Mamas, Don t Let Your Babies Grow Up to be Minority Shareholders in Texas Private Companies: Life for Minority Investors after Ritchie v.

Transcription

1 Mamas, Don t Let Your Babies Grow Up to be Minority Shareholders in Texas Private Companies: Life for Minority Investors after Ritchie v. Rupe Texas House of Representatives Business & Industry Committee Meeting June 9, 2016 Austin, TX By: Ladd Hirsch Diamond McCarthy LLP LHirsch@diamondmccarthy.com

2 Proposed Statutory Remedy to Richie v. Rupe: HB 3168 Sec REMEDIES FOR SHAREHOLDER OPPRESSION IN CLOSELY HELD CORPORATIONS. (b) If, in an action by a minority shareholder of a closely held corporation, it is established that the actions of the board of directors of the corporation are oppressive with respect to the shareholder, the court may order, in addition to any remedy authorized by this code, any legal or equitable remedy the court determines appropriate under the circumstances, including: 2

3 Proposed Statutory Remedy to Richie v. Rupe: HB 3168 (Cont d.) (1) the appointment of a fiscal agent to periodically report to the court; (2) The retention of jurisdiction by the court; (3) an accounting of allegedly misappropriated funds; (4) an injunction against the oppressive conduct; (5) payment of a dividend; (6) A buyout of the minority shareholder s shares; (7) Authorization for the minority shareholder to purchase additional stock; and (8) Payment of damages caused by the oppressive conduct. 3

4 From a relational standpoint, people enter closely-held businesses in the same manner as they enter marriage: optimistically and ill-prepared. ~ Charles W. Murdock, The Evolution of Effective Remedies for Minority Shareholders and Its Impact Upon Valuation of Minority Shares, 65 NOTRE DAME L.REV. 425, 425 (1990) 4

5 The Closely Held Company BUS. ORG. CODE SECTION Less than 35 shareholders Stock not traded on national market. Exempt from derivative suit hurdles. TYPICAL TRAITS Some shareholders also serve as officers and directors Less than 10 shareholders with few passive investors. 5

6 A great beginning... 6

7 Does not insure a good ending 7

8 Shareholder Oppression - A Tale From Two Sides of The Table Minority Gripe FIRED! Remove from Board No documents No distributions Majority takes $$ Majority Response Incompetent Out for yourself You plan to compete Need to hold capital Pay for performance 8

9 The Problem for Investors In Private Texas Companies Minority Shareholders LOCKED IN WITH NO WAY OUT OF THE BUSINESS 9

10 Why are Conflicts Increasing Among Owners of Private Companies Why are oppression claims increasing? Fewer public offerings (IPO market is smaller) Corporate merger mania has subsided Absence of government regulation or oversight for private companies (No SOX) Private companies are often successful Baby Boomers cashing out or handing off. 10

11 Texas Case Law: Pre Ritchie v. Rupe Oppression should be deemed to arise only when the majority's conduct substantially defeats the expectations Burdensome, harsh and wrongful conduct, a lack of probity and fair dealing in the affairs of a company to the prejudice of some of its members, or a visible departure from the standards of fair dealing and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely. DAVIS V. SHEERIN (Houston Ct. App. 1988) 11

12 The Big Three New legal standard for shareholder oppression Ritchie v. Rupe, 443 S.W.3d 856(Tex. 2014) Cardiac Perfusion Servs., Inc. v. Hughes, 436 S.W.3d 790 (Tex. 2014) Argo Data Res. Corp. v. Shagrithaya, 380 S.W.3d 249 (Tex. App. Dallas 2012, pet. denied June 2014). 12

13 Rupe Dissent 13

14 Rupe Dissent Majority 14

15 Rupe Dissent

16 Rupe Dissent Majority 16

17 Rupe Dissent statute provides for receivership only if all other remedies available either at law or in equity... are determined by the court to be inadequate. 17

18 Rupe Dissent Majority 18

19 New Rules of Rupe New 4 Part Test for Oppression: directors or managers engage in oppressive actions... when they abuse their authority over the corporation... with the intent to harm the interests of one or more of the shareholders,... in a manner that does not comport with the honest exercise of their business judgment,... and by doing so create a serious risk of harm to the corporation. No buyout remedy under the statute No common law cause of action 19

20 Buyouts Will Be Enforced Cardiac Perfusion Servs., Inc. v. Hughes, 436 S.W.3d 790 (Tex. June 27, 2014) Get an agreement! 20

21 Distribution Plan is Essential Argo Data Res. Corp. v. Shagrithaya, 380 S.W.3d 249 (Tex. App. Dallas 2012, pet. denied) Get a distribution plan 21

22 Rupe in Action In re Mandel Webre v. Sneed Tex. Ear, Nose & Throat PLLC v. Jones DeNucci v. Matthews N. Tex. Opp. Fund v. Hammerman & Gainer 22

23 Surviving the world after Rupe Derivative Actions 23

24 Make Way for Derivative Actions Lawsuit by minority shareholder against majority filed in company s name avoids defense that no fiduciary duty exists Multiple procedural hurdles Ownership at time of injury and suit Adequate representative of shareholders Demand/Futility 24

25 Simplified for closely held companies Derivative claims by shareholders procedural rules waived (BOC ) Minority shareholder may bring suit to recover for himself where justice requires Also applies to LLCs (BOC ) but not limited partnerships (BOC ) 25

26 Surviving the world after Rupe Fiduciary Duty 26

27 Surviving the world after Rupe Fraud 27

28 Shareholder Oppression Claims: Knocked Down, But Not Out? 28

29 QUESTIONS LADD HIRSCH Diamond McCarthy LLP (214)