“Because Wallace and Joan have not authorized dividend distributions, Martin has received no financial benefit from his minority interest in E&E. Meanwhile, Wallace has approved his own annual compensation in the millions of dollars.” Smith v. Smith, 2020 U.S. Dist. LEXIS 81240, *3 (E.D. Mich. May 8, 2020).
The Smith case, pending in the U.S. District Court for the Eastern District of Michigan, involves issues that regularly present in shareholder oppression cases. First, despite corporate success and the controlling shareholders receiving millions through compensation and self-dealing, the minority shareholder receives nothing of value. Second, the controlling shareholders provide inadequate information for the minority shareholder to recognize the controlling shareholders’ actionable conduct and take legal action.
Judge Mark A. Goldsmith recently issued an opinion touching on these themes in the course of ruling on the parties’ motions for partial summary judgment in Smith. This paper synthesizes the parties’ positions and the court’s analysis of those positions, which provide an illustration of how minority shareholders, majority shareholders, and courts address common issues in shareholder disputes.
Martin Smith, the plaintiff, is a 48.5% shareholder in E&E Manufacturing Corporation, Inc. 2020 U.S. Dist. LEXIS, 81240 at *2. Wallace Smith and his wife, Joan Smith, own 51.5% of E&E’s stock. Id. Wallace and Joan are E&E’s sole directors and Wallace is E&E’s president, secretary, and treasurer. Id. Martin is not employed by E&E. Id. at *28.
Between 2012 and 2018, E&E generated annual net income of approximately $3.5 million to $5.0 million. Id. *3. Despite the considerable profits, Wallace and Joan did not make any dividend distributions to E&E’s shareholders. Id. Martin alleges that Wallace and Joan also caused E&E to enter into various transactions, including leases in which E&E paid millions, to companies owned by Wallace, Joan, and their children. Id. at *3-4. Martin also alleges that Wallace received, on average, approximately $1.8 million dollars annually in compensation. Id. *28.
Martin filed suit against Wallace, Joan, and others for shareholder oppression, breach of fiduciary duty, and other statutory relief under Michigan’s corporate statutory scheme. Id. at *5. He seeks a buyout of his shares in E&E, payment of dividends, removal of Wallace and Joan from management, an accounting, profit disgorgement, and damages. Id.
The defendants argued that Martin’s claims should be subject to Michigan statutes of limitations of two and three years. Id. at *9-10. The court held that only Martin’s damages claims were subject to those statutes whereas his equitable claims, i.e. all relief other than money damages, were subject to a six-year statute of limitations. Id. at 10-11.
Crucially, the court reserved for trial the issue of whether any application of the statute of limitations should be tolled based on fraudulent concealment. Id. *17-18. Under Michigan law, “fraudulent concealment must be manifested by some affirmative act or misrepresentation, an exception to this rule applies when there is an affirmative duty to disclose material information by virtue of a fiduciary relationship.” Id. at *15. As directors and majority shareholders, Wallace and Joan owed Martin fiduciary duties. Id. at *16.
Martin alleged Wallace and Joan failed to disclose “information bearing on his present claims”, including the sum of Wallace’s compensation, the terms of self-dealing lease agreements, and the value of distributions Wallace, Joan, and their children received through entities receiving rent from E&E. Id. at *16. Additionally, Martin alleges the defendants provided incomplete annual financial reports that excluded information that would have provided notice to Martin of some of his claims. Id. The court agreed with Martin, concluding that “[i]f Wallace and Joan had a fiduciary obligation to disclose this information to Martin—including the information in the full balance sheets—their failure to do so would be consistent with fraudulent concealment.” Id. at *19.
In essence, the court decided which statutes of limitations apply to Martin’s claims with the caveat that whether the statute of limitations are offset by fraudulent concealment for trial. This being a pretrial decision on summary judgment, the final result of the Smith case is as yet undetermined. The opinion nevertheless provides shareholders a case study in the legal issues that arise in what is a remarkably typical shareholder oppression case fact pattern.
Assuming a member has a "proper purpose," Illinois LLCs are required to provide documents a member demands.
Within ten days of a member's demand, the company is required to either: 1) produce the requested documents; or 2) respond in writing describing the documents that will be provided and stating a reasonable time and place at which the documents will be provided. Additionally, if a member demands to inspect company records, the company must designate a reasonable time and place for the member to do so, and the member may make copies of documents. If the company refuses to make requested records available, it must provide the member its reasons for refusing in writing. 180 ILCS 180/10-15(a), (b). If the reasons for withholding are spurious or asserted in bad faith, a member may need to seek relief from a court.
While the LLC Act does not define "proper purpose," Illinois courts have interpreted the meaning of "proper purpose" in the context of shareholder demands for records under the Business Corporation Act. Seeking information to protect the interests of a member or the company are proper purposes, and a member is "entitled to know anything and everything" reflected in the company's books and records relevant to protecting her interest. See Weigel v. O'Connor, 57 Ill. App. 3d 1017, 1025 (1st Dist. 1978) (interpreting Business Corporation Act). Evidence of mismanagement or wrongdoing is not necessary to establish proper purpose. See id.
An LLC member may demand company records such as QuickBooks files, bank account statements, credit card statements, and tax returns in order to determine whether the company is being appropriately managed and whether profits are being recorded and distributed fairly.
Disorganization, financial difficulties, and greed can lead to a partner taking more from a business than they're entitled. This, of course, comes at the expense of their partners. In closely held businesses, there are unfortunately numerous ways to cheat. A few examples are a partner funneling money to another entity he or she owns under the guise of legitimate business expenses, a partner unilaterally issuing unjustified salary or "bonuses" to avoid paying out profits to other partners, and a partner using company funds on personal expenses in a surreptitious or disproportionate manner.
If you're in a business partnership, whether as a partner, shareholder, or member, and you suspect your partner is stealing, embezzling, or otherwise cheating the company, take actions to enable yourself to prove it. Save all financial data that you can. Have access to the company QuickBooks file? Download it, and keep the file somewhere safe. The same goes for bank account statements and credit card statements. Save tax returns, payroll records, invoices, and receipts. If you confront your partner, he or she could, even if illegally, revoke your access to these documents or even to the business generally. Your partner may also start to cover his or her tracks. It's wise to develop a plan with your attorney before you raise the issue.
Beyond securing accessible records, you should work with your attorney to develop a strategy for rectifying the problem. Tools at you and your attorney's disposal include statutorily-protected demands for documents, corporate actions to end the misappropriation, forensic accounting audits, removal of the partner, or a fair value buyout of your interest in the company. In some cases, these matters are resolved through negotiation. In others, lawsuits are ultimately necessary.
When partnership problems become apparent, seeking your attorney's help immediately generally pays dividends in the long run. Self-help early in disputes can create expensive problems to solve in litigation.
From fake loans to $80,000 bonuses to certain shareholders in lieu of dividends to all, the defendants in Chomiak v. Kasian provided a variety of avenues for a successful shareholder oppression action. On August 3, 2017, the Appellate Division of the New York Supreme Court issued an opinion affirming the lower court's ruling for the plaintiffs, who were the defendants' relatives and co-shareholders.
The defendants owned 52% of the business at issue, Twin Bay Village, and the plaintiffs owned 48%. The plaintiffs' involvement in the business was limited, at least recently, and the defendants ran the business, which had been in the family since 1957.
In 2009, the defendants determined that the fair value of the corporation's shares was $1,139 and demanded that the plaintiff's sell their shares. The plaintiffs instead filed suit for shareholder oppression in the form of a breach of fiduciary duty and statutory action.
The New York court applied the reasonable expectations standard and found that the plaintiffs' reasonable expectations that the defendants would protect the interests of all shareholders had been frustrated. The Appellate Court affirmed.
The takeaway of Chomiak is, as in many shareholder or "partnership disputes", that when your business is organized as a corporation, you are not acting for yourself, but for the corporation and its shareholders. The fact that the controlling shareholders operate or manage the corporation does not diminish the rights of the minority shareholders.
In a recent order, the Appellate Court affirmed a Cook County trial court decision finding that a de facto LLC manager in a manager-managed LLC: (1) had fiduciary duties to the other members despite not being the legal manager; and (2) breached his fiduciary duties to his co-owners by running the business and finances without regard for the other members. Kenny v. Fulton Assocs., LLC, 2016 IL App (1st) 152536-U.
The de facto manager had a 50% interest in the company, and two other members shared the remaining 50% interest.
After an eleven-day trial, the trial court found that the de facto manager breached his fiduciary duties by making "unilateral, unauthorized decisions," including: (1) hiring an attorney in the litigation and paying him with company funds; (2) compensating another business of his with company funds; (3) falsifying articles of amendment to the operating agreement; (4) opening bank accounts, funded with company money, accessible only by him and his son by not his co-owners; and (5) directing the company's accountant to file tax returns that ignored the other members' ownership interests in the company. Id. ¶ 34.
On appeal, the de facto manager argued that he was not the legal manager and therefore had no fiduciary duties. See Id. ¶¶ 63, 66. He also argued that if he have did have fiduciary duties, the trial court erred by deciding that he had breached them. Id. The Appellate Court rejected the de facto manager's argument regarding the existence of fiduciary duties because under the Illinois LLC Act, a member in a manager-managed LLC may have fiduciary duties to other members "if the member 'exercises the managerial authority vested in a manger by the Act." Id. ¶ 67 (citing 805 ILCS 180/15-3(g).)
The Appellate Court also affirmed the trial court's finding that the de facto manager breached his fiduciary duties to the other members by unilaterally making decisions to the detriment of the other members without their authorization, as described above. Id. ¶ 69. Further, the other members were damaged by the de facto manager's payment of his own attorney fees in the litigation with company money. Id. ¶ 71.
Corporation, Not 50/50 Shareholders, Responsible for Provisional Director Fees in Shareholder Dispute
In a recent order, the Illinois Appellate Court held that Section 12.56(g) of the Business Corporation Act of 1983 (the “Act”) must be read to provide compensation for provisional directors by the corporation as opposed to it shareholders. Sinkus v. BTE, 2016 IL App (1st) 152135-U. In Sinkus, the plaintiff, Sinkus, and one of the defendants, Carl Thomas (“Thomas”), were 50/50 shareholders of BTE. Id. at ¶ 5. Sinkus and Thomas could not reach an agreement on the dissolution and liquidation of BTE, which led Sinkus to resign as an officer and director of BTE, leaving Thomas to manage the corporation. Shortly thereafter, Sinkus learned of Thomas’ solicitation of BTE’s business and sale of all corporate assets for his own benefit. Sinkus brought derivative and direct claims for breach of fiduciary duties, conspiracy to breach fiduciary duties, and minority shareholder oppression. Id. at ¶ 5.
The trial court appointed retired judge Daniel J. Kelley (“Kelley”) as “a provisional director of BTE pursuant to sections 12.56(b)(4) and 12.56(c) of the Act” to “direct the litigation” and “ensure that Thomas does not unduly influence” BTE’s counsel. Id. at ¶ 6. In order to compensate Kelley for his time as BTE’s provisional director, Kelley made capital calls from each shareholder for $25,000.00 and later $30,000.00. Id. at ¶¶ 8-10. Sinkus refused to make either capital contribution stating that he was under no obligation to make additional capital contributions and “that he was not responsible for BTE’s debts.” Id. at ¶ 8. The trial court ordered Sinkus to make both capital contributions, but he continued to refuse and was eventually held in indirect civil contempt. Id. at ¶¶ 9-10.
On appeal, the Court analyzed whether the trial court had the authority to order the shareholders to compensate a provisional director under the Act. Id. at ¶ 14. Section 12.56(b) of the Act provides for several remedies the court may order, including the appointment of a provisional director. Section 12.56(g) of the Act, however, states:
"the court shall allow reasonable compensation to the custodian, provisional director, appraiser, or other such person appointed by the court for services rendered and reimbursement or direct payment of reasonable costs and expenses, which amounts shall be paid by the corporation."
805 ILCS 5/12.56(g).
BTE argued that Sections 12.56(b)(1) and 12.56(c) give the trial court the authority to order shareholders to pay a provisional director’s fee. Sinkus, 2016 IL App (1st) 152135-U, ¶ 19. Section 12.56(b)(1) of provides the trial court authority to order the “performance . . . of its shareholders” and Section 12.56(c) provides the court authority to fashion “equitable remedies.” See 805 ILCS 5/12.56(b)(1), (c).
The Appellate Court rejected BTE’s argument because if Sections 12.56(b)(1) and 12.56(c) were interpreted to provide trial courts authority to order shareholders to compensate a provisional director, then the “specific directive of section 12.56(g) that the provisional director be compensated by the corporation is rendered meaningless.” Sinkus, 2016 IL App (1st) 152135-U, at ¶ 20. Any interpretation that would render a portion of a statute meaningless must be avoided. Id. at ¶ 15. Therefore, the Appellate Court concluded that Section 12.56(g) of the Act controls and the trial court erred by ordering the shareholders to compensate a provisional director. Id. at ¶ 20.
In sum, pursuant to Section 12.56(g), the coporation itself, and not its shareholders, must must compensate a provisional director appointed pursuant to Section 12.56 of the Business Corporation Act.
Illinois Court Orders 51% Shareholder to Pay 49% Shareholder's Attorneys' Fees in Case Involving Misuse of Corporate Funds and Bad Faith Counterclaim
The Appellate Court of Illinois recently affirmed an award of attorney fees in a Section 12.56 proceedings. In Thazhathuputhenpurac v. JT Enterprises of Chicago, the Court held that minority shareholder was entitled to reasonable attorney fees due to the 51% shareholder’s failure to act in good faith in “filing a frivolous counterclaim and forcing [the 49% shareholder] to defend himself against the accusations contained therein.” 2016 IL App (1st) 130775-U, ¶ 47. The Court further affirmed that in the case of two separate claims where only one claim is covered by a fee-shifting provision, the recovering party is still entitled to attorney fees where the issues are “so intertwined that the time spent on each issue cannot and should not be distinguished.” Id.
In Thazhathuputhenpurac, the parties were former investors and shareholders of JT Enterprises of Chicago, Inc., a corporation which operated a Shell service station. Id. at ¶ 5. The shareholders each invested $115,000 of their own money in the corporation, but Shell insisted that one party be the majority shareholder. Id. The parties agreed that defendant would hold 51% of the shares. Id. Shortly thereafter, defendant formed two more service station corporations, TVA and G&P, in which he was the sole shareholder. Id. at ¶ 6.
From 1997 through 2002, the minority, 49% shareholder solely managed JT, though he frequently met with the 51% shareholder to discuss the business. Id. at ¶ 7. In 2002, due to health issues and a disagreement with defendant, plaintiff stopped working at JT and eventually relocated to Florida. Id. at ¶ 8. Prior to his relocation, Shell had substantially increased JT’s rent, and the parties had agreed to sue on behalf of JT. Id. at ¶ 9. Defendant also independently sued Shell on behalf of TVA. Id. Both cases settled in 2005, and defendant signed on behalf of both JT and TVA. Id. Defendant had agreed to surrender “JT to Shell, for a credit of $225,000” and defendant applied the entirety of JT’s credit – excluding the 49% shareholder – to his purchase of the TVA property. Id. at ¶ 9-10.
At no point did the 51% owner discuss or inform the 49% owner of this settlement offer. It was later determined that the 51% owner had also been transferring substantial sums of money between all three entities throughout the years without notifying the 49% owner. Id. at ¶ 12-13. In 2006, the 49% owner sued the 51% owner under Section 12.56 of the Act, tortious interference, and for an accounting, and defendant counterclaimed for breach of fiduciary duty. Id. at ¶ 14. The court awarded the 49% owner $158,699.73 and reasonable attorney fees “as he was successful on his claim brought under the Act,” and found against the 51% owner for his counterclaim. Id. at ¶ 15.
Following a motion to reconsider, the court found that the 49% partner’s award should not be reduced by 49% of the attorney fees incurred by the 51% partner in the settlement with Shell as “there is no evidence that the attorney fees reduced the $225,000 benefit as opposed to being just another cost associated with the closing.” Id. at ¶ 17. The court further held that the 51% partner’s counterclaim “was not litigated in good faith and pursuant to section 12.60(j) of the Act, [and] awarded attorney fees to [the 49% partner] for defending the counterclaim” despite the fact that only one of the claims was covered. Id. The court affirmed that “in fee shifting cases, such as this one, where there are covered and non-covered claims, a party is entitled to fees on a non-covered claim where the two claims ‘arise out of a common core of facts and related legal theories.’” Id. at ¶ 19 (citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).
On appeal, the Appellate Court affirmed the circuit court’s award of reasonable attorney fees to the 49% partner pursuant to Section 5/12.60(j), finding that the 51% partner’s counterclaim was not brought in good faith. Further, the Appellate Court held that the fees should not be limited to the defense of the counterclaim because the claims were “so intertwined that the time that [the 49% shareholder’s] attorney spent on each issue cannot and should not be distinguished.” Id. at ¶ 47.
Thazhathuputhenpurac serves as a warning to business owners and attorneys litigating cases under the Illinois Business Corporation Act. First, despite the emotional nature of “business divorces,” it is prudent for shareholders and their attorneys to carefully consider the strength of their claims before proceeding all the way through a trial. Second, litigants and attorneys should be careful to avoid the unfortunately common litigation practice of lodging weak counterclaims as a strategic counterbalance to plaintiffs' counts. In a Business Corporation Act case, doing so may be costly.
A non-public corporation is a corporation that has no shares listed on a national securities exchange or regularly traded in a market maintained by one or members of a national or affiliated securities association. In a shareholder action in a non-public corporation, circuit courts may order one of several remedies listed in Section 12.56 of the Business Corporation Act of 1983. 805 ILCS 5/12.56.
Section 12.56(f) allows the corporation or shareholders being sued to purchase the petitioner’s shares if it is requested as relief by the petition. The corporation or one or more shareholders can choose to purchase all of the shares owned by the petitioning shareholder for their fair value either within 90 days after filing the petition under Section 12.56 or within a length of time the court finds to be equitable. 805 ILCS 5/12.56.
The provisions regarding a buyout of the petitioner’s shares pursuant to Section 12.56(f) are as follows:
If the parties reach an agreement on the fair value and terms of the buyout within 30 days of filing the election to purchase, then the court will enter an order directing the purchase upon the terms and conditions agreed to by the parties. 805 ILCS 5/12.56(f)(5). If the parties are unable to reach an agreement within 30 days of filing, the court will determine the fair value of the shares as of the day before the date the petition was filed or as of another date that the court deems appropriate. 805 ILCS 5/12.56(f)(6).
Section 12.56(a) does not define “fair value” but simply states that the negative impact the complained of conduct had on the value of the petitioner’s shares should be factored into the determination of “fair value.” Section 11.70(j) of the Business Corporation Act defines “fair value” as “the value of the shares immediately before the consummation of the corporation action to which the dissenter objects excluding any appreciation or depreciation in anticipation of the corporate action, unless exclusion would be inequitable.” 805 ILCS 5/11.70.
Illinois case law also demonstrates that the Illinois legislature wanted to give courts broad discretion in determining fair value and that it should be distinguished from “fair market value,” although fair market value may be used in a fair-value determination. John T. Schriver & Paul J. Much, Determining Fair Value for Minority Shareholders Who Sue for Corporate Wrongdoing, 91 Ill. B.J. 199, 200 (2003). Thus, there is broad latitude given to the court and parties when determining the shareholder buyout price.
A limited liability company (“LLC”) allows members limited liability, but LLCs aren't perpetual. Section 180/35-1 of the Limited Liability Company Act details the events that cause the dissolution of LLCs. 805 ILCS 180/35-1. Section 180/35-1(4)(E) indicates that LLCs can be dissolved “on application by a member or a disassociated member, upon entry of a judicial degree that the manager or members in control of the company have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent with respect to the petitioner.” 805 ILCS 180/35-1(4)(E).
This article addresses members' rights to wind up a LLC’s business post-dissolution as well as the liabilities and rights during winding up of a LLC. Aside from administrative winding up of a LLC’s affairs under judicial supervision, individuals can wind up the LLC’s business. The individuals who have the right to wind up a LLC’s business after dissolution are: (a) members who have not wrongfully dissociated from the LLC; and (b) legal representatives of the last surviving member of the LLC. 805 ILCS 180/35-4.
The persons winding up a LLC’s affairs may preserve the company’s business or property for a reasonable time as well as prosecute and defend actions and proceedings on behalf of the LLC. These persons may also settle and close the company’s business, dispose of and transfer the company’s property, discharge the company’s liabilities, distribute the assets of the company, settle disputes by mediation or arbitration, and perform other necessary acts. 805 ILCS 180/35-4(c).
Although members of LLCs are generally not personally liable for the debts or obligations of the company, courts in some states have held that a LLC member or manager may be held individually liable during the winding up process post-dissolution. 49 A.L.R. 6th 1 §64 (2009). Examples of winding up situations in which LLC members can be held individually liable include:
Dissolution of an LLC, on its own, however, does not make members personally liable for debts, obligations, or liabilities of the LLC. That is, solely being a member or manager of the LLC or having the authority to wind up the company’s business following its dissolution does not place the individual under any obligation or liability. 49 A.L.R. 6th 1 §65 (2009).
Section 12.30 of the Illinois Business Corporation Act of 1983 (“Act”) (805 ILCS 5/12.30) explains the effects of corporate dissolution. Section 12.75 of the Act (805 ILCS 5/12.75) details the notice requirements a dissolved corporation must comply with in order to remove its liabilities. These sections of the Act give shareholders expectation guidelines following their decisions to dissolve a corporation.
Section 12.30 mandates that a dissolved corporation shall not carry on any business other than what is necessary to liquidate its business and affairs, including:
A dissolved corporation may bar known claims against it, its directors, officers, employers or agents, or its shareholders or their transferees. If the dissolved corporation wishes to discharge or make provisions to discharge its liabilities, it must send a notification to the claimant within 60 days of the effective date of dissolution, relaying the following information:
If the dissolved corporation complies with the above procedures and then chooses to reject the claim entirely or in part, the corporation must notify the claimant of the rejection. The corporation must also notify the claimant that the claim shall be barred unless the claimant files suit to enforce the claim within a deadline not less than 90 days from the date of the rejection notice.
To employ this section of the Business Corporation Act, corporations should identify potential claimants and give them notice under the aforementioned procedures. A 12.75 notice is not required, but if it is given, it must be given to all known creditors, or else the director of the corporation will be at risk of personal liability in accordance with Section 8.65 of the Act. Kennedy v. Four Boys Labor Serv., Inc., 279 Ill. App. 3d 361, 664 (2d Dist. 1996); Lin Hanson, The Business Corporation Act’s “Quickie” Claim Bar Dissolving Corporations Can Use This Technique to Sharply Reduce the Period During Which They Remain Liable for Claims Against Them. But Beware Its Risks and Limitations, 96 Ill. B.J. 480 (2008).
The most important factor to keep in mind is that Section 12.75 is not a “catch-all” claim bar. A “claim” under Section 12.75 does not include contingent liability, claims arising after the effective date of dissolution, claims arising from the failure of the corporation to pay any tax or penalty, and claims arising out of criminal law violations. Nonetheless, Section 12.75 gives corporations an inexpensive option to bar known claims.