In a shareholder action against a co-shareholder (co-owners or incorporated business partners, colloquially), a court may order one of the remedies provided for in 805 ILCS 5/12.56(b) if the shareholder shows that “the directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, or fraudulent with respect to the petitioning shareholder whether in his or her capacity as a shareholder, director, or officer.”
805 ILCS 5/12.56(a)
This article briefly examines what types of conduct constitute “oppressive” conduct under Illinois case law.
As a preliminary matter, it is important to note that the oppressive conduct must be directed toward the shareholder as a shareholder, director, or officer. Oppression directed to the shareholder as an employee, for example, does not satisfy Section 12.56. See Dady v. Healy, 407 Ill. App. 3d 1191 (2d Dist. 2011) (unpublished).
Black’s Law Dictionary defines oppression as the “act or an instance of unjustly exercising authority or power.” The Illinois Appellate Court has described oppression as conduct that is “arbitrary, overbearing and heavy-handed.” Iverson v. C.J.C Auto Parts & Tires, Inc., 2014 IL App (2d) 130706-U, ¶ 28 (citing Hager-Freeman v. Spircoff, 229 Ill. App. 3d 262 (1992), Compton v. Paul K. Harding Realty Co., 6 Ill. App. 3d 488, 499 (1972)). “Arbitrary, overbearing, and heavy-handed” provides little more guidance than “unjustly exercising authority”, but “oppression” under either definition is a broad, fluid concept.
The Illinois Appellate Court has only addressed the type of oppressive conduct that may entitle a shareholder to Section 12.56 remedies in a limited number of opinions. Examples of conduct deemed oppressive include:
Conduct found not be oppressive includes:
The above list demonstrates types of shareholder action that are considered oppressive. While conduct similar to that listed may give shareholders remedies under Section 12.56, this list is not all-inclusive, and depending on the circumstances of the specific case, a myriad of conduct may be considered oppressive under Section 12.56.
It is useful to bear in mind that the word “oppressive” as used in Section 12.56 does not require a threat of imminent disaster. “Oppressive” is also not synonymous with “illegal” and “fraudulent.” Thus, if shareholder rights have been abused and denied, it is not necessary to show fraud, illegality, or even loss to exhibit shareholder oppression. Gidilitz, 20 Ill. 2d 208.