions to the board as to corporate business are fair game even if it would be unfair if that resolution were mandatory.  Why is this important?  Under SEC Rule 14(a)(8), shareholders are allowed to put in, at company expense, certain shareholder resolutions.  Management hates these!


In many instances, the shareholders cannot put in mandatory resolutions, but in many of those instances where they can, they can change the language to: “We respectfully request the board to do such and so” and be able to put it in.  Be cautioned that (1) in Ohio, because shareholders have the power to amend the regulations and articles, there are times shareholders can put in mandatory resolutions at meetings.  (2) The statute on call of meetings has been amended recently to increase the percentage required.  If it’s a public company, you’ll have to file an SEC proxy statement to get a certain percentage.  (3) In Ohio, R.C. 1701.58, dealing with removal of directors without cause, has been extensively amended in the last five years to say that if the board is classified (think of the U.S. Senate: 1/3 elected every two years), you can’t remove without cause.  This was put in by anti-takeover forces.  Most takeover bids in Ohio deal with getting control of the board of directors of the target.  Ohio is one of the few states where the shareholders can amend the articles to increase the number of directors and to fill the vacancies.  A contested takeover bid for a public company in Ohio will typically involve the call of a meeting to increase the board from 9 to 35 (management has the advantage of cumulative voting in most Ohio companies and will elect some of the 26 additional directors).  The amendment to R.C. 1701.58 a few years ago is largely meaningless in the context of a hostile tender offer in Ohio.  The Ohio amendment was patterned after Delaware, where the amendment actually means something because shareholders, acting alone, cannot amend the articles or regulations.  Hostile takeovers are hot stuff!  We’ve just scratched the surface!


Cognovit clauses


These start out in 1960.  They are also known as “confession of judgment” clauses.  What are they?  In around 15 states, these clauses were routine both in consumer and commercial transactions.  In California, New York and most American states, they were quickly ruled against public policy.  Near the end of a contract, it would say: “I, the maker, do hereby appoint any licensed attorney in Ohio to confess judgment in full on this note at any time on my behalf.  This authority is irrevocable and we declare it is an agency coupled with an interest.”  In the old days, trial lawyers would simply go down to the courthouse and find people who they litigated against with a stack of notes and have the other guy sign them.  The other guy would do the same for you.  This is an odious practice, according to Shipman.


In the 1970’s, the U.S. Supreme Court took up two cases in the 1970’s under the Fourteenth Amendment related to cognovit clauses.  In the Ohio case that reached the Supreme Court, the cognovit clause was in a commercial contract between two businessmen each separately represented by independent lawyers.  Evidence was also presented to the Court that the Ohio practice was that one the cognovit judgment had been entered, if the maker had a good defense, then he could usually move for a new trial and move to set aside the cognovit judgment.  Once you get that judgment, you can get a writ of execution and levy on whatever that guy has.  The Supreme Court ruled in two cases that, at least in a commercial transaction between sophisticated people, the practice does not violate the Fourteenth Amendment.  After the two cases came an FTC rule outlawing cognovit clauses in consumer paper.  An Ohio statute did two things: (1) it outlawed the clauses as to consumer paper, similar to the FTC rule, and (2) it set out a full-caps legend that must be typed verbatim into the note.


These clauses are widely used in commercial transactions in Ohio.  Why is this agency law?  It’s an agency coupled with an interest; note the drafting.  What if Mr. Smith goes crazy after signing the commercial cognovit note?  Under standard agency rules, insanity automatically terminates any power of attorney or any agency.  However, the courts have held that if you have a cognovit note stated to be irrevocable and coupled with an interest then that rule will not apply.  If Mr. Smith gives a cognivit note in a commercial transaction to Huntington Bank and then goes insane, Huntington Bank can still use it against him.  But what if Mr. Smith dies?  The standard agency rule is that the death of a principal terminates agency even if neither agent nor third party knows of the death.  There is an old U.S. Supreme Court case written by Chief Justice Marshall so holding.  Most states follow that, even as to cognovit notes.  Cognovit notes have two big problems: (1) the death problem, and (2) the lawyer for the creditor can’t sign it; you must find someone who is not a lawyer for the debtor or the creditor.  It’s very difficult to get people to sign it because it’s too much of a grey area.


In Ohio and the states where cognovit notes are used, people put too much trust in them as a good security device.  In other words, if you’re a small supplier asked to supply 100,000 units to a small manufacturer, unsecured, you can use the cognovit note, but you should keep in mind that institutional creditors such as banks and insurance companies are ahead of you with recorded first mortgages.  The cognovit clause will help you collect a little bit, but not a lot.  On the other hand, if you’re a debtor with a lot of power, don’t agree with the cognovit clause!  The judgment can get on the record in two hours, but it can take two years to get out of it!  The problem is that it is very difficult for debtors or lessees to avoid the cognovit clauses in Ohio.  All creditors’ and lessors’ lawyers have them on their forms.


One more bit about agency: the problems that have talked about death and insanity revoking powers of attorney have caused problems for a long time.  In World War II, nearly every state enacted a “Servicemen’s Statute”, providing that if you were a serviceman, you executed a power of attorney before you went to fight overseas, you told your spouse to sell Greenacre, your spouse negotiated with Mr. X to sell Greenacre, and a contract was signed, then if neither the spouse nor Mr. X knew that the serviceman had been killed before the contract was signed, the contract would still be binding.  At common law, before these statutes, that was not the result; the contract would not have been binding.  On big deals, then and now, the third party dealing with the serviceman will insist that the serviceperson transfer to a revocable trust with a bank as trustee, since even today you can avoid a lot of these problems.


Thirty years ago, a “new kid” arrived on the block.  By statute in all states, durable power of attorney say that if someone in a signed, dated power of attorney writing states that “if I lose my legal capacity to act for myself, then Ms. X is my agent for all of the following matters”.  The power of attorney can be springing.  So long as the person is in their right mind, Ms. X has no power.  On the other hand, the power of attorney can be by a fully competent person.  They can have their lawyer draft a durable power of attorney for Ms. X while he’s fully in his right mind.  So long as the principal retains his sanity, the power of attorney can be revoked by him.  If he loses his sanity, and thus he himself cannot revoke, how can it be revoked?  It can be revoked through a proceeding for the guardianship of the person and the property in the probate court brought by the relatives of the principal.  Suppose the daughters don’t like Ms. X and think that she’s not taking care of him well and squandering his money.  They can go into the probate court and ask that, for example, the eldest daughter be appointed guardian of the person and of the property.  That appointment will cut off Ms. X’s powers.  Note that the durable power of attorney will not give Ms. X the power to commit the subject to a nuthouse.  She would have to go through very formal procedures at the probate court.  The court would have to appoint an attorney for the man to determine if he’s a nut.


The newer kids on the block are the living will (by statute in the last twenty years) and the health care power of attorney.  You can go to a lawyer and have drafted a health care power of attorney appointing certain people to have your health care power of attorney if you are unable to work with the doctors in the hospital.  But note that so far as the property is concerned, the “old kid on the block”, the revocable trust is often the best available choice.  The old man can revoke that trust at any time while he’s competent and get control of the property back.  Also, the bank can never be appointed the guardian of the person; it can only be the guardian of the property.  The proceedings in the probate court are public, and most families hate to deal with it.  Finally, as an attorney involved in such matters, keep in mind that you should tell the person under a power of attorney to account annually to the children and spouse and get them to approve.  Note also that the Code of Professional Responsibility gets tricky if a lawyer acts in these capacities.


Gottfried v. Gottfried – When minority shareholders sue the company to force a dividend, the business judgment rule will apply.  You’ll have to show gross negligence, bad faith, or fraud.  In this case, the minority didn’t get along with the majority, but the court pointed out that the directors had redeemed a lot of preferred stock and that actually a good bit of money had come out of the company and that the business judgment shield was not shredded.  Tax-wise, these transactions are covered by Internal Revenue Code §§ 301-302 and 306.  Within the past two years, many types of dividends of a Sub C company are taxed with only half of the amount being included in gross income.  It is a partial relief of the double tax and it is crucial.  Where stock is redeemed, the transaction may be a capital gains transaction or it may be a dividend transaction.


Fiduciary duties of stock redemptions


Donahue v. Rodd Electrotype Co. – The Massachusetts line of cases as to close corporations is followed in Ohio by a state court of appeals case from the 1980’s called Estate of Schroer v. Stamco Supply, Inc.  In Donahue, an old man is the president and CEO and has the controlling stock interest in a corporation.  He shows no signs of retiring.  In business school parlance, there is no succession plan.  He just keeps on going because he has a good salary.  The company has never paid dividends.  The biggest minority shareholders are his sons.  A smaller minority shareholder is the husband of the plaintiff, who worked for the company and died before judgment.  The sons are anxious for a succession plan.  They want to get the person out and they come up with what, to them, is an extremely logical plan: the corporation should repurchase the shares.  In Ohio, this is governed by R.C. 1701.11-.37.  The Ohio statute is more restrictive on repurchases than many states.  There are instances where you need a shareholder’s vote in order to do it, but there are other instances where you do not need it.  Here, there was no fraud, no allegation of an unreasonable price and no allegation that the company lacked the surplus or was rendered insolvent.  It’s a pretty clean case!


The minority employee, and later his widow, argued that either the transaction with the old man ought to be rescinded, or the same offer should be made to the widow.  It’s an equal protection argument under the guise of fiduciary duties.  On these facts, the Massachusetts court analyzes the position of a minority shareholder in a close corporation.  It can be pretty grim money wise.  The controlling shareholders are likely to get the good jobs and pay themselves decent salaries, meaning they have no need for dividends.  The minority shareholders get no dividends, and if they attempt to sell their stock, they will find that it’s hard to sell.  When you have stock in a big publicly traded corporation, you can buy and sell a small amount of stock.  If the majority shareholders can show a legitimate business purpose for what they did, we will let them do it without giving the minority shareholders a remedy.  In a famous footnote, another exception is provided.  If the articles of incorporation or bylaws (regulations) do not provide to the contrary or if 100% of the shareholders consent and there is no danger to creditors, then we will go along with it.  What does it all mean?


Here is a paradigm hypothetical.  Father is asked to invest in the stock of a company where his daughter is the majority shareholder.  Suppose that’s his only child, he’s not married, and he can afford it, but he wants his money back in five years.  How will his attorney set it up?  He’ll buy the stock with a redemption agreement whereby the company agrees to redeem the stock at fair market value in five years.  Fair market value will be defined as fair market value without minority discount.  That is, they will value all the shares and spread the value among them.  But that’s not enough!  Father’s lawyer will have to include a requirement that the company first amend its regulations and have all shareholders ratify the redemption agreement in advance therein.  If he fails to do this, Father may get caught by the Massachusetts cases.  Father could theoretically lend his daughter’s company money, but in the real world that probably wouldn’t work because the banks and suppliers would balk unless Father subordinated the debt to all institutional creditors.


In one case, a minority shareholder had veto power over dividends.  He was wealthy and wanted zero dividends.  The younger people needed dividends to get living expenses!  This ended up in a suit, and the court held that a minority shareholder with veto power will be considered a de facto controlling shareholder and will thus be subject to the same liabilities.  Likewise, in Ohio, if you run the citatory on Crosby v. Beam you’ll find an Ohio Court of Appeals case that is exactly the same: minority shareholders with veto power through a shareholders’ agreement can be held to the same standard.


Stock dividends


R.C. 1701.95 refers us back to .04-.06 and .11-.37.  There are two tests for a stock dividend in Ohio.  There is the total surplus test.  After a dividend, the total surplus must be zero or positive.  There are two flavors of surplus: earned surplus is a running balance of net profits minus dividends minus losses and minus certain portions of stock redemptions.  The balance of earned surplus can be positive, negative, or zero.  The other flavor of surplus is capital surplus.  There are four ways to create a capital surplus (four subaccounts).  Each subaccount will be either zero or positive; never negative.  The four subaccounts are (1) consideration in excess of par, (2) donated surplus, (3) reduction surplus, which comes about by reducing the par value of outstanding stock, and (4) contrary to generally accepted accounting principles, Ohio allows revaluation surplus.  If you have land that cost you $1 million and it’s now worth $10 million, you can put on the left-hand side of the balance sheet: “Revaluation of land: $9 million”, and then on the right-hand bottom of the balance sheet, you add in “revaluation surplus” in the amount of $9 million.  Legal scholars think that Delaware and New York allow the same, but Shipman has never been totally sure.  In some states, the surplus test is limited to earned surplus.  In both Delaware and Ohio, you put the two together to see if you meet the test.  Most companies keep the GAAP flavors.


The second test which must also be met in Ohio is the insolvency test, which is a cash flow test.  It is the equity insolvency test, which is: do you have enough liquid assets to pay your liabilities as they come due in the course of business?  The other insolvency test is the bankruptcy insolvency test: do assets exceed liabilities?  In the Bankruptcy Code, each test is used in various places.  But you must meet both tests, or else directors are personally liable for issuing dividends.  Read R.C. 1701.95 carefully and you will find that if the directors rely in good faith upon outside CPAs, company officers, and lawyers, then they’ll be in good shape.  But what’s wrong with relying on lawyers?  Most lawyers won’t help you much because they don’t want to get involved!  However, if you have good officers who have prepared good written reports, then that helps.  If you can get an outside firm to check the numbers, that’s also good.  A lawyer will tell you that the defense exists and how to get it.  If you follow a good lawyer’s advice on procedure and do things by the numbers, then you’ll be ahead in court.


There is a crucial Fifth Circuit bankruptcy case from the 1930’s called Arnold v. Phillips.  It holds that in bankruptcy, where debt obligations are issued in a stock redemption or dividend, the test is applied twice: initially, and also when payment is due.  Shipman believes that this case is still good law.  In addition, Ohio and other states the fraudulent conveyance statutes are applicable.  As a remedy against the recipient shareholders, they are better than the corporate statute.  The Ohio Fraudulent Preference Statute, R.C. 1336.56-.59, and the Ohio Fraudulent Transfer Act both are especially hard on preferences to insiders (what the Securities Act of 1933 would call “affiliates”).  In the Enron bankruptcy, for example, two days before the bankruptcy filing the company bought about $100 million in certified checks from the bank and paid a lot of insiders.  There is a suit to set aside this purchase as fraudulent or wrongful purchases under the Bankruptcy Act.  Shipman thinks that the trustee in bankruptcy will win.


Agent for an undisclosed principal or a partially undisclosed principal


Securities and Exchange Comm’n v. Texas Gulf Sulfur Co. – You’re a big New York based sulfur company.  You dig a big hole in Canada and set a core to Salt Lake City to be assayed.  A visual inspection is done, and it looks good.  Another look showed that it was spectacular.  It’s not a sure thing that there’s sulfur or other minerals for miles around.  It looks like it is potentially good.  What the company did was to hire non-employees to go up to Canada and talk to the farmers on top of the land and offer them a good price for the lease but not the near-spectacular price that the land was really worth.  The agents were probably not told of the results.  Really confidential info is given out on a “need-to-know” basis.  These people bought in their own names and took title in their own names.  After the second, truthful press release they transferred title to Texas Gulf Sulfur, which in turn reimbursed them.


Let us analyze this in the agency context: they were agents for an undisclosed principal.  Is this per se against public policy or fraudulent?  No, it’s definitely not.  There are many big investors, buying under 5% of outstanding shares, who want to keep their transactions confidential for various legitimate reasons.  If you happen to get hints from the press that all is not well, you can sell without any restriction under 10b-5 and you don’t have to deal with Rule 144 paperwork.  On the other hand, they may use the press carefully to find out that there is positive news and they want to load up on more stock.  In a big Second Circuit case, a person was an agent for the world’s biggest user of a certain commodity.  But if there is a fiduciary duty between the agent and the third party or the principal and the third party, then you must come clean up front.  Also, if the third party puts the direct question to the agent: “Are you buying only for your own account and not for resale?” and the agent lies, there is an action in fraud.


There are two “curlicues” on the doctrine.  The plaintiff’s lawyer will always look for this early if the apparent defendant is judgment-proof.  On the other hand, if the defendant is GM or Exxon, you’ll always get paid if you win.  What happens if the principal gives the agent the money up front to buy the commodity with, and the agent squanders it away?  That may be the commission of a fraud upon the principal because the money was given in trust.  If the principal pays up front and the agent doesn’t pay, there are two rules.  The majority rule is that you can’t reach the principal under the doctrine of agent for an undisclosed principal.  The more modern rule in Restatement Second of Agency is to the contrary: whether or not the principal has already paid the agent, the third party can get relief from the principal even though the principal has to pay twice.  You hire people who you can trust completely and who are financially solvent to do this kind of thing.


In Texas Gulf Sulfur, the farmers were all paid.  They hired responsible people who issued their own checks that were valid.  The farmers sued for rescission.  Texas Gulf Sulfur settled the fraud suits.  The Canadian provinces later amended their statutes to require disclosure up front of the drilling information, that is, it would be considered material to the transaction.


What is a partially disclosed principal?  This is where the agent says: “I’m buying for someone else and I can’t tell you who it is, but I’ll give you my own check and my check is good.”  The rules are fairly close to those for the completely undisclosed principal.


In fraud and related theories, we are assuming no fiduciary relationship at all.  You have big problems!  Starting in 1910, American fraud law began to expand.  Prior to 1910, the law of fraud was very narrow when it relied upon total non-disclosure.  It was helpful if there was an overt material representation or half-truth.  But if there was total non-disclosure and no fiduciary or other special relationship between the parties, most American courts would not have allowed a fraud claim.  Samford Brass, consistent with Restatement Second of Torts, deals with the special fact doctrine, where the total non-disclosure is about not only a material fact, but a highly material fact which we will call a special fact.  Note that a highly material fact puts the case in the arena of Sherwood v. Walker, the barren cow case.


This case involves securities.  We have an AMEX company that needs to raise equity capital.  They undertake a Rule 506 offering with, among others, Mr. P who is generally sophisticated and moderately knowledgeable about securities.  The company sells him options to buy stock.  In those days, that meant the option would have to be held for two years before you could get an unlegended security, and then the security would have to be held for two years.  The security was unlegended.  The private placement memo did not mention the Rule 144 restrictions on disposition.  The stock does very well for a time, during which Mr. P goes to the company and asks to exercise the option.  He would have made a lot of money.  But the president of the company says that exercising the option would violate Rule 144.  By the time the holding period was satisfied, the stock had plummeted.  A diversity suit was brought in federal court under New York law including contract and fraud theories.  It is stipulated that there is no fiduciary or special relationship between the parties, in which case a non-disclosure of even a simple material fact could have been fraudulent.


On the contract count, the court held that the plaintiff didn’t have a cause of action.  On the fraud side, they reversed summary judgment for the defendant and remanded for trial.  They said that New York law would govern.  The case is not under 10b-5.  In fact, often your remedies are better under state than federal law.  10b-5 is a high scienter section.  The court found a New York case from 1920 dealing with an upscale piano store with a huge showroom of half new and half high-quality refurbished pianos.  A lady came into the store thinking a piano was new.  She was not told otherwise, and so she wrote a check and took the piano home.  Later, the piano tuner told her that it wasn’t new.  She sued in fraud, with the stipulation that there was no fiduciary relationship.  There were no consumer laws at the time.  The Court of Appeals of New York held that where one party to the contract is under a false impression as to a special fact and the other party knows that false impression and doesn’t correct it, then if scienter can be shown, there is fraud even though there is no fiduciary or other special relationship.  The Restatement Second of Torts follows the same doctrine.


A case with a similar result under contract doctrine comes from the 1970’s in California: Stare v. Tate.  A couple were getting divorced.  California is a community property state.  As to the husband’s personal earnings post-marriage, even if that property is titled in his name alone, it is community property and the wife has a vested right in that property.  In a common law state, if she dies before him, her interest is said to be inchoate and her will would pass nothing.  In both common law and community property states, a divorce results in a 50-50 split in marital or community property.  The woman’s lawyer sends to the man’s lawyer the final draft of the papers they were to sign for the property settlement.  It was based on the negotiation of the principal.  The wife’s lawyer made a $250,000 mistake against her.  The lawyer turns to the client, saying “we ought to tell them their figures are screwed up”.  The husband says “no way”.  In theory, the judge ought to look over the papers, but the judge never will.  The judge just glances at them.  If the husband had stayed quiet, probably no one would have every discovered it.  But later, at a cocktail party, the ex-husband went up to the ex-wife and tells her how he cheated her out of marital property.  She brings an action to reopen the settlement.  The judge finds that there is a contract principle that is very similar to the tort principal.  Always look at both the contract and tort remedies!  There are times you do not have to show bad faith or scienter in contracts, and the statute of limitations may be a lot longer.


We have two subdivisions of the Texas Gulf Sulfur case: we’ll pay more attention to the insider trading portion but we’ll also deal with the issue of the press release.  The top brass of the company told everyone to keep quiet.  Was the management of the company in violation of § 13 by imposing a blackout period?  The court says no: it was within their business judgment.  The SEC agreed.  But some people didn’t keep the blackout!  They told other people to go out and buy lots of stock!  This is a civil proceeding for injunctive relief and disgorgement.  The courts have held that the SEC has inherent power to go into the federal courts and get disgorgement.  Note, however, that Sarbanes-Oxley goes beyond disgorgement.  The court holds that the rule is that mere possession of material inside information is enough to put everyone under the “Just Say No” rule.  The company insiders said that they weren’t allowed to disclose because the president of the company would fire them.  The court says that they should abstain.  The thrust of the ruling is equal protection.  It’s a typical Warren Court equal protection opinion, albeit at the Court of Appeals level.  The court also holds that those who tipped and those who are tipped off can be forced to disgorge their unjust gains.  The case never made complete sense because Rule 10b-5 is a fraud section.  Under Ernst & Ernst v. Hochfelder, decided later, it was made clear that the plaintiff must plead and prove scienter.


What about the press release?  The majority opinion screws up worse.  They say the company will be civilly liable to people selling on the basis of the press release without any discussion of scienter.  Judge Friendly’s concurring opinion corrects the majority opinion.  We now have the 1995 Act which adds on more.  Note the potential liability associated with false press releases and the like.  The DJIA has gone up from 880 to 10,300 since 1981.  Some days the volume on the NYSE is 2-3 billion shares.  The over-the-counter market has also grown.  The 1995 Act tries to deal with this.  It enacts a “statutory caution defense”: if your press release has enough cautionary language, you won’t be held liable.  The case law has also developed this independently of the statute.


Apple Computer had a successful IPO in the 1970’s.  They were going to come out with Lisa.  Steve Jobs put out a bunch of glowing press releases and a lot of people believed him.  The Wall Street Journal and New York Times covered the new computer and they wrote many stories saying it was all crap.  The stock shot up and then took a nosedive.  The first issue was whether press releases could trigger 10b-5.  Could people reading the press releases rely on 10b-5 to get relief if the stock took a nosedive?  The court said that if you promote your products vigorously enough, you can get sued under 10b-5.  The president wanted indemnity from the company and vice versa.  The jury came in saying that the company had zero liability, but the president had liability of $100 million.  The judge set aside the verdict and ordered a new trial.  The Ninth Circuit opinion added an important defense: the total mix of information.  They told the judge that on retrial he must let in as evidence all of the WSJ and NYT articles because it could be the case that the articles were circulated so broadly that there could have been no reliance on the Apple press releases.  Rumor has it that the company settled to the tune of $21 million.


In 2003, the California Supreme Court, reviewing a Rule 12(b)(6) motion (which, in California is called a general demurrer), there was a company that put out materially misleading press releases.  The suit was brought by someone who bought stock in the company but did not sell.  He alleged that he relied on the press release.  Such a person has no cause of action under Rule 10b-5.  The California Supreme Court held that this probably did allege a cause of action under California common law.  The court hinted that the fault standard is negligence, not scienter.  It’s a highly unnerving opinion!


Texas Gulf Sulfur deals with organized trading market transactions.  The people are not dealing one-on-one with each other.  Someone buys GM stock and it later goes down.  GM had suspected that things were going bad but kept quiet for two weeks while investigating it and a negative press release comes out after you buy.  Under Sherwood v. Walker, can you go to the SEC and have them find out who was on the other side of your transaction and force the other person to rescind?  No, because this is impractical.  Sherwood must be restricted to one-on-one situations.  The Texas Gulf Sulfur is extremely egalitarian and equal protection-based.  The next two cases add several limits.  All of Rule 10b-5 is fraud-based and requires scienter.  It is generally agreed that Rule 14e-3, adopted under § 14(e), requires no fraud.  Textual analysis of § 14(e) suggests that the first sentence, which is self-executing, deals with fraud.  The second sentence, which came a few years later and which is not self-executing (that is, requires rulemaking) is clearly not fraud-based.


Chiarella v. United States – Here we had a printer for a big New York City printing shop.  All around the plant there were signs posted saying that all information is highly confidential.  One day, an offeror appears who will make a hostile tender offer, in a few days, for Z, Inc.  He reveals his identity only to the president of the printing company.  He gives the president material to be printed with spaces left blank in key areas.  This is meant to provide anonymity.  The omitted spaces had the exact number of spaces for each company.  There were nine letters left blank.  When Chiarella looked at the numbers, it didn’t take him long to figure out which company the deal was for.  Chiarella runs out and calls his broker to load up on the stock of the target company.  The offer was going to be at a substantial cash premium.  Chiarella doesn’t know who reported him, but it might have been a broken romance.  This is the first criminal prosecution for Rule 10b-5 ever.  Up to 30 years ago, criminal statutes were rarely used for white-collar crime.  The jury found him guilty and the Second Circuit affirmed.  It was held that the indictment alleged no crime, and thus the conviction was overturned.


Justice Powell said that neither Mr. Chiarella nor the employer owed a fiduciary duty to the shareholders of the target company.  Both Mr. Chiarella and his employer did, however, owe a fiduciary duty to the offeror.  For the first time before the U.S. Supreme Court, the government says there is another theory that they want to pull out.  They want to claim that this was misappropriation of the principal’s confidential information, which, in itself, should be considered fraud.  But the theory wasn’t raised in the indictment, which means that it couldn’t be raised later!  But the misappropriation theory is alive and well, at least in the Second Circuit.


Take, for example, the case of United States v. Carpenter out of the Supreme Court.  Carpenter landed a job at the Wall Street Journal.  He wrote a column called “Heard on the Street” that had a great effect on the market.  Some traders would get up extra early to get the WSJ and read that particular column and trade based on what it said.  Carpenter told his lovers of this, and they made out like bandits.  If he was going to say something good about a company, he would tell his lovers in advance.  At the various brokerage houses where his lovers traded, the compliance officers and computers picked up on the pattern.  They went to the SEC and the United States Attorney.  There was a joint investigation, and eventually Carpenter confessed.  There was a criminal prosecution under Rule 10b-5 and the Federal Mail/Television/Radio Fraud Act.  The jury convicted him on both counts.  The Second Circuit affirmed.  The case went to the U.S. Supreme Court, where the mail fraud count was affirmed 8-0.  He clearly had violated the mail fraud statute by robbing his employer of confidential information.  The Rule 10b-5 count was affirmed 4-4.  There hasn’t been a subsequent opinion on the theory of misappropriation, so the Second Circuit continues to apply it.  The theory is rather uneven in other circuits.


That’s not the end of the story.  SEC v. Dirks was an appeal of an SEC disciplinary action against a broker-dealer.  In this opinion, the Chiarella test was made more explicit.  The opinion said that mere possession of inside information is not enough for Rule 10b-5.  To that extent, both of these Supreme Court cases limit the ruling in Texas Gulf Sulfur.  The tipper must have violated his duty of loyalty to the company, and there must be a benefit to the tipper.  Rule 10b-5 is a fraud section.  Many things can be a benefit: (1) business benefits, (2) reciprocity benefits, or (3) social/romantic/sexual benefits.


The president of an NYSE company goes to a bar and bring his assistant along, gets drunk, talks too loud, and Mr. X overhears in the next booth.  Mr. X has no fiduciary relationship with the company or anyone else.  Can Mr. X, insofar as 10b-5 is concerned, trade on this information?  Yes!  On the other hand, if the president of the company talks about a tender offer that the company is going to make in two weeks at a big premium, we go to Rule 14e-3 which says that in the limited context of a tender offer reinstates the broad mere possession test of Texas Gulf Sulfur.  Note that the second sentence of Rule 14e-3 is not a fraud section.  It is also quite broad in that it applies to any tender offer of any security of any company, public or private.  These provisions are most certainly enforced!  Computers can catch them or ex-lovers can tip off investigators.


Chiarella itself established that 10b-5 is a fraud rule.  That was amplified by SEC v. Dirks.  The latter case held that the tipper must have violated his duty of loyalty to the company and must have received a benefit, broadly defined, from doing so.  A breach of the duty of care of the tipper to the company is not enough.


In a prior exam, the CEO of an NYSE company went with an assistant to a local café, ordered too much to drink, and talked way too loud to his assistant.  In the booth next to him was Mr. X, who owed no fiduciary duty to the company or the two individuals.  He overheard, and he went out and loaded up on the company’s stock.  10b-5 does not apply to this situation because Chiarella and Dirks, insofar as 10b-5 is concerned, overrule the mere possession test of Texas Gulf Sulfur.  This is due to the literal language of 10b-5 because it’s a fraud statute.  Justice Powell explained that journalists and others perform valuable functions in society and in the securities markets.  If a journalist gets a company official to say more than he should, with the company official violating only his duty of care to the company and getting no benefit, and the journalist spreads the word, then society is all the better for it, so the journalist shouldn’t be punished.


Consider 14e-3 in this situation.  The president and his executive assistant were discussing a bigger NYSE company that was going to pick up the subject NYSE company in a statutory merger at a big premium.  This was confidential.  Nobody knew it except the two companies and their agents.  Both § 14(e) and 14e-3 are limited to tender offers.  So the question is whether a statutory merger or sale of all assets is ever a tender offer.  The answer is no, because they are both non-coercive in that the shareholders and board of directors must vote on it.  A tender offer is more hostile and doesn’t require shareholder or board approval.  So 14e-3 does not apply either.  However, what Mr. X did in soliciting shareholders was probably a tender offer and there was no compliance.


If 14e-3 had been adopted when Chiarella was decided, then Mr. Chiarella would have run afoul of 14e-3 because the undisclosed information related to a tender offer and under 14e-3 the mere possession test of Texas Gulf Sulfur, in that limited circumstance, is reinstated.  That is to say that the plaintiff need not prove fraud, breach of fiduciary duty of loyalty, or benefit by the tipper.  Is 14e-3 a valid Rule?  Two big cases say yes, and Shipman says they’re right.  The first is United States v. Chestman, a criminal case from the 1980’s from the Second Circuit.  In this case, a wife of a top executive in New York was told by her husband that there was going to be a tender offer.  She called her daughter and shared this, telling the daughter up front, “Don’t tell anyone else.”  (Never do that!)  The daughter then shared the information with her husband.  The daughter did not tell the husband that it was highly confidential.  The husband shared the information with his stock broker and doesn’t tell the broker it’s confidential.  So the broker goes out and loads up on the company’s stock for himself and his customers.


There followed a criminal prosecution under 14e-3 and 10b-5 of the stock broker.  The husband was granted immunity to testify against the broker.  There was a jury conviction on both counts.  The case came up before the Second Circuit.  As to 10b-5, the court applies the Dirks-Chiarella test.  They hold that the government didn’t prove that the daughter and the daughter’s husband were fiduciaries to each other, and since the daughter didn’t get the husband to promise to keep it confidential before she told him, the 10b-5 “chain” was broken, and thus the broker’s conviction on the 10b-5 count had to be overturned.  But as to the 14e-3 count, they held that the Rule is valid.  They ruled that no fiduciary duty need be found.  The conviction was upheld and the sentence was not reduced.


There are courts that would hold that there is always a fiduciary duty between husband and wife under a status concept so long as they are living together and they’re not contemplating divorce.  What the Court of Appeals held was that they wouldn’t buy the status argument.  They admitted that fiduciary duty and confidential handling of information can flow from one of two sources: (1) status, which is the most common, or (2) contract.  For example, if the wife had said up front: “Husband, this must be kept in the strictest confidence, and I’ll only tell you if you promise to keep it secret”, then there is a contract.  By contrast, if a cab driver overhears you talking on a cell phone about anything but a tender offer, the cabbie can pig out on that stock.  On the other hand, if you tell the cab driver that you’re about to make a highly confidential call, ask him if he will keep it confidential, and he says yes, then there is a contractual fiduciary duty, and if the cab driver pigs out, he violates Rule 10b-5.


A U.S. Supreme Court out of the last five years upheld 14e-3.  In the process of doing so, they also discussed 10b-5.  A senior partner in a Minneapolis law firm had embezzled $500,000 from clients and was about to be found out.  He needed a quick fix.  A client of the firm was planning a confidential tender offer at a big premium for the stock of X, Inc.  He bought a bunch of options on X, Inc. in his own name.  The SEC, as to the public trading markets, now heavily relies on computers, though it wasn’t always so.  In Justice Ginsburg’s opinion on 10b-5, she noted that the alleged wrongful sale or purchase must be proven to be on account of the inside information.  She held that it was in this particular case.  The language of this opinion led to the new rules 10-b5(1) and 10-b5(2) where you can send notice to the SEC that you’re going to sell and if, at the time, there is no undisclosed, unfavorable information, but such information develops after that, you can still go ahead and sell under certain circumstances.


Also in the last five years, Regulation FD (“fair disclosure”) under the Securities Exchange Act of 1934 relates to publicly reporting companies.  That’s because it’s a rule under § 13, the reporting provision.  If an officer or director spills the beans on undisclosed information, then within two days you must publicly file a report with the SEC as to “what the beans are” so that everybody can play on a level playing field.  This was very controversial!  The SEC chairman barely got it passed.  The deciding vote came in from one of the commissioners, who joined only after the Commission put in a big exemption from the Rule: a bona fide member of the media doing bona fide media work to whom the beans are spilled does not have to comply with Regulation FD.  The holdout commissioner was correct, in Shipman’s opinion.  He didn’t want the rule challenged on First Amendment grounds.


Since the 1980’s, there have been a number of amendments to the Securities Exchange Act of 1934 on insider trading.  None of the statutes define insider trading; Congress has left that to the courts.  However, there are a number of very important provisions.  One of them is that lawyers, CPA firms, investment bankers, and the company itself must avoid reckless conduct in safeguarding material, undisclosed inside information.  In one of Shipman’s exam questions, a guy is a partner in a law firm.  His son goes to the office and the father takes a phone call while the father is in the office.  The call is from someone planning a big tender offer.  The son is a party animal!  He’s also quick-witted.  He’s a finance major.  He leaves and pigs out.  How do we advice the senior partner of the law firm when the FBI appears?  First, we tell him to be nice to the FBI.  Next, we advise him that the partner was reckless in talking in front of his son.  Don’t share confidential information with anybody.  The partner is going to pay treble damages!  In a civil action, the SEC can triple the ante!  The partner must come up with the big money to get the SEC and FBI off of the firm’s back.  You have to give it to him straight, according to Shipman.  It’s his problem, not the firm’s.  Also, all law firms have very careful written procedures on buying and selling securities that you must adhere to.  If you work for a firm that does a lot of takeover work, the spouse should invest in mutual funds, not stocks.  Pigging out is a basic human instinct!


Duties of care of loyalty and of full and fair disclosure


These three duties overlap heavily.  Federal Rules of Civil Procedure 23 and 23.1 have to do with kinds of class actions.  23.1 deals with a shareholder bringing a suit on behalf of the corporation.  The duty doesn’t run to the shareholder personally, but it does run to the corporation.  It’s a lot harder to start a Rule 23.1 action off the ground than it is to get a Rule 23 action started.  Under Crosby v. Beam, as to close corporations in Ohio, one of the express holdings is that if it’s something that before Crosby you had to assert derivatively, you can now go directly if it’s a close corporation.  Why might you want to avoid a class action?  Class certification is a big hurdle on things like preemptive rights.  You’d rather just bring it directly.


This is an area of heavy legislative challenge.  The 1995 Act, as to fraud actions involving securities, put a whole new layer of restrictions on class actions or quasi-class actions.  A quasi-class action is where twenty individual shareholders bring twenty different suits on the same transaction.  The 1998 Act expanded this, saying that if the class action involving fraud and securities is in the state courts under state law, then the defendants can remove them to the (more defendant-friendly) federal courts.  The newest kid on the block, about to be born, is a bill before the Senate this week.  It’s a class action bill recently passed by the House.  It’s broader than securities and says that as to many class actions entirely under state law, even if only negligence is alleged, the defendants may remove to the federal courts.  This is very popular in the House, but not popular with the federal bench.  In the Senate, it’s going to be close.  Shipman predicts it will become law eventually.  At the state level, there has been a lot of tort reform action, including in Ohio.  A massive bill just passed in Mississippi.


Smith v. Van Gorkum – This is duty of care only.  The directors were the cream of the Chicago business community.  The action was brought as a class action after the merger rather than a derivative action.  The class action was approved by the Chancery Court and the Supreme Court does not upset it.  There was no special litigation committee to pass on the action.  The old man had met with Pritzker, of medical school fame.  They went to the opera.  Pritzker said: “I’ll make cash merger offer to all of your shareholders at a 33% cash premium and I want you to support it.  I want the board to agree not to shop it around.”  The company counsel tells him that if he doesn’t accept the offer, he could be held liable in a shareholder derivative action.  So about an hour later, the deal is green-lighted.  Keep in mind the big premium and the sterling reputation of the Pritzkers.  Because of the no-shop clauses, they never sought an alternative deal.  The deal was submitted to shareholders, who overwhelmingly approved it.  The merger closed, and then this action was brought after the fact.  The chancellor threw the case out under the business judgment rule, saying that the board met and considered the deal and thus it was fine.


This case hit the corporate world like a bombshell because this is the way boards did business before this case!  Before Zahn v. Transamerica, the first big 10b-5 case, insider trading was rife!  The Delaware Supreme Court says that the business judgment rule can be shredded by the plaintiff showing (1) fraud, (2) ultra vires, (3) bad faith, (4) arbitrary or capricious action, or (5) waste (recklessness by the directors).  But then they added: (6) gross negligence on the merits, and (7) procedural gross negligence.  Here, the Delaware Supreme Court said that there was procedural gross negligence by the board, which gets us into the role of shareholder approval in a public company in Delaware and Ohio.


In Delaware, the rule, at least since the 1940’s has been that if holders of a disinterested majority of shares, after full and fair disclosure up-front, vote not to sue or to approve or ratify, then upon such approval the business judgment rule is broadened.  In Delaware, if you have such approval and creditors aren’t hurt, then unless the plaintiff shows (1) fraud, (2) ultra vires, (3) illegality, and (4) waste, then the shareholdersjudgment rule applies and the plaintiffs are tossed out of court.  In Ohio, it’s even broader.  Claman v. Robertson came from the 1940’s in the Ohio Supreme Court.  The Ohio Supreme Court held that even if there were fraud upon the company, if the fraud were openly and fully discussed in the proxy statement asking for the shareholders not to sue and shareholders holding a disinterested majority vote not to sue, then it will be okay.  This didn’t work to save the defendants here because the proxy statement to the shareholders was riddled with material disclosure violations.


A few final remarks on 10b-5: when a close corporation comes under Crosby v. Beam, you need not rely on federal law.  He believes that fraud is not required because the fiduciary duties are so intense.  The absence of fraud is important because in the last 25 years, the federal courts have required extremely heightened pleading for fraud.  Also, the 1995 Act reinforces the requirement as to fraud class actions concerning securities.  If you can plead something lesser than fraud, do it, because it’s much easier to make out a case.  In addition, if the defendant has insurance, remember that negligence and gross negligence will be covered by the policy, while hardcore fraud will not be covered.


We’re leading up to a defense both to duty of care and duty of loyalty actions: the defense of special litigation committees, composed of truly independent outside directors studying the matter and concluding that it ought to be stopped.  We also look at the defense on the merits of the shareholder decision not to sue.  That will work under either duty of care or duty of loyalty.  It requires that you can get disinterested shareholders holding a majority of the stock to vote with you after full and fair disclosure up-front.  You also must show that creditors are not harmed.  This is the non-unanimous shareholder ratification rule.  There is also a unanimous shareholder ratification rule.


Let’s say three siblings each hold 10% of the stock of a Sub C company.  The father owns the remaining 70%.  The three siblings are the directors and officers and they set their own pay.  In the absence of a defense, if the father starts an action under Crosby v. Beam or under Rule 23.1, the sibling’s only defense to the reasonableness of their compensation is overall reasonableness.  That is always possible.  If the defendants can show overall reasonableness, both in disclosure and on the merits, and creditors aren’t harmed, then they have a defense.  Note that this is a defense on the merits.  A little company like this would not have outside directors who could set up a litigation committee.  What would we advice the siblings?  We would advise them to hold a joint shareholders’ and directors’ meeting and get all four people to vote “yes” for salaries.  As long as there is full and fair disclosure up-front and no creditors are harmed, this is an absolute defense.


Here is another defense lawyer’s trick.  Defense lawyers have tried to bifurcate or trifurcate the trial.  If you can convince the judge to do that up-front, then in the preceding example the defense can be asserted early.  If the defendants win, they are home free because it’s a total defense.  This has recently been used in the 1990’s Supreme Court Exxon case.  The case came out of Hawaii.  Exxon had a huge tanker serviced under a contract with a dry-dock company.  That company was negligent in servicing the Exxon ship, and as a result, the ship developed serious problems upon leaving the dock.  The captain forgot to map where he was!  Because the captain didn’t know where he was, the ship ran aground and caused a huge amount of damage.


Exxon sued the dry-dock company in negligence and in contract.  The attorney for the dry-dock company convinced the judge to bifurcate, saying: “There is an overriding legal principle that if ordinary negligence by the defendant is followed by gross negligence on the part of the plaintiff, then there is no legal cause, and thus the dry-dock company has a 100% defense.”  The judge granted the motion and found that what the Exxon captain did was gross negligence, and under respondeat superior, Exxon is bound by the captain’s actions.  He agreed with the defendant’s legal principle in negligence and he also said the same reasoning applied to the warranty count on the express written contract.  Even if there is a warranty, the judge said, if the plaintiff reacts with gross negligence then the company has a 100% defense.


The U.S. Supreme Court held that the trial court judge was totally correct on the merits.  What the defense lawyers did here is get to the “nub” of the matter quickly.  Within each “half” of the case, they can use 12(b)(6) and summary judgment.  The court did not have to hear testimony about damages.  They simply looked at one part of it.


In the example above, what is done by the three siblings will not bind the Internal Revenue Service because it’s a Sub C company.  If the Internal Revenue Service comes calling, you will have to persuade them.  However, the brothers are very much protected.  One of the requirements is that creditors are not hurt.  What if the brothers are paid out much more than they’re worth?


Marciano v. Nakash – In Delaware, as well as in some other states, courts have held that the ultimate handling of conflicts of interest is up to the court.  If a party meets those statutes, the court just pushes the burden of proof back to the plaintiff.  A case to that effect was Comolli v. Comolli from the California Court of Appeals.  In this case, we have the flip side.  This is a close corporation with two 50% shareholders (different families).  There are no independent, outside directors on the board.  One family runs the company.  The company runs into financial troubles.  The family running the company, without consulting the other family, lends the company money.  The company goes insolvent and a state court receivership is started in Delaware.  The other family objects because the family running the company could in no way approve the transaction under Del. § 144 since they held only 50% of the stock and there were no independent outside directors on the board.  The family out of power thus said that the claim for the note is per se bad.


The Delaware Supreme Court, very consistent to their earlier case, says that the defense of overall reasonableness both in disclosure and on the merits with no harm to creditors is always available to a defendant in a duty of loyalty action.  Here, the chancellor examined the loan carefully and found that the loan was reasonable overall.  There was no fraud or bad faith.  The court-made exception for overall reasonableness that preceded the statute is not touched by the statute.


Heller v. Boylan – This case references the famous case of Rogers v. Hill from the U.S. Supreme Court of the 1920’s.  George Washington Hill was the president of American Tobacco Company in New York City.  He was a “man about town”.  In 1909, American Tobacco, a New Jersey company, had gone to the shareholders and gotten them to approve, in the bylaws, a cash bonus plan based on tables, that is, “if net profit is over x, then set aside z%” and so on.  American Tobacco proved extremely profitable over the years and the cash bonuses went through the roof.  A minority shareholder brought a shareholders’ derivative action.  There was no committee of independent, outside directors to pass on it, so it went to full trial.  The case went in the federal court on diversity jurisdiction, and was decided, pre-Erie, under federal common law (Swift v. Tyson).  The U.S. Supreme Court held, similar to the Delaware courts, that even with full and fair disclosure up-front, approval of a disinterested majority of shareholders, and no injury to creditors, then if it amounts to waste, it’s no good.  Hill objected that the “money machine” can’t be turned off because the cash bonus plan was in the bylaws.  The Court said that it was part of the duty of the directors to recommend an amendment to the shareholders that is contrary to the directors’ interests.  In Delaware, the doctrine of waste is now well entrenched.


In the Delaware Supreme Court in the past three years, there was a case involving Walt Disney.  Michael Eisner hired an assistant weirder than him.  They didn’t get along well, and he decided to terminate the assistant.  They came up with a termination package and it was put before the board for approval.  Most of the board consisted of independent, outside directors.  Before trial, the Delaware Supreme Court determined whether the pleadings were good enough.  They said that waste is alleged.  The case was sent back.  There was also a case involving The Limited recently in the same court.  The Limited is a big NYSE company, and there are a lot of social friends of Les Wexner on the board.  He entered into a conflict of interest transaction with The Limited, and the independent directors blessed the transaction.  The chancellor examined the exact relationship of each of the alleged outside directors and found, contrary to first appearance, they had very significant business dealings with Wexner.  The case was remanded for trial, and The Limited later settled the case.


Sinclair Oil Corp. v. Levien – Sinclair USA is a big oil company.  It owned about 93% of Sinclair Venezuela.  The latter was, itself, a public company with several hundred shareholders.  The directors and officers of Sinclair Venezuela were all directors, officers, or employees of Sinclair USA.  Sinclair USA needed money.  The directors of Sinclair Venezuela declared very good dividends over a number of years so that the parent corporation could replenish its bank account.  Here we have a “man bites dog” lawsuit!  It’s not a suit to force declaration of dividends, but rather a suit by the minority shareholders that the payment of these dividends hurt Sinclair Venezuela because they had business opportunities that they could have taken advantage of if not for the dividend policy.  The threshold question was whether the case should be judged under conflict of interest analysis.  If you do, Sinclair USA must prove overall reasonableness.  On the other hand, is the case to be judged under the business judgment rule where the plaintiff, in order to stay in court, would have to show fraud, ultra vires, illegality, arbitrary action, or gross negligence to “shred the shield”.


The court pointed out that the dividends did not violate any bank loan agreement or the Delaware restrictions on dividends (that is, you must have surplus and the dividend can’t leave you cash flow insolvent).  The court said that even though it may look like a conflict of interest transaction, if the parent received nothing out of it except a ratable return on each share of its stock, equal to the ratable return each minority shareholder received on their stock, then it’s not governed by conflict of interest principles, and you must look at the business judgment rule!  On the merits, they held that there is no reason to shred the business judgment shield.  There were a few contracts that the parent had entered into with the subsidiary that the parent wasn’t performing.  The court held that there was a conflict of interest there.


Weinberger v. UOP, Inc. – Both of these companies are NYSE public companies.  The parent owned 51% of the stock of the subsidiary from an earlier friendly cash tender offer.  The parent has extra money to invest and it’s looking for something to invest in.  The financial and operating folks figure that if they can get the other 49% of the subsidiary at the same price per share they paid for the first 51% then it would be a great investment.  At the time of the friendly tender offer, the board of directors of the subsidiary contained a majority of independent outside directors.  But at the time of the controversy, only three out of the seven board members were independent.  The parent wanted a cash-out merger, meaning that the subsidiary would be merger into the parent for cash and the parent would pay cash only.  This invoked the proxy rules at the subsidiary level since the subsidiary was an NYSE company.  The Securities Act of 1933 was not applicable to the transaction because cash is not a security either for federal, Ohio or Delaware law.


Was Rule 13e-3 applicable to the situation?  This is the “going private” rule.  It applies only to SEC-reporting companies.  It was not in effect at the time, but let us describe the effect it would have had.  The thrust of the rule is that if you have a public company with public shareholders having equity securities and through one or more transactions with an affiliate those public shareholders who did have equity securities end up with no equity securities then the rule applies.  Note that if the rule had been in effect at the time, it would have applied.  The rule says that, in addition to all other disclosure, the board of directors, in the proxy statement, must expressly state whether, in their opinion, the transaction is fair to minority shareholders.  The board of directors must give detailed reasons for their conclusion.  The Rule goes on to say that the directors cannot delegate this task to an investment banker, though they will hire an investment banker to help them.  This is a high burden because the Rule goes on to state that projections, forward-looking information, appraisals, and “soft” data must be consulted.  You must go way beyond GAAP!


The parent’s financial department had worked up tables indicating that the stock of the subsidiary would be worth about $22 or $23.  They wanted to pay $19 which is what they paid before.  The parent went through the books and records of the subsidiary without the consent of the board of directors of the subsidiary.  They did their due diligence without the consent of the board.  The information of the subsidiary belongs to the subsidiary, not the parent!  They also did not set up an independent negotiating committee.  They had three outside directors.  The court says that they should have appointed an independent negotiating committee who would acquire independent counsel, investment bankers and CPAs and that if they had done all that, the business judgment rule would have saved the parent.  There was no approval by a disinterested majority of shareholders, because a majority of shareholders were interested!


Self-dealing is a serious conflict of interest.  You can revert to the more hospitable business judgment rule if you set up an independent negotiating committee at the subsidiary, but in this case the parent did not.  There is no other defense available.  Therefore, the parent has the burden of pleading and proving overall reasonableness.  Overall reasonableness includes reasonableness on the merits as well as reasonableness of disclosure.  The parent’s records showed that they believed the stock was worth $22-23.  That was never disclosed to anyone at the subsidiary.  The defense was not made out, and thus the case was remanded to determine damages.  If you proceed under duty of loyalty, causation-in-fact can often go by the wayside.  You also do not need to show fraud or bad faith if the plaintiff shows a serious conflict of interest.  In that case, it is up to the defendant to make out one of the four or five applicable defenses.  If the defendant fails to make those out, the defendant is going to be a big loser.


What’s the fallout?  Rule 13e-3 would be applicable today.  The federal disclosure requirements don’t add a lot to the Delaware requirements.  There are two Sixth Circuit cases, Nationwide v. Howing from the 1970’s that discuss Ohio fiduciary duty law and Rule 13e-3.  The casebook tells us that we’re in the area of “squeeze-outs”, or cash-out mergers.  The casebook gives us a number of cases.  In a number of jurisdictions, there are some very strict anti-squeeze-out cases.  But Shipman suggests that where there is full and fair disclosure up-front (no fraud), there are instances where a squeeze-out is fair.


Consider a Washington Supreme Court case from the 1950’s, Matteson v. Zielbarth.  A small startup corporation was about 63% owned by one person who worked there full-time.  The other guy owned slightly more than one-third, enough to block a merger.  Business was rough, and the company was about to go under.  The fellow running the company did some shopping around and found Z, Inc., which thinks they have a pretty good business.  If the minority shareholder will agree to certain terms, Z, Inc. will swoop in and take over the business, continuing to employ the fellow running the company.


It is stipulated that the fellow running the company was honest and that the salary he was receiving was reasonable.  The salary being offered by Z is also stipulated to be reasonable.  The minority shareholder decided to be difficult.  The shareholder decided that he wanted a portion of the money the main guy gets or else he would use his power to block the deal.  The guy running the company, with the consent of Z, Inc., set up a new company, N, Inc., and merged the old company into the new company with him getting stock and with the minority shareholder being cashed out.  There was no fraud; everything was done on the up and up.  There was a strong business purpose.  Shipman believes that the deal was reasonable.  The court says that where the person being frozen out has an appraisal remedy, if he waits until after the merger to sue, then he has no damage remedy (as long as there is no fraud).


There are three Ohio cases we should know about in this area: first, there’s the case of McConnell dealing with the Bluejackets from the Court of Appeals, after 1995.  McConnell and the Wolff family got together to get an NHL team for Columbus.  They didn’t have an arena yet.  They went to the mayor and City Council.  McConnell, the Wolffs, and Lamar Hunt formed an LLC and got a ballot initiative for a half-percent sales tax to build an arena.  The ballot initiative was killed partly by Bob Fitrakis raising up a storm on talk radio.


They still wanted a team!  They went to the NHL and Nationwide Insurance.  The head of Nationwide indicated that they would consider building the arena and leasing it to the team, which is what ultimately occurred.  Hunt wasn’t thrilled with this change, and decided to block the transaction.  McConnell and Wolff formed a new limited partnership and went ahead.  Hunt sued on corporate opportunity and freeze-out.  In the LLC agreement, a very important clause said that any one of the members could compete with the LLC.  That is often included in real estate LLCs because real estate folks often have side ventures.  The Court of Appeals in Franklin County held that because of the clause in the LLC agreement, the transaction was reasonable.  This is one of the leading cases in Ohio on Business Associations law.  The opinion talks about Crosby v. Beam and other important Ohio cases.


When is the appraisal remedy a shareholder’s sole remedy?  The Ohio Supreme Court decided two cases on this issue on the same day in the early 1990’s.  The cases mean different things to different people.  One was Stepak v. Schey and the other was State v. Maraschari.  Here is Shipman’s interpretation: when one minority shareholder sues in advance to block a deal, the fact that he would have an appraisal remedy at the end does not toss him out of court.  If you sue to enjoin, you may have to post a big bond.  When you sue afterwards and there is no fraud or major disclosure discrepancy, the cases suggest that in the absence of ultra vires, you can’t get damages, rather, you must elect the appraisal remedy.


Corporate opportunity


This grew tremendously in the 20th century.  In 1910, you had to prove an expectancy in the corporation in order to prove corporate opportunity.  That changed in the 1930’s with one of the most famous cases ever decided: Guth v. Loft, out of the Delaware Supreme Court, which involved Pepsi.  The decision was very pro-plaintiff.


Another case was Irving Trust Company v. Duetsch, which was from the Second Circuit in the 1920’s.  There was a struggling company.  The DeForrest patents come on the market.  The controlling person doesn’t have enough money to buy them from the holder.  But the controlling person thinks that he can rake up the cash in a couple of months.  He wants to tie up the patents, so he has the company sign a contract to buy the patents with the closing several months in the future.  If he couldn’t raise the money, he figured it would be the company on the line and not him.  But his goal was to raise the money.  He worked hard and succeeded.  He caused the company to assign the contract to him.  He closed on the contract and made a lot of money.


The company went bankrupt, and the trustee in bankruptcy is the universal successor to everything the company had, including causes of action against affiliates.  So the trustee in bankruptcy sues.  It’s a close case because the law says that a wealthy director, officer, or controlling person does not have lend money to the company when it wants to take an opportunity.  In this case, the court held that as a prophylactic principal that where the company has obligated itself by signing a contract, the controlling person cannot use the defense that the company didn’t have the money.  If the controlling person takes over the contract and it’s good, then the company or the trustee in bankruptcy will sue in constructive trust, damages, and accounting.


The case of Miller out of the Minnesota Supreme Court from the 1960’s does a good job summarizing the law of corporate opportunity from the first half of the 20th century.  The early cases aren’t fully consistent.  The court’s reaction is to say that when it comes right down to it, the test is really just whether what the officer or controlling person did was reasonable.  In the 1970’s, the ALI stepped into the fray.  They come up with a Restatement which says that if the controlling person or officer or directors does not disclosure what he is going to do at the outset to the other directors, officers and shareholders, then he has per se violated his fiduciary duty and the corporation can sue him.


Northeast Harbor Golf Club, Inc. v. Harris – This case follows the Restatement.  Delaware, within the past 25 years, has expressly rejected the ALI Restatement and they stick with Guth v. Loft.  They probably would not be unhappy with Miller.


More on conflicts of interest


Let us finish up the material on conflicts of interest, then we’ll look at partnerships, which we’ll look at today, tomorrow, and the day after.  We’ll do limited partnerships and LLCs on Thursday.


Perlman v. Feldmann – This is a highly egalitarian decision that came as a big shock to the corporate community.  There were earlier cases dealing with the sale of a control bloc to a looter.  The big case was Gerdes v. Reynolds from the Supreme Court of New York in the 1930’s.  What were the facts back in that case?  There was a liquid pool of money in the corporation.  The corporation was managed, under contract, by an investment company.  The investment advisor had two classes of stock: (1) the voting stock, and (2) non-voting stock.  A purchaser appeared for the voting stock, offering much more than liquidation value for the stock.  The officers, directors, and controlling person making the sale did some checking of the proposed purchaser, but not enough—they were negligent.  The stock was sold.  The purchaser took out the old board and put in his guys, as you would expect.  The new guys looted the investment company!  The trustee in bankruptcy brought suit in state court against the controlling shareholder and the officers and directors of the seller.  It was held that the trustee in bankruptcy could get a double recovery.  He could recover jointly and severally the control premium that the purchase paid for the voting stock.  Next, in ordinary negligence, the trustee in bankruptcy could recover from the same group.  All jurisdictions follow the looting cases.  Within the past twenty years, a Delaware decision has expressly approved them.


Perlman itself is a diversity case in the Second Circuit under Indiana law.  The facts took place during the Korean War.  At time, especially during war, wage and price controls are imposed by the federal government, and the Korean War was one of those times.  When those controls are imposed, you get startling results concerning the exemptions.  In both World War II and the Korean War, employee fringe benefits such as pension and profit sharing plans as well as Blue Cross/Blue Shield were exempt from wage and price controls.  Furthermore, government contractors making those payment were allowed to recoup them as cost from the federal government.  The federal government treated those costs as legitimate.  Out of these wars sprouted employer-paid Blue Cross/Blue Shield and pension/profit-sharing plans because during both periods companies needed every able-bodied worker they could find and they could not raise the wage level to attract more workers.  They couldn’t raise wages, but they could pay fringe benefits.


The same thing was true with Perlman in the Korean War.  There were huge federal contracts left for big companies like GM.  All of these contracts involved using a lot of steel.  There was not enough steel to go around.  The end users could not raise the price that they paid for steel, but the price of stocks and bonds of corporations was not subject to the wage and price controls.  Therefore, if you were an end user like GM and you were having trouble getting steel, you would get together with another end user and try to buy mid-sized steel companies by buying the controlling bloc of stock.  The end users who bought stock from the controlling family did not loot or financially abuse the company.  They paid a fair price by the steel.  We know it was fair because it was set by central planners (ha ha).  The case was brought originally as a shareholders’ derivative action, which would indicate that the plaintiff thought the recovery ought to go into the corporate treasury.


In the course of the Second Circuit opinion, we see a strange “mid-course correction”: the opinion starts out by saying that “control is a corporate asset” and that the controlling person has misused or misappropriated it for himself.  Then, towards the end of the opinion, the court oozes into the remedy: they decide to share the control premium with the minority shareholders, indicating that this right can be asserted either derivatively, as a duty owed to the corporation (under FRCP Rule 23.1) or directly, as a class action (Rule 23) on the basis of duties owed to the minority shareholders themselves.  The court could have cited a case that we started the course with, Speed v. Transamerica, for that exact proposition (and Shipman says they should have).  The California cases expressly say that the cause of action is AC/DC: it can be asserted either or both ways.


Since this case, the New York courts have said that if there is no looting and no fraud by the corporate shareholders, then the controlling bloc of stock is his and it’s prerogative to get as much money as he can.  The New York rule is discussed in Wellman v. Dickinson out of the Southern District of New York.  It is found in F.Supp. from the 1960’s.  New York law is followed and discussed.  Speed v. Transamerica is the first case that says controlling shareholders owe special duties both to the company and to the minority shareholders.  As the century goes back, we’ll get more egalitarian in most states.


In California, we have one of the leading cases in the United States: Brown v. Halbert.  It’s a published opinion by the California Court of Appeals from the 1960’s.  What were the facts?  Mr. X owned about 80% of a prosperous stock savings and loan in the 1970’s before the air went out of S & L stocks.  Mr. Purchaser approached Mr. X and said: “Merge your company into mine in a statutory merger, and I will pay you and the minority shareholders a certain number of dollars per share.”  A statutory merger or sale of all assets tends to spread the control premium out over all shareholders on a per share basis.  Mr. X said: “No way!  Can you make me another offer?”  Mr. Purchaser says: “I think I see what you’re driving at.  I’ll buy your 80% at more bucks per share and then we’ll work together to get the minority shareholders to sell out at a lower price.”  They did so and didn’t inform the minority shareholders what had happened.  Mr. X helped Mr. Purchaser get the minority shares at a much smaller price per share.  The California Court of Appeals holds that the control premium must be spread out evenly for two reasons: (1) Mr. Purchaser had originally wanted to tango in an egalitarian way that would have paid everyone the same per share.  (2) This was botched by Mr. X, who additionally committed fraud in helping get Mr. Purchaser the rest of the stock at a cheaper price.  This case cites Perlman v. Feldmann with great approval.


The next big California case was from the California Supreme Court: Ahmanson.  Mr. Ahmanson lived in San Diego.  Sometime during the 1930’s, he started a stock savings and loan.  He was a financial genius and the S & L did very well.  He owned about 80% of the S & L.  It was not publicly traded, and he wanted a public market so that he and his controlling shareholder buddies transferred their stock to Newco.  That can be done tax-free under Internal Revenue Code § 351.  Newco then owned about 80% of the stock S & L and Newco made an IPO that made Mr. Ahmanson financially liquid as well as rich.  Before this, he was rich, but his money was tied up in the company.  Meanwhile, Ahmanson tried to pick up the minority stock with very lowball offers.  The minority shareholders generally had enough sense to reject him.  They still owned stock only in the S & L but not Newco.  However, the worth of the S & L was now in the public domain!


A suit was brought and it reached the California Supreme Court.  They discuss Perlman and Brown v. Halbert.  The cause of action could be asserted either directly, derivatively, or both.  Was it a breach of the fiduciary duty to form the holding company and not let the minority shareholders in on equal, per share terms?  It was held that this was probably so, but the case was tried below under an erroneous legal standard.  The case shall be sent back to the trial court, which will be told that the controlling shareholder will win if he can show both of two things: (1) there was a valid, bona fide business purpose for excluding the minority shareholders, and (2) the purpose could not have been served by less drastic means.  Of course, he couldn’t prove that.  He died, and his estate settled the suit.  Here is where it gets interesting.  For tax purposes, the Internal Revenue Service often recognizes two important concepts: (1) minority discount, and (2) control premium.  Compute the value of 100% of the stock.  Multiply the result by the percent holdings of the minority shareholder.  Apply to that figure a discount from 15-40% recognizing the minority status.


In Delaware appraisal law, they have said no to a minority discount on a closely-held minority stock interest.  In Ohio, the situation is unclear.  There are opinions indicating that where it is a closely-held concern, if you elect appraisal rights, they may apply that.  If you buy 8% of a company that is closely-held, then the regulations will be amended to say that the stock will be redeemed when the buyer dies and to establish a fair market value “without regard to minority discount”.  Why do we put this in the regulations?  There are Massachusetts cases that indicate that this may not happen unless you put this language in the regulations.


The Internal Revenue Service was in dispute with the Ahmanson estate.  He had the controlling bloc of Newco.  Let’s say that Newco stock was selling at $45 per share.  What does that mean?  It is the value of an atomized 100 share bloc having no real factor in control.  That’s why most tender offers are at well above the NYSE price.  They say to Ahmanson’s estate that a control premium will be added because he has such a big bloc.  According to the newspapers, the statute of limitations for a refund claim had not run, and they used this doctrine to get around the control premium!  There’s an interconnection here between tax and finance (and “everything else”).  Nobody knows what the current situation in Ohio is.  Somebody buying will not pay a control premium, with certain exceptions.  They fear that they may have to pay twice because of these doctrines.


Honigman v. Green Giant – Why is the Green Giant jolly?  Green Giant is a very old company, and the founding family took Class A stock that on a share-for-share basis was just the same as Class B, except that Class A carried 1,000 votes per share as opposed to just one vote per share.  Some call this kind of stock “founders’ stock”.  If the company were liquidated, the Class A stock held by the family would only get about 2-3%.  However, they control.  The family talked with investment bankers and proposed this deal: call a shareholders’ meeting to amend the articles, under which on a ten year basis we can exchange our Class A shares for Class B shares and get our equity participation increased from 3% to 9%.  In other words, they would be paid to be egalitarian.  This proposition was put to the shareholders.  The proxy statement had full and fair disclosure.  There was overwhelming approval by the Class B holders.  Mrs. Honigman was a shareholder in Detroit who didn’t like this.  She went to Milwaukee to bring suit in federal court in a diversity case.  She argued that Perlman v. Feldmann gave her an inalienable right to stop this transaction.


The court held “pish tosh”, there is no fraud, no damage to creditors, no waste, no illegality, full and fair disclosure up-front, and an overwhelming majority voting for it.  Therefore, under the Delaware standard, with shareholder blessing, Mrs. Honigman hasn’t a leg to stand on.  She argued that control was a corporate asset and it ought not be subjected to this kind of waiver.  The court laughed at her argument.  It is one of the most important cases ever decided in the Perlman v. Feldmann chain.


In Ohio, we have one provision that you should pay close attention to: R.C. 1701.59(D) combined with .59(F).  .59(D) generally says: as to duty of care owed by directors to the company, you can’t hold them liable in money damages unless the plaintiff proves recklessness or intentionality.  We have noted before that .59(D) doesn’t apply to purely prospective injunction relief.  It also doesn’t apply to hardcore conflict of interest transactions.  But many companies today will have a majority of independent, outside directors.  On the other hand, R.C. 1701.59(F) says that .59(D) does not apply to a controlling person acting as a controlling person—the Tomash analysis.  If a company is not a public company and the independent outside directors approve the transfer of a controlling bloc of stock to somebody, then the shield of .59(D) does not apply to that transaction.  That’s a very important section!  If it’s a public company, then that provision of .59(F) doesn’t apply.


There are two other places where Perlman v. Feldmann doesn’t apply.  You have an amalgamation.  The acquiring company enters into contracts with many of the controlling persons of the acquired company.  Does this violate conflict of interest law?  Does it violate Perlman v. Feldmann?  The answer is pretty well developed in Delaware law: if the employment contracts are reasonable and are fully and fairly disclosed up-front, there is no problem with the transaction.  Why is this the correct resolution, according to Shipman?  In an amalgamation, one of the first things that the purchasing company wants to button down with either employment contracts or covenants not to compete is that the goodwill will transfer: the controlling persons won’t turn around and compete with you.  The employment contracts or covenants not to compete are crucial.  If you don’t get them, it can be legal malpractice.


Next, if you look through Delaware law of the last thirty years, you’ll find that if there is a good reason for treating the controlling person a little differently from others, it will be upheld if you can show there is a sound reason for doing it and that it is reasonable and fully disclosed up-front.  Let’s say Smith owns 19% of X, Inc., which is an NYSE company.  GM wants to amalgamate X, Inc. into itself in a statutory merger using its own common stock as the consideration.  GM wants to button the deal down as early as possible, and they talk to Smith and the directors of X, Inc., saying: “Under R.C. Chapter 1704 and under the poison pill, if the board of directors agrees to this, we can buy Smith’s stock right now and we’ll buy it for our common stock using Rule 506.  We agree that within seven months we will cause X, Inc. to be merged into GM for GM common stock at the same rate that Smith got the stock.  If you research Delaware law, you will find that’s okay.  There is no doubt that it’s okay under Ohio law.  Both sides of the transaction will be tax-free under Internal Revenue Code § 368(A)(1)(a).  Generally, acquiring corporation outside of New York, they don’t want to chance it and they will comply with Perlman, Ahmanson, and Brown v. Halbert.  Note how egalitarian these cases are.


Shipman’s outline:


I.                    Introduction to BA

a.       Liens

b.      Subrogation

c.       Insurance

d.      Taxation

e.       Lawyers’ Duties and Liabilities

II.                 Matters to Think Through Before Incorporation

a.       Tax Factors

b.      Subordination

c.       Convertible Securities

d.      Promoters

e.       Liability

f.        Antenuptial Agreements

g.       Dower

h.       Curtesy

i.         Community Property

j.        Voting

k.      Preferred Stock

l.         Rights of Creditors

III.               Actual Formation of the Corporation

a.       Defective Incorporation

b.      Corporation by Estoppel

c.       De Facto Incorporation

d.      Liability for Pre-Incorporation Contracts

e.       Ultra Vires

IV.              Disregard of the Corporate Entity

V.                 Par Value, Preemptive Rights, Fiduciary Duties

VI.              Indemnification

VII.            Directors’ and Officers’ Insurance

VIII.         Securities Regulation: Introduction to the Securities Act of 1933, Securities Exchange Act of 1934, and R.C. Chapter 1707

IX.              Corporate Norms and Shareholders’ Agreements

X.                 Close Corporations

XI.              Agency

XII.            Dissolution

XIII.         Dividends and Redemptions

XIV.         Insider Trading

XV.           Fiduciary Duties of Care, Loyalty, and of Full Fair Disclosure Up Front