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CHAPTER 7: CLOSE CORPORATION

A.

INTRODUCTION

At the outset it is important to note that there is no generally accepted definition


of a close corporation. In Donahue v. Rodd Electrotype Co. of New England, Inc., 328 N.E.2d
505 (Mass. 1975), the court analyzed the characteristics of a close corporation as follows:
(1) a small number of stockholders; (2) no public market for the corporate stock; and (3)
substantial majority stockholder participation in the management and operations of the
corporation. As thus defined, the close corporation bears striking resemblance to a
partnership. Id. at 511. The characterization in Donahue has a certain level of truth and
must be understood in historical context. A close corporation is fundamentally
characterized by a small number of stockholders; accordingly, stockholders participate
in management and there is typically no ready market the equity. These attributes are
prototypical characteristics of a general partnership. When the case was decided in 1975,
if equityholders sought to participate in management, the available choice of entities was
principally a general partnership or a corporation, and only the corporation provided
limited liability.
Corporations and partnerships fundamentally differ, but the distinction becomes
blurred in close corporations. The tax treatment of corporations and partnerships differ,
but some corporations, including close corporations, can quality as an S corporation
under federal tax law, which would permit a single level of taxation. The default
governance rules of corporations and partnerships materially differ in many respects. But
some corporation statutes permit written shareholder agreements that mimic the
management of a close corporation to that of a partnership. See DGCL 354 (permitting
written shareholder agreement by the parties to the agreement or by the stockholders of
the corporation to treat the corporation as if it were a partnership or to arrange relations
among the stockholders or between the stockholders and the corporation in a manner
that would be appropriate only among partners).
Delaware corporation law draws a distinction between a closely-held corporation
and a close corporation. A closely-held corporation is simply a corporations whose
shareholding is closely held by a limited number of shareholders. Subchapter XIV of the
Delaware corporation statute requires that a corporation must quality to a close

Although the first LLC statute was enacted in Wyoming in 1977, the form did not achieve wide
acceptance among practitioners until the 1990s. Likewise, the limited liability partnership was introduced
in the 1990s. The Revised Uniform Partnership Act was also adopted in the 1990s, which provided that the
partnership was an entity is distinct from its partners and thus the partnership may continue in perpetuity
despite the dissociation of partners (see RUPA 201(a) and 603(a)). A limited partnership would not
permit limited partners to participate in management without risking the loss of limited liability under the
control rule.

corporation by filing a certificate of incorporation consistent with Subchapter IV and


maintaining the requirements therein. There, DGCL 342(a) defines a close corporation:
A close corporation is a corporation organized under this chapter whose
certificate of incorporation contains the provisions required by 102 of this
title and, in addition, provides that:
(1) All of the corporation's issued stock of all classes, exclusive of treasury
shares, shall be represented by certificates and shall be held of record by
not more than a specified number of persons, not exceeding 30; and
(2) All of the issued stock of all classes shall be subject to 1 or more of the
restrictions on transfer permitted by 202 of this title; and
(3) The corporation shall make no offering of any of its stock of any class
which would constitute a "public offering" within the meaning of the
United States Securities Act of 1933 [15 U.S.C. 77a et seq.] as it may be
amended from time to time.
The Delaware definition of a close corporation is a corporation that has been identified in
the certificate as a close corporation and that is restricted by its certificate as to the number
of shareholders, transfer of stock, and public offering.

B.

RESTRICTIONS ON BOARD AUTHORITY


1. Shareholder Agreements

Corporation statutes provide that the board of directors management the business
and affairs of the corporation. See DGCL 141(a); MBCA 8.01(b). Directors are elected
by shareholders, and shareholders are said to indirectly control the corporation through
elections. This is the prototype concept of managerial authority for all public corporations
and many, if not most, other corporations. However, a major reason shareholders form a
close corporation is to participate directly in management.
The allocation of management authority is zero sum. An increase in shareholder
participation in management must necessarily derogate the boards authority to manage
the business and affairs of the corporation. Historically, common law courts looked
askance at such encroachment. See, e.g., Manson v. Curtis, 119 N.E. 559 (N.Y. 1918)
(Clearly the law does not permit the stockholders to create a sterilized board of
directors.); Long Park, Inc. v. Trenton-New Brunswick Theatres Co., 77 N.E.2d 633 (N.Y.
1948) (The directors may neither select nor discharge the manager, to whom the
supervision and direction of the management and operation of the theatres is delegated
with full authority and power. Thus the powers of the directors over the management of
its theatres, the principal business of the corporation, were completely sterilized.).

However, modern corporation statutes permit shareholder agreements to restrict


the managerial discretion of the board of directors. The Delaware corporation statute
permits complete shareholder management of a close corporation.
A written agreement among the stockholders of a close corporation holding
a majority of the outstanding stock entitled to vote, whether solely among
themselves or with a party not a stockholder, is not invalid, as between the
parties to the agreement, on the ground that it so relates to the conduct of
the business and affairs of the corporation as to restrict or interfere with the
discretion or powers of the board of directors. The effect of any such
agreement shall be to relieve the directors and impose upon the
stockholders who are parties to the agreement the liability for managerial
acts or omissions which is imposed on directors to the extent and so long as
the discretion or powers of the board in its management of corporate affairs
is controlled by such agreement.
DGCL 350. Furthermore, DGCL 351 further provides that a close corporation can be
managed by shareholders rather than a board of directors, precluding altogether the need
for a board and election of directors.
Other statutes permit shareholder agreements that restrict the typical managerial
authority of the board of directors. See MBCA 7.32; Calif. Corp. Code 300; N.Y.B.C.L.
620. Under MBCA 7.32(a), a shareholder agreement may: (1) eliminate the board or
restrict its authority; (2) govern distributions; (3) govern the appointment and terms of
directors and officers; (4) govern voting matters; (5) establish terms and conditions for
the transfer or use of corporate property; (6) transfer the authority to manage the business
and affairs of the corporation to any person; (7) require dissolution of the corporation
upon specified conditions; (8) otherwise governs the exercise of the corporate powers or
the management of the business and affairs of the corporation or the relationship among
the shareholders, the directors and the corporation, or among any of them, and is not
contrary to public policy.
The comment to 7.32(a) provides that the scope of shareholder agreements is
limited when substantial public policy is at stake. Examples cited in the comment are a
provision that eliminates a boards fiduciary duty of care and duty of loyalty, and a
provision that exculpates director liability beyond what is permitted under corporation
law. Corporation law permits the exculpation of liability for money damages for a breach
of the duty of care, but not a breach of the duty of loyalty and the obligation of good faith
and fair dealing. See MBCA 2.02(b)(4); DGCL 102(b)(7).
Accordingly, close corporations under the MBCA are different from LLCs in that
some jurisdictions like Delaware and Nevada permit the complete elimination of
fiduciary duty of members and managers through contracting. See, e.g., Delaware Limited
Liability Company Act 18-1101(c) (the member's or manager's or other person's
[fiduciary] duties may be expanded or restricted or eliminated by provisions in the
limited liability company agreement); Nev.Rev.Stat. 86.286(5) (such duties may be
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expanded, restricted or eliminated by provisions in the operating agreement). The


complete freedom of contract approach of LLC statutes in Delaware and Nevada do not
represent the general rule or even the majority of jurisdictions.

2. Fiduciary Duties of Shareholders and Liability for Breach


What are the duties of shareholders who assume management functions or acquire
control prerogatives under a shareholders agreement? Some statutes address the
question by imposing duties on those who acquire the managerial authority typically
vested in boards. MBCA 7.32(e) provides:
An agreement authorized by this section that limits the discretion or powers
of the board of directors shall relieve the directors of, and impose upon the
person or persons in whom such discretion or powers are vested, liability
for acts or omissions imposed by law on directors to the extent that the
discretion or powers of the directors are limited by the agreement.
Similarly, the Delaware statute imposes liability on shareholders who manage that mirror
the liability of directors who typically manage the business and affairs of the corporation.
DGCL 350: The effect of any such [shareholder] agreement shall be to
relieve the directors and impose upon the stockholders who are parties to
the agreement the liability for managerial acts or omissions which is
imposed on directors to the extent and so long as the discretion or powers
of the board in its management of corporate affairs is controlled by such
agreement.
DGCL 351: The certificate of incorporation of a close corporation may
provide that the business of the corporation shall be managed by the
stockholders of the corporation rather than by a board of directors. So long
as this provision continues in effect: . . . The stockholders of the corporation
shall be subject to all liabilities of directors.
The question of a shareholders duty arises most clearly when minority
shareholders condition their investment in a close corporation on a governance structure
that gives them a veto over some or all decisions of the majority. The question is whether
a minority shareholder who exercises veto power can be deemed to have violated her
fiduciary duties. The question sometimes is one of degree. A minority shareholder can
use veto powers either selectively or to create a deadlock. Voting against a particular
action, as when directors are evenly split on an issue or they divide 31 when an 80% vote
is required, does not create a deadlock. The action simply is not approved, and the
business continues to function. A deadlock arises when relations among the
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shareholders or directors has deteriorated to the point that virtually no action is possible;
one faction says yes, the other says no. The following case explores these issues.

Smith v. Atlantic Properties, Inc.


422 N.E.2d 798 (Mass.App. 1981)
[In 1951 four investors incorporated a real estate company (Atlantic Properties) to
purchase and manage real estate. Each investor acquired 25 shares in the corporation,
whose articles of organization and bylaws provided: No election, appointment or
resolution by the Stockholders and no election, appointment, resolution, purchase, sale,
lease, contract, contribution, compensation, proceeding or act by the Board of Directors
or by any officer or officers shall be valid or binding upon the corporation until effected,
passed, approved or ratified by an affirmative vote of eighty (80%) per cent of the capital
stock issued outstanding and entitled to vote. The 80% provision, included at the request
of Dr. Louis Wolfson, the corporations founder, gave each shareholder a veto in
corporate decisions.
Atlantics sole holding was a parcel of land that included old brick or wood mill
structures that required extensive maintenance and repair. Nonetheless, from the
beginning the company was profitable and continued to show a regular profit. The
mortgage on the land was paid off, and Atlantic had no long-term debt. Although salaries
and dividends were paid sporadically, Atlantic in 1961 had about $172,000 in retained
earnings, more than half in cash.
For a variety of reasons, disagreements and ill will arose between the shareholders.
Dr. Wolfson ostensibly wanted Atlantic to devote its earnings to repairs and
improvements. The other stockholders wanted the corporation to declare dividends, but
Dr. Wolfson regularly voted against dividends. Although a no-dividend policy risked tax
penalties under the Internal Revenue Code provisions relating to unreasonable
accumulation of corporate earnings and profits, Dr. Wolfson persisted in his refusal.
The IRS eventually imposed substantial penalty taxes on Atlantic. According to
the Tax Court and on appeal, Dr. Wolfsons refusal to vote for the declaration of sufficient
dividends was based in part on his purpose to avoid personal taxes.
The other shareholders then brought an action seeking a court determination of
the dividends to be paid by Atlantic, the removal of Dr. Wolfson as a director, and an
order that Dr. Wolfson reimburse the corporation for the penalty taxes and related
expenses. The trial judge concluded that Dr. Wolfsons obstinate refusal to vote in favor
of dividends was caused more by his dislike for other stockholders and his desire to avoid
additional tax payments than by any genuine desire to undertake a program for
improving Atlantic property. She also determined that Dr. Wolfson was liable to
Atlantic for reimbursing the penalty taxes with interest, as well as attorney fees. She also
ordered the directors of Atlantic to declare a reasonable dividend at the earliest practical
date and reasonable dividends annually thereafter consistent with good business
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practice. In addition, the trial court retained jurisdiction of the case for a period of five
years to ensure compliance. Dr. Wolfson appealed.]
CUTTER, JUSTICE:
The trial judge, in deciding that Dr. Wolfson had committed a breach of his
fiduciary duty to other stockholders, relied greatly on broad language in Donahue v. Rodd
Electrotype Co., 328 N.E.2d 505 (Mass. 1975), in which the Supreme Judicial Court afforded
to a minority stockholder in a close corporation equality of treatment (with members of
a controlling group of shareholders) in the matter of the redemption of shares. The court
relied on the resemblance of a close corporation to a partnership and held that
stockholders in the close corporation owe one another substantially the same fiduciary
duty in the operation of the enterprise that partners owe to one another. That standard
of duty, the court said, was the utmost good faith and loyalty. The court went on to say
that such stockholders may not act out of avarice, expediency or self-interest in
derogation of their duty of loyalty to the other stockholders and to the corporation.
In the Donahue case, the court recognized that cases may arise in which, in a close
corporation, majority stockholders may ask protection from a minority stockholder. Such
an instance arises in the present case because Dr. Wolfson has been able to exercise a veto
concerning corporate action on dividends by the 80% provision [which] may have
substantially the effect of reversing the usual roles of the majority and the minority
shareholders. The minority, under that provision, becomes an ad hoc controlling interest.
Dr. Wolfson testified that he requested the inclusion of the 80% provision in case
the people the other shareholders whom I knew, but not very well, ganged up on me.
The possibilities of shareholder disagreement on policy made the provision seem a
sensible precaution. A question is presented, however, concerning the extent to which
such a veto power possessed by a minority stockholder may be exercised as its holder
may wish, without a violation of the fiduciary duty.
With respect to the past damage to Atlantic caused by Dr. Wolfsons refusal to vote
in favor of any dividends, the trial judge was justified in finding that his conduct went
beyond what was reasonable. The other stockholders shared to some extent responsibility
for what occurred by failing to accept Dr. Wolfsons proposals with much sympathy, but
the inaction on dividends seems the principal cause of the tax penalties. Dr. Wolfson had
been warned of the dangers of an assessment under the Internal Revenue Code, I.R.C.
531 et seq. He had refused to vote dividends in any amount adequate to minimize that
danger and had failed to bring forward, within the relevant taxable years, a convincing,
definitive program of appropriate improvements which could withstand scrutiny by the
Internal Revenue Service. Whatever may have been the reason for Dr. Wolfsons refusal
to declare dividends (and even if in any particular year he may have gained slight, if any,
tax advantage from withholding dividends) we think that he recklessly ran serious and
unjustified risks of precisely the penalty taxes eventually assessed, risks which were
inconsistent with any reasonable interpretation of a duty of utmost good faith and
loyalty. The trial judge (despite the fact that the other shareholders helped to create the
voting deadlock and despite the novelty of the situation) was justified in charging Dr.
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Wolfson with the out-of-pocket expenditure incurred by Atlantic for the penalty taxes
and related counsel fees of the tax cases.10
The trial judges order to the directors of Atlantic, to declare a reasonable
dividend at the earliest practical date and reasonable dividends annually thereafter,
presents difficulties. It may well not be a precise, clear, and unequivocal command which
(without further explanation) would justify enforcement by civil contempt proceedings.
It also fails to order the directors to exercise similar business judgment with respect to
Dr. Wolfsons desire to make all appropriate repairs and improvements to Atlantics
factory properties.
The somewhat ambiguous injunctive relief is made less significant by the trial
judges reservation of jurisdiction in the Superior Court, a provision which contemplates
later judicial supervision. We think that such supervision should be provided now upon
an expanded record. The present record does not disclose Atlantics present financial
condition or what, if anything, it has done (since the judgment under review) by way of
expenditures for repairs and improvements of its properties and in respect of dividends
and salaries. The judgment, of course, necessarily disregards the general judicial
reluctance to interfere with a corporations dividend policy ordinarily based upon the
business judgment of its directors.
Although the reservation of jurisdiction is appropriate in this case, its purpose
should be stated more affirmatively. Paragraph 2 of the judgment should be revised to
provide: (a) a direction that Atlantics directors prepare promptly financial statements
and copies of State and Federal income and excise tax returns for the five most recent
calendar or fiscal years, and a balance sheet as of as current a date as is possible; (b) an
instruction that they confer with one another with a view to stipulating a general
dividend and capital improvements policy for the next ensuing three fiscal years; (c) an
order that, if such a stipulation is not filed with the clerk of the Superior Court within
sixty days after the receipt of the rescript in the Superior Court, a further hearing shall be
held promptly (either before the court or before a special master with substantial
experience in business affairs), at which there shall be received in evidence at least the
financial statements and tax returns above mentioned, as well as other relevant evidence.
Thereafter, the court, after due consideration of the circumstances then existing, may
direct the adoption (and carrying out), if it be then deemed appropriate, of a specific
dividend and capital improvements policy adequate to minimize the risk of further
penalty tax assessments for the then current fiscal year of Atlantic. The court also may
reserve jurisdiction to take essentially the same action for each subsequent fiscal year
until the parties are able to reach for themselves an agreed program.

C.

SHAREHOLDER VOTING ARRANGEMENTS

We do not now suggest that the standard of utmost good faith and loyalty may require some
relaxation when applied to a minority ad hoc controlling interest, created by some device, similar to the
80% provision, designed in part to protect the selfish interests of a minority shareholder. This seems to us
a difficult area of the law best developed on a case by case basis.
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Voting in close corporations when there are relative few shareholders is generally
different from voting when there are many shareholders, such as public corporations,
because each shareholders vote is consequential. Corporation law permits shareholders
to enter into various kinds of voting arrangements. Rather than face the uncertainty of
decisions made after a vote, shareholders in a close corporation may want certain degree
of ex ante control over voting. To do this, they typically use one of three types of devices
to control the manner in which shares will be voted: (1) voting trusts, (2) irrevocable
proxies, and (3) vote pooling agreements.
These arrangements are generally applicable to corporations, and not exclusive
provisions of close corporations. However, they are consequential when there are
relatively few shareholders as in the case of close corporations, and they are commonly
seen in close corporations. The practicality of these agreements depend on the possibility
of corralling sufficient number of votes to influence control, which is a situation seen in
close corporations or in other corporations where there are a limited number of
significant shareholders.
Voting trust.Virtually all jurisdictions permit voting trusts. See, e.g., MBCA
7.30; DGCL 218. Shareholders create a voting trust by conveying legal title to their stock
to a voting trustee or a group of trustees pursuant to the terms of a trust agreement. This
transfer is normally registered on the corporations stock transfer ledger, which shows
the trustees as legal owners of the shares. The transferring shareholders, now
beneficiaries of the trust, receive voting trust certificates in exchange for their shares.
These certificates evidence their equitable ownership of their stock. Voting trust
certificates usually are transferable and entitle the owner to receive whatever dividends
are paid on the underlying stock. They are, in effect, shares of stock shorn of their voting
power, though they often retain certain other rights such as the right to inspect the
corporate books or to institute a derivative suit. Since the terms of the trust agreement
are a matter of contract, the trustees may be given full discretion to vote the shares in the
trust for the election of directors and for any other matter to come before the shareholders,
or may be limited to voting on only certain matters. Although most states permit voting
trust, statutes may differ on whether voting trusts have term limits. Compare MBCA
7.30(c) (10 year limit on voting trust), but see DGCL 218(e) (no term limit).
Irrevocable proxies.A shareholder can give a proxy to vote her shares to
someone else, and even to give that person entire discretion to decide how they should
be voted. The ordinary proxy, like any agency power, may be revoked at the will of the
principal, and the proxy holder remains subject to the control of the principal. However,
a shareholder may want to grant an irrevocable proxy, perhaps subject to some
contingency or to the passage of a specified time. Irrevocable proxies can be seen as a
situation where the vote is separated from the stock, which may create a policy
problem. In theory, the vote should be given to someone who has a stake in the venture
such as a shareholder who has an economic stake. Accordingly, both the MBCA and the
DGCL requires that an irrevocable proxy be coupled with an interest. MBCA 7.22(d);
DGCL 212(e). Examples of an appointment of an irrevocable proxy coupled with an
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interest include: (1) a pledgee; (2) a person who purchased or agreed to purchase the
shares; (3) a creditor of the corporation who extended it credit under terms requiring the
appointment; (4) an employee of the corporation whose employment contract requires
the appointment; or (5) a party to a voting agreement created under 7.31. MBCA
7.22(d).
In determining the sufficiency of the interest, an interest in the specific stock is
obviously sufficient. Courts have also recognized an interest in the corporation more
generally, including the value of maintaining control in close corporation arrangements.
See State ex rel. Everett Trust & Sav. Bank v. Pac. Waxed Paper Co., 157 P.2d 707, 711
(Wash. 1945) (The power to vote the stock was necessary in order to make . . . control of
the corporation secure.). Delaware takes this approach broader approach. DGCL
212(e) provides: A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest in the corporation
generally. See Haft v. Haft, 671 A.2d 413 (Del.Ch. 1995) (holding that the interest that a
senior executive officer in maintaining his employment in the corporation is sufficient
under our law to render specifically enforceable the express contract for an irrevocable
proxy).
Vote pooling agreement.Another close corporation control arrangement is the
vote pooling agreement. As with voting trusts and irrevocable proxies, it is a mechanism
to bind some or all shareholders to vote together, in a particular way or pursuant to some
specified procedure, on specific questions or all questions requiring a shareholder vote.
Corporation statutes permit voting agreements. MBCA 7.31(a); DGCL 218(c);
N.Y.B.C.L. 620(a). However, enforcement can be a problem. MBCA 7.31(b) provides
that a voting agreement is subject to specific performance. The comment to MBCA 7.31
states:
Section 7.31(b) provides that voting agreements may be specifically
enforceable. A voting agreement may provide its own enforcement
mechanism, as by the appointment of a proxy to vote all shares subject to
the agreement; the appointment may be made irrevocable under section
7.22. If no enforcement mechanism is provided, a court may order specific
enforcement of the agreement and order the votes cast as the agreement
contemplates. This section recognizes that damages are not likely to be an
appropriate remedy for breach of a voting agreement, and also avoids the
result reached in Ringling Bros.Barnum & Bailey Combined Shows v. Ringling,
53 A.2d 441 (Del. 1947), where the court held that the appropriate remedy
to enforce a pooling agreement was to refuse to permit any voting of the
breaching partys shares.
The Ringling Bros. case, famous in Delaware law, raised the question whether a
vote pooling agreement constituted an invalid voting trust or irrevocable proxy.
Although deciding that the agreement was valid, the Delaware Supreme Court refused
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to find any enforcement mechanism, thus rendering empty the parties promises to pool
their votes.

D.

MINORITY PROTECTION DEVICES

A minority shareholder in a close corporation is in a vulnerable position. Without


some check on control, a minority shareholder can be exposed to the tyranny of the
majority. In a public corporation, the plight of the minority is not really a problem because
the vast majority of public shareholders have minute stakes in the corporation. The
difference is that these shareholders can readily exit the investment in the capital markets.
Shareholders in a close corporation do not have option. They are stuck in the investment.
A close corporation can be structured to provide minority shareholders some
degree of protection. Such protective measures can be related to designed board seats
and veto power on certain matters. Close corporation participants can realign the
traditional corporate structure at the shareholder level by creating special voting or
liquidity rights, at the management level by prescribing special board prerogatives or
manager duties, or both. The most basic control devices are those designed to assure that
all or certain shareholders are represented on the corporations board. Three choices are
available: (1) arrangements that ensure board representation; (2) arrangements that give
some or all shareholders the ability to veto board decisions with which they disagree; or
(3) arrangements that provide for dispute resolution or exit options. Shareholders in a
close corporation can negotiate for the proper balance of authority by the majority and
protection of the minority.
Importantly, control devices designed to protect the minority shareholder may be
worth very little if the majority shareholder retains the power to strip those protections,
whether through expansion of the board or amendment of the corporations articles or
bylaws. Consequently, such control devices often are supplemented by provisions
designed to allow the minority shareholder to approve as a class board decisions
adversely affecting the protective measures. In other words, the protective device must
itself be protected as well to ensure the integrity of the original design.
Other than election of directors, the ordinary and default rule of voting in most
corporations is majority vote of a quorum of votes. The MBCA provides the default rule
of shareholder voting.
(a) Shares entitled to vote as a separate voting group may take action on a
matter at a meeting only if a quorum of those shares exists with respect to
that matter. Unless the articles of incorporation provides otherwise, a

MBCA 7.27(b) anticipates the potential problem of an end-around through amendment of the
articles of incorporation and provides: An amendment to the articles of incorporation that adds, changes,
or deletes a greater quorum or voting requirement must meet the same quorum requirement and be
adopted by the same vote and voting groups required to take action under the quorum and voting
requirements then in effect or proposed to be adopted, whichever is greater.

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majority of the votes entitled to be cast on the matter by the voting group
constitutes a quorum of that voting group for action on that matter.
(c) If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless
the articles of incorporation require a greater number of affirmative votes.
MBCA 7.25. The articles of incorporation may provide for a greater quorum or voting
requirement of shareholders in both routine actions and fundamental changes such as
mergers and acquisitions. Id. 7.27. Similarly, the default rule of director voting is a
majority of a quorum of directors, subject to a different provision in the articles of
incorporation. Id. 8.24.

1. Supermajority Voting
The most straightforward way to create veto rights for minority shareholders is to
require that a supermajority of directors or shareholders must approve all or certain
specified actions. One approach is to require unanimous approval. Many lawyers follow
the practice of setting the supermajority requirement sufficiently high to make opposition
of one shareholder or one director sufficient to block board or shareholder action. A
requirement that a board action be approved by 80% of the directors, for example,
effectively requires unanimity if the board has four or fewer members.
The reason for the caution in this area is that a few courts have struck down
extraordinary majority voting requirements for one reason or another. See Benintendi v.
Kenton Hotel, 60 N.E.2d 829 (N.Y. 1945) (holding that bylaw provisions requiring
unanimity for any action by either the board or the shareholders were invalid as against
public policy because they made it difficult for the corporation to conduct its business
and created a substantial risk of deadlock). However, courts have come to accept the fact
that departures by close corporations from the traditional corporate model do not
inevitably entail untoward results. For example, Sutton v. Sutton, 637 N.E.2d 260 (N.Y.
1994), upheld as valid under N.Y.B.C.L. 616(b) a provision in a corporations articles of
incorporation requiring unanimous shareholder approval to transact any business,
including amendment to the articles of incorporation. Moreover, many legislatures

For example, Googles certificate of incorporation provides: Change in Control Transaction. The
Corporation shall not consummate a Change in Control Transaction without first obtaining the affirmative
vote, at a duly called annual or special meeting of the stockholders of the Corporation, of the holders of the
greater of: (A) a majority of the voting power of the issued and outstanding shares of capital stock of the
Corporation then entitled to vote thereon, voting together as a single class, and (B) sixty percent (60%) of
the voting power of the shares of capital stock present in person or represented by proxy at the stockholder
meeting called to consider the Change in Control Transaction and entitled to vote thereon, voting together
as a single class. Amended and Restated Certificate of Incorporation, Article IV, Section 3 (October 2,
2015).

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have enacted statutory provisions that authorize, specifically or by implication, high vote
requirements in the articles or bylaws. See, e.g., MBCA 2.02, 7.25(c), 8.24(c);
N.Y.B.C.L. 616, 709.

2. Class Voting
A simple technique for ensuring shareholder representation on the board or
shareholder decisions is class voting. Class voting entails dividing the voting stock into
two or more classes, each of which is entitled to elect a certain number of directors or
approve transactions as a class. For example, in the simple case of a corporation with
three shareholders, each wishing to elect one director, three classes of shares, designated
as A, B, and C shares in the articles of incorporation. Each class would have the
right to elect one director. The number and variety of changes that can be built on this
basic device are limited only by the imagination of the drafter. Classes can be created that
have differing numbers of shares, different rights in the event of liquidation, or different
dividend or preemptive rights.
Class voting has potential pitfalls. One is simply inherent in any provision that
strays from majority rule (required if minority protection is deemed necessary), which is
the potential for deadlock or obstruction. If the minority is given too much authority
(from the perspective of the majority shareholder), the ability of the minority to obstruct
or to create an impasse can lead to rent-seeking behavior by the minority. Another
potential problem is the death of the sole stockholder in the particular class. But this is an
issue that can be dealt with through planning and drafting for contingencies in the articles
of incorporation.

3. Cumulative Voting
A more complex technique for ensuring shareholder representation on the board
is cumulative voting. There are two principal methods for conducting an election of
directors. With straight voting, each share is entitled to one vote for each open
directorship. Unless the corporate statute requires majority voting, directors are elected
by a plurality of the votes cast, so those who receive the most votes are elected, even if
they receive less than a majority. See MBCA 7.28(a) (Unless otherwise provided in the
articles of incorporation, directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present.). In a straight
voting regime, any shareholder or group of shareholders controlling more than 50% of
the shares can, as a matter of legal certainty, elect all of the members of the board.

In a public company, due to diffuse shareholdings, a substantial minority stake can typical result
in de facto control of voting. For example, assume that a shareholder has 40% stake and a voting matter
requires a majority of the voting power of all outstanding shares. The shareholder needs only 10%
additional percent (plus one extra vote). This means that the shareholder needs only need 16.7% of the

12

Cumulative voting allows shareholders to elect directors in rough proportion to


the shares they own even if that number is less than 50%. In most states, cumulative
voting is available if the parties opt in in the articles. See MBCA 7.28; DGCL 214;
N.Y.B.C.L. 618. If they own the requisite number of shares, they can be guaranteed
minority representation on the board. With cumulative voting, each share again carries a
number of votes equal to the number of directors to be elected, but a shareholder may
cumulate her votes. Cumulating simply means multiplying the number of votes a
shareholder is entitled to cast by the number of directors for whom she is entitled to vote.
If there is cumulative voting, the shareholder may cast all her votes for one candidate or
allocate them in any manner among a number of candidates.
The number of shares required to elect a given number of directors under a
cumulative voting regime may be calculated by the following formula:
=
where

X
S
d
D

=
=
=
=

+1
+1

Number of shares required to elect directors


Number of shares represented at the meeting
Number of directors it is desired to elect
Total number of directors to be elected

To understand this formula, it is helpful to work through a simple example.


Suppose that three directors are to be elected at a meeting at which 1000 shares are
represented and will vote. To elect one director a minority group would have to control
251 shares. With that number, the minority group would have 753 votes (= 251 3), which
would all be cast for one candidate. The majority would have 2247 votes (= 749 3). If
the majority distributed these equally among three candidates, each would receive 749
votes, and the one candidate receiving the minoritys 753 votes would be guaranteed a
seat. In other words, holding just over 25% of the shares guarantees the election of one of
three directors. (Note that the reason for the + 1 at the end of the formula is to avoid
the tie that would occur if, in this example, the minority controlled only 250 votes. Then
it would be possible for four candidates each to receive 750 votes.)
Cumulative voting does not provide the minority shareholder with majority
representation. It simply ensures minority representation as opposed to no
representation in straight voting. Does minority representation through class voting or
cumulative voting matter where the remaining shareholders still control the vote? It may
matter in three ways. First, the remaining shareholders may not be a cohesive block. If
factions are split, the minority representation may matter quite a bit. Second, cumulative
voting may give larger minority shareholders a voice and promotes divergent points of
view, which may result in better decision-making. Third, and perhaps most important,
remaining 60% of other shareholders. With diffuse shareholders, there is a high probability that this is
achievable.

13

minority representation may discourage self-dealing and other improper conduct by the
majority faction because of more information to and monitoring by the minoritys board
representative.
The majority can undermine the effectiveness of cumulative voting. One method
is to classify the board of directors, and stagger the election of directors so each class will
be elected in different years. By staggering the elections, there will be fewer vacancies to
be filled each year, thereby making it more difficult for a minority group to place a
representative on the board. With fewer directors to be elected each year, the majority
has the advantage even under cumulative voting. Another way of undermining
cumulative voting is to decrease the board size. By so doing, the percentage of shares
necessary for a minority shareholder to elect one director is increased. The courts have
generally upheld this technique, even though it undermines cumulative voting. A
planner may guard against the implementation of these techniques by inserting anticircumvention provisions in the articles, such as requiring a supermajority vote to stagger
the board or reduce the number of directors.

E.

OPPRESSION

All too frequently in a closely held business (such as close corporations,


partnerships, and LLCs), a day comes when the owners cease to get along with each
other. The case law is replete with examples of highly personalized disputes among
family members, friends, and business partners. One principal source of difficulty is that
differences over matters of business policy or practice frequently arise from personal or
family conflicts. When money and personal relationships mix, it sometimes ends
unpleasantly. Individuals who join a corporate venture seldom think about the
possibility that one day they may have a parting of ways. Often, this uncomfortable
subject will be raised by counsel.
Developing appropriate control mechanisms can be expensive. The cost may
include the direct cost involved in anticipating possible areas of disagreement and
designing control mechanisms to deal with them. The indirect cost of potential deadlock
and obstruction made possible by granting control rights to a minority shareholder may
also be significant. As a result, many close corporations are formed without any special
dispute resolution mechanisms.
In a close corporation, a minority shareholder is subject to two kinds of potential
vulnerabilities. First, the majority can cut off minority shareholders from realizing any
return, thus leaving them holding illiquid stock that generates no current income. Second,
the majority can exercise control to frustrate the preferences of the minority.
How courts respond to dissension in close corporations has turned on two factors.
The first factor is how the courts view close corporations. Courts in some states, building
on the approach set forth in Donahue v. Rodd Electrotype Co. of New England, Inc., 328
N.E.2d 505 (Mass. 1975), have analogized the relationship among close corporation
participants to that of partners, holding shareholders to high standards of fairness. Courts
14

in other states, Delaware in particular, have rejected the partnership analogy and held
that when participants in a business venture adopt the corporate form, they also agree to
be bound by the traditional norms of corporation law, including centralized management
and majority rule. The second factor is whether the legislature in the relevant jurisdiction
has included in its corporate statute provisions aimed at protecting shareholders in close
corporations. Many state laws now authorize courts to order dissolution or to take other
remedial actions to protect shareholders who show that the majority has oppressed the
minority.

1. Fiduciary Duty Approach


Donahue v. Rodd Electrotype Co. of New England, Inc.
328 N.E.2d 505 (Mass. 1975)
TAURO, CHIEF JUSTICE:
The plaintiff, Euphemia Donahue, a minority stockholder in the Rodd Electrotype
Company of New England, Inc. (Rodd Electrotype), a Massachusetts corporation, brings
this suit against the directors of Rodd Electrotype, Charles H. Rodd, Frederick I. Rodd
and Mr. Harold E. Magnuson, against Harry C. Rodd, a former director, officer, and
controlling stockholder of Rodd Electrotype and against Rodd Electrotype (hereinafter
called defendants). The plaintiff seeks to rescind Rodd Electrotype's purchase of Harry
Rodd's shares in Rodd Electrotype and to compel Harry Rodd to repay to the
corporation the purchase price of said shares, $36,000, together with interest from the
date of purchase. The plaintiff alleges that the defendants caused the corporation to
purchase the shares in violation of their fiduciary duty to her, a minority stockholder of
Rodd Electrotype.
The trial judge, after hearing oral testimony, dismissed the plaintiff's bill on the
merits. He found that the purchase was without prejudice to the plaintiff and implicitly
found that the transaction had been carried out in good faith and with inherent fairness.
The Appeals Court affirmed with costs.
[After several corporate and stock purchase transactions, Harry Rodd owned 200
shares of Rodd Electrotype and Joseph Donahue owned 50 shares. Subsequently, Harry
engaged in a series of gifts to his three children, resulting in Charles Rodd, Frederick
Rodd, and Phyllis Mason each owning 51 shares. The directors of the company (Charles,
Frederick and the companys lawyer) authorized the president, Charles, to repurchase on
behalf of the company 45 shares of Harrys stock for $800 per share ($36,000). This
transaction divested Harry totally. When the Donahues found about the stock
repurchase, they sought to have the company repurchase their shares on equal terms as
Harry received. The company refused to do so.]
In her argument before this court, the plaintiff has characterized the corporate
purchase of Harry Rodd's shares as an unlawful distribution of corporate assets to
15

controlling stockholders. She urges that the distribution constitutes a breach of the
fiduciary duty owed by the Rodds, as controlling stockholders, to her, a minority
stockholder in the enterprise, because the Rodds failed to accord her an equal opportunity
to sell her shares to the corporation. The defendants reply that the stock purchase was
within the powers of the corporation and met the requirements of good faith and inherent
fairness imposed on a fiduciary in his dealings with the corporation. They assert that
there is no right to equal opportunity in corporate stock purchases for the corporate
treasury. For the reasons hereinafter noted, we agree with the plaintiff and reverse the
decree of the Superior Court. However, we limit the applicability of our holding to close
corporations, as hereinafter defined. Whether the holding should apply to other
corporations is left for decision in another case, on a proper record.
A. Close Corporations. In previous opinions, we have alluded to the distinctive
nature of the close corporation, but have never defined precisely what is meant by a close
corporation. There is no single, generally accepted definition. Some commentators
emphasize an integration of ownership and management. Others focus on the number
of stockholders and the nature of the market for the stock. In this view, close corporations
have few stockholders; there is little market for corporate stock. The Supreme Court of
Illinois adopted this latter view: For our purposes, a close corporation is one in which
the stock is held in a few hands, or in a few families, and wherein it is not at all, or only
rarely, dealt in by buying or selling. We accept aspects of both definitions. We deem a
close corporation to the typified by: (1) a small number of stockholders; (2) no ready
market for the corporate stock; and (3) substantial majority stockholder participation in
the management, direction and operations of the corporation.
As thus defined, the close corporation bears striking resemblance to a partnership.
Commentators and courts have noted that the close corporation is often little more than
an incorporated or chartered partnership. The stockholders clothe their
partnership with the benefits peculiar to a corporation, limited liability, perpetuity and
the like. In essence, though, the enterprise remains one in which ownership is limited to
the original parties or transferees of their stock to whom the other stockholders have
agreed, in which ownership and management are in the same hands, and in which the
owners are quite dependent on one another for the success of the enterprise. Many close
corporations are really partnerships, between two or three people who contribute their
capital, skills, experience and labor. Just as in a partnership, the relationship among the
stockholders must be one of trust, confidence and absolute loyalty if the enterprise is to
succeed. Close corporations with substantial assets and with more numerous
stockholders are no different from smaller close corporations in this regard. All
participants rely on the fidelity and abilities of those stockholders who hold office.
Disloyalty and self-seeking conduct on the part of any stockholder will engender
bickering, corporate stalemates, and, perhaps, efforts to achieve dissolution.
Although the corporate form provides the above-mentioned advantages for the
stockholders (limited liability, perpetuity, and so forth), it also supplies an opportunity
for the majority stockholders to oppress or disadvantage minority stockholders. The
minority is vulnerable to a variety of oppressive devices, termed freezeouts, which the
16

majority may employ. An authoritative study of such freeze-outs enumerates some of


the possibilities: The squeezers (those who employ the freeze-out techniques) may
refuse to declare dividends; they may drain off the corporations earnings in the form of
exorbitant salaries and bonuses to the majority shareholder-officers and perhaps to their
relatives, or in the form of high rent by the corporation for property leased from majority
shareholders . . .; they may deprive minority shareholders of corporate offices and of
employment by the company; they may cause the corporation to sell its assets at an
inadequate price to the majority shareholders . . . . In particular, the power of the board
of directors, controlled by the majority, to declare or withhold dividends and to deny the
minority employment is easily converted to a device to disadvantage minority
stockholders.
The minority can, of course, initiate suit against the majority and their directors.
Self-serving conduct by directors is proscribed by the director's fiduciary obligation to
the corporation. However, in practice, the plaintiff will find difficulty in challenging
dividend or employment policies. Such policies are considered to be within the judgment
of the directors. This court has said: The courts prefer not to interfere . . . with the sound
financial management of the corporation by its directors, but declare as general rule that
the declaration of dividends rests within the sound discretion of the directors, refusing
to interfere with their determination unless a plain abuse of discretion is made to appear.
Judicial reluctance to interfere combines with the difficulty of proof when the standard is
plain abuse of discretion or bad faith to limit the possibilities for relief. Although
contractual provisions in an agreement of association and articles of organization or in
by-laws have justified decrees in this jurisdiction ordering dividend declarations,
generally, plaintiffs who seek judicial assistance against corporate dividend or
employment policies do not prevail.
Thus, when these types of freeze-outs are attempted by the majority
stockholders, the minority stockholders, cut off from all corporation-related revenues,
must either suffer their losses or seek a buyer for their shares. Many minority
stockholders will be unwilling or unable to wait for an alteration in majority policy.
Typically, the minority stockholder in a close corporation has a substantial percentage of
his personal assets invested in the corporation. The stockholder may have anticipated
that his salary from his position with the corporation would be his livelihood. Thus, he
cannot afford to wait passively. He must liquidate his investment in the close corporation
in order to reinvest the funds in income-producing enterprises.
At this point, the true plight of the minority stockholder in a close corporation
becomes manifest. He cannot easily reclaim his capital. In a large public corporation, the
oppressed or dissident minority stockholder could sell his stock in order to extricate some
of his invested capital. By definition, this market is not available for shares in the close
corporation. In a partnership, a partner who feels abused by his fellow partners may
cause dissolution by his express will . . . at any time and recover his share of partnership
assets and accumulated profits. If dissolution results in a breach of the partnership
articles, the culpable partner will be liable in damages. By contrast, the stockholder in the
close corporation or incorporated partnership may achieve dissolution and recovery of
17

his share of the enterprise assets only by compliance with the rigorous terms of the
applicable chapter of the General Laws. The dissolution of a corporation which is a
creature of the Legislature is primarily a legislative function, and the only authority
courts have to deal with this subject is the power conferred upon them by the
Legislature. To secure dissolution of the ordinary close corporation, the stockholder, in
the absence of corporate deadlock, must own at least fifty per cent of the shares or have
the advantage of a favorable provision in the articles of organization. The minority
stockholder, by definition lacking fifty per cent of the corporate shares, can never
authorize the corporation to file a petition for dissolution by his own vote. He will
seldom have at his disposal the requisite favorable provision in the articles of
organization.
Thus, in a close corporation, the minority stockholders may be trapped in a
disadvantageous situation. No outsider would knowingly assume the position of the
disadvantaged minority. The outsider would have the same difficulties. To cut losses, the
minority stockholder may be compelled to deal with the majority. This is the capstone of
the majority plan. Majority freeze-out schemes which withhold dividends are designed
to compel the minority to relinquish stock at inadequate prices. When the minority
stockholder agrees to sell out at less than fair value, the majority has won.
Because of the fundamental resemblance of the close corporation to the
partnership, the trust and confidence which are essential to this scale and manner of
enterprise, and the inherent danger to minority interests in the close corporation, we hold
that stockholders in the close corporation owe one another substantially the same
fiduciary duty in the operation of the enterprise that partners owe to one another. In our
previous decisions, we have defined the standard of duty owed by partners to one
another as the utmost good faith and loyalty. Stockholders in close corporations must
discharge their management and stockholder responsibilities in conformity with this
strict good faith standard. They may not act out of avarice, expediency or self-interest in
derogation of their duty of loyalty to the other stockholders and to the corporation.
We contrast this strict good faith standard with the somewhat less stringent
standard of fiduciary duty to which directors and stockholders20 of all corporations must
adhere in the discharge of their corporate responsibilities. Corporate directors are held to
a good faith and inherent fairness standard of conduct and are not permitted to serve
two masters whose interests are antagonistic. Their paramount duty is to the
corporation, and their personal pecuniary interests are subordinate to that duty.
The more rigorous duty of partners and participants in a joint adventure, here
extended to stockholders in a close corporation, was described by then Chief Judge
Cardozo of the New York Court of Appeals in Meinhard v. Salmon, 164 N.E. 545 (N.Y.
1928): Joint adventurers, like copartners, owe to one another, while the enterprise
continues, the duty of the finest loyalty. Many forms of conduct permissible in a
The rule set out in many jurisdictions is: The majority has the right to control; but when it does
so, it occupies a fiduciary relations toward the minority, as much so as the corporation itself or its officers
and directors.
20

18

workaday world for those acting at arm's length, are forbidden to those bound by
fiduciary ties. . . . Not honesty alone, but the punctilio of an honor the most sensitive, is
then the standard of behavior.
Application of this strict standard of duty to stockholders in close corporations is
a natural outgrowth of the prior case law. In a number of cases involving close
corporations, we have held stockholders participating in management to a standard of
fiduciary duty more exacting than the traditional good faith and inherent fairness
standard because of the trust and confidence reposed in them by the other stockholders.
[W]e have imposed a duty of loyalty more exacting than that duty owed by a
director to his corporation or by a majority stockholder to the minority in a public
corporation because of facts particular to the close corporation in the cases. In the instant
case, we extend this strict duty of loyalty to all stockholders in close corporations. The
circumstances which justified findings of relationships of trust and confidence in these
particular cases exist universally in modified form in all close corporations.
B. Equal Opportunity in a Close Corporation. Under settled Massachusetts law, a
domestic corporation, unless forbidden by statute, has the power to purchase its own
shares. An agreement to reacquire stock (is) enforceable, subject, at least, to the
limitations that the purchase must be made in good faith and without prejudice to
creditors and stockholders. When the corporation reacquiring its own stock is a close
corporation, the purchase is subject to the additional requirement, in the light of our
holding in this opinion, that the stockholders, who, as directors or controlling
stockholders, caused the corporation to enter into the stock purchase agreement, must
have acted with the utmost good faith and loyalty to the other stockholders.
To meet this test, if the stockholder whose shares were purchased was a member
of the controlling group, the controlling stockholders must cause the corporation to offer
each stockholder an equal opportunity to sell a ratable number of his shares to the
corporation at an identical price. Purchase by the corporation confers substantial benefits
on the members of the controlling group whose shares were purchased. These benefits
are not available to the minority stockholders if the corporation does not also offer them
an opportunity to sell their shares. The controlling group may not, consistent with its
strict duty to the minority, utilize its control of the corporation to obtain special
advantages and disproportionate benefit from its share ownership.
The benefits conferred by the purchase are twofold: (1) provision of a market for
shares; (2) access to corporate assets for personal use. By definition, there is no ready
market for shares of a close corporation. The purchase creates a market for shares which
previously had been unmarketable. It transforms a previously illiquid investment into a
liquid one. If the close corporation purchases shares only from a member of the
controlling group, the controlling stockholder can convert his shares into cash at a time
when none of the other stockholders can. Consistent with its strict fiduciary duty, the
controlling group may not utilize its control of the corporation to establish an exclusive
market in previously unmarketable shares from which the minority stockholders are
excluded.

19

The purchase also distributes corporate assets to the stockholder whose shares
were purchased. Unless an equal opportunity is given to all stockholders, the purchase
of shares from a member of the controlling group operates as a preferential distribution
of assets. In exchange for his shares, he receives a percentage of the contributed capital
and accumulated profits of the enterprise. The funds he so receives are available for his
personal use. The other stockholders benefit from no such access to corporate property
and cannot withdraw their shares of the corporate profits and capital in this manner
unless the controlling group acquiesces. Although the purchase price for the controlling
stockholder's shares may seem fair to the corporation and other stockholders under the
tests established in the prior case law, the controlling stockholder whose stock has been
purchased has still received a relative advantage over his fellow stockholders,
inconsistent with his strict fiduciary dutyan opportunity to turn corporate funds to
personal use.
The rule of equal opportunity in stock purchases by close corporations provides
equal access to these benefits for all stockholders. We hold that, in any case in which the
controlling stockholders have exercised their power over the corporation to deny the
minority such equal opportunity, the minority shall be entitled to appropriate relief. 25
C. Application of the Law to this Case. We turn now to the application of the learning
set forth above to the facts of the instant case.
The strict standard of duty is plainly applicable to the stockholders in Rodd
Electrotype. Rodd Electrotype is a close corporation. Members of the Rodd and Donahue
families are the sole owners of the corporation's stock. In actual numbers, the corporation,
immediately prior to the corporate purchase of Harry Rodd's shares, had six
stockholders. The shares have not been traded, and no market for them seems to exist.
Harry Rodd, Charles Rodd, Frederick Rodd, William G. Mason (Phyllis Mason's
husband), and the plaintiff's husband all worked for the corporation. The Rodds have
retained the paramount management positions.
Through their control of these management positions and of the majority of the
Rodd Electrotype stock, the Rodds effectively controlled the corporation. In testing the
stock purchase from Harry Rodd against the applicable strict fiduciary standard, we treat
the Rodd family as a single controlling group. We reject the defendants' contention that
the Rodd family cannot be treated as a unit for this purpose. From the evidence, it is clear
that the Rodd family was a close-knit one with strong community of interest. Harry Rodd
Under the Massachusetts law, (n)o stockholder shall have any pre-emptive right to acquire stock
of the corporation except to the extent provided in the articles of organization or in a by-law adopted by
and subject to amendment only by the stockholders. We do not here suggest that such pre-emptive rights
are required by the strict fiduciary duty applicable to the stockholders of close corporations. However, to
the extent that a controlling stockholder or other stockholder, in violation of his fiduciary duty, causes the
corporation to issue stock in order to expand his holdings or to dilute holdings of other stockholders, the
other stockholders will have a right to relief in court. Even under the traditional standard of duty applicable
to corporate directors and stockholders generally, this court has looked favorably upon stockholder
challenges to stock issues which, in violation of a fiduciary duty, served personal interests of other
stockholder/directors and did not serve the corporate interest.
25

20

had hired his sons to work in the family business, Rodd Electrotype. As he aged, he
transferred portions of his stock holdings to his children. Charles Rodd and Frederick
Rodd were given positions of responsibility in the business as he withdrew from active
management. In these circumstances, it is realistic to assume that appreciation, gratitude,
and filial devotion would prevent the younger Rodds from opposing a plan which would
provide funds for their father's retirement.
On its face, then, the purchase of Harry Rodd's shares by the corporation is a
breach of the duty which the controlling stockholders, the Rodds, owed to the minority
stockholders, the plaintiff and her son. The purchase distributed a portion of the
corporate assets to Harry Rodd, a member of the controlling group, in exchange for his
shares. The plaintiff and her son were not offered an equal opportunity to sell their shares
to the corporation. In fact, their efforts to obtain an equal opportunity were rebuffed by
the corporate representative. As the trial judge found, they did not, in any manner, ratify
the transaction with Harry Rodd.
Because of the foregoing, we hold that the plaintiff is entitled to relief. Two forms
of suitable relief are set out hereinafter. The judge below is to enter an appropriate
judgment. The judgment may require Harry Rodd to remit $36,000 with interest at the
legal rate from July 15, 1970, to Rodd Electrotype in exchange for forty-five shares of Rodd
Electrotype treasury stock. This, in substance, is the specific relief requested in the
plaintiff's bill of complaint. Interest is manifestly appropriate. A stockholder, who, in
violation of his fiduciary duty to the other stockholders, has obtained assets from his
corporation and has had those assets available for his own use, must pay for that use. In
the alternative, the judgment may require Rodd Electrotype to purchase all of the
plaintiff's shares for $36,000 without interest. In the circumstances of this case, we view
this as the equal opportunity which the plaintiff should have received. Harry Rodd's
retention of thirty-six shares, which were to be sold and given to his children within a
year of the Rodd Electrotype purchase, cannot disguise the fact that the corporation
acquired one hundred per cent of that portion of his holdings (forty-five shares) which
he did not intend his children to own. The plaintiff is entitled to have one hundred per
cent of her forty-five shares similarly purchased.

Wilkes v. Springside Nursing Home, Inc.


353 N.E.2d 657 (Mass. 1976)
HENNESSEY, CHIEF JUSTICE:
On August 5, 1971, the plaintiff (Wilkes) filed a bill in equity for declaratory
judgment in the Probate Court for Berkshire County, naming as defendants T. Edward
Quinn (Quinn), Leon L. Riche (Riche), the First Agricultural National Bank of Berkshire
County and Frank Sutherland MacShane as executors under the will of Lawrence R.
Connor (Connor), and the Springside Nursing Home, Inc. (Springside or the corporation).
21

Wilkes alleged that he, Quinn, Riche and Dr. Hubert A. Pipkin (Pipkin) entered into a
partnership agreement in 1951, prior to the incorporation of Springside, which agreement
was breached in 1967 when Wilkess salary was terminated and he was voted out as an
officer and director of the corporation. Wilkes sought, among other forms of relief,
damages in the amount of the salary he would have received had he continued as a
director and officer of Springside subsequent to March, 1967.
A judgment was entered dismissing Wilkess action on the merits. We granted
direct appellate review. On appeal, Wilkes argued in the alternative that (1) he should
recover damages for breach of the alleged partnership agreement; and (2) he should
recover damages because the defendants, as majority stockholders in Springside,
breached their fiduciary duty to him as a minority stockholder by their action in February
and March, 1967.
We reverse so much of the judgment as dismisses Wilkess complaint and order
the entry of a judgment substantially granting the relief sought by Wilkes under the
second alternative set forth above.
In 1951, Wilkes, Riche, Quinn, and Pipkin purchased a building to use as a nursing
home. Ownership of the property was vested in Springside, a corporation organized
under Massachusetts law.
Each of the four men invested $1,000 and subscribed to ten shares of $100 par value
stock in Springside.6 At the time of incorporation, it was understood by all of the parties
that each would be a director of Springside and each would participate actively in the
management and decision making involved in operating the corporation.7 It was, further,
the understanding and intention of all the parties that, corporate resources permitting,
each would receive money from the corporation in equal amounts as long as each
assumed an active and ongoing responsibility for carrying a portion of the burdens
necessary to operate the business.
The work involved in establishing and operating a nursing home was roughly
apportioned, and each of the four men undertook his respective tasks.
At some time in 1952, it became apparent that the operational income and cash
flow from the business were sufficient to permit the four stockholders to draw money
from the corporation on a regular basis. Each of the four original parties initially received
$35 a week from the corporation. As time went on the weekly return to each was
increased until, in 1955, it totalled $100.
In 1959, after a long illness, Pipkin sold his shares in the corporation to Connor,
who was known to Wilkes, Riche and Quinn through past transactions with Springside
in his capacity as president of the First Agricultural National Bank of Berkshire County.
6 On May 2, 1955, and again on December 23, 1958, each of the four original investors paid for and was issued additional
shares of $100 par value stock, eventually bringing the total number of shares owned by each to 115.

Wilkes testified before the master that, when the corporate officers were elected, all four men were
guaranteed directorships. Riches understanding of the parties intentions was that they all wanted to play
a part in the management of the corporation and wanted to have some say in the risks involved; that, to
this end, they all would be directors; and that unless you [were] a director and officer you could not
participate in the decisions of [the] enterprise.
7

22

Connor received a weekly stipend from the corporation equal to that received by Wilkes,
Riche and Quinn. He was elected a director of the corporation but never held any other
office. He was assigned no specific area of responsibility in the operation of the nursing
home but did participate in business discussions and decisions as a director and served
additionally as financial adviser to the corporation.
Beginning in 1965, personal relationships between Wilkes and the other
shareholders began to deteriorate. As a consequence of the strained relations among the
parties, Wilkes, in January of 1967, gave notice of his intention to sell his shares for an
amount based on an appraisal of their value. In February of 1967 a directors meeting was
held and the board exercised its right to establish the salaries of its officers and
employees.10 A schedule of payments was established whereby Quinn was to receive a
substantial weekly increase and Riche and Connor were to continue receiving $100 a
week. Wilkes, however, was left off the list of those to whom a salary was to be paid. The
directors also set the annual meeting of the stockholders for March, 1967.
At the annual meeting in March, Wilkes was not reelected as a director, nor was
he reelected as an officer of the corporation. He was further informed that neither his
services nor his presence at the nursing home was wanted by his associates.
The meetings of the directors and stockholders in early 1967, the master found,
were used as a vehicle to force Wilkes out of active participation in the management and
operation of the corporation and to cut off all corporate payments to him. Though the
board of directors had the power to dismiss any officers or employees for misconduct or
neglect of duties, there was no indication in the minutes of the board of directors meeting
of February, 1967, that the failure to establish a salary for Wilkes was based on either
ground. The severance of Wilkes from the payroll resulted not from misconduct or
neglect of duties, but because of the personal desire of Quinn, Riche and Connor to
prevent him from continuing to receive money from the corporation. Despite a
continuing deterioration in his personal relationship with his associates, Wilkes had
consistently endeavored to carry on his responsibilities to the corporation in the same
satisfactory manner and with the same degree of competence he had previously shown.
Wilkes was at all times willing to carry on his responsibilities and participation if
permitted so to do and provided that he receive his weekly stipend.
1.
We turn to Wilkess claim for damages based on a breach of the fiduciary
duty owed to him by the other participants in this venture. In light of the theory
underlying this claim, we do not consider it vital to our approach to this case whether the
claim is governed by partnership law or the law applicable to business corporations. This
is so because, as all the parties agree, Springside was at all times relevant to this action, a
close corporation as we have recently defined such an entity in Donahue v. Rodd Electrotype
Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975).
The by-laws of the corporation provided that the directors, subject to the approval of the
stockholders, had the power to fix the salaries of all officers and employees. This power, however, up until
February, 1967, had not been exercised formally; all payments made to the four participants in the venture
had resulted from the informal but unanimous approval of all the parties concerned.
10

23

In Donahue, we held that stockholders in the close corporation owe one another
substantially the same fiduciary duty in the operation of the enterprise that partners owe
to one another. As determined in previous decisions of this court, the standard of duty
owed by partners to one another is one of utmost good faith and loyalty. Thus, we
concluded in Donahue, with regard to their actions relative to the operations of the
enterprise and the effects of that operation on the rights and investments of other
stockholders, stockholders in close corporations must discharge their management and
stockholder responsibilities in conformity with this strict good faith standard. They may
not act out of avarice, expediency or self-interest in derogation of their duty of loyalty to
the other stockholders and to the corporation.
In the Donahue case we recognized that one peculiar aspect of close corporations
was the opportunity afforded to majority stockholders to oppress, disadvantage or
freeze out minority stockholders. In Donahue itself, for example, the majority refused
the minority an equal opportunity to sell a ratable number of shares to the corporation at
the same price available to the majority. The net result of this refusal, we said, was that
the minority could be forced to sell out at less than fair value, since there is by definition
no ready market for minority stock in a close corporation.
Freeze outs, however, may be accomplished by the use of other devices. One
such device which has proved to be particularly effective in accomplishing the purpose
of the majority is to deprive minority stockholders of corporate offices and of
employment with the corporation. F.H. ONeal, SQUEEZE-OUTS OF MINORITY
SHAREHOLDERS 59, 7879 (1975). This freeze-out technique has been successful because
courts fairly consistently have been disinclined to interfere in those facets of internal
corporate operations, such as the selection and retention or dismissal of officers, directors
and employees, which essentially involve management decisions subject to the principle
of majority control. As one authoritative source has said, Many courts apparently feel
that there is a legitimate sphere in which the controlling directors or shareholders can act
in their own interest even if the minority suffers. F.H. ONeal, supra at 59 (footnote
omitted).
The denial of employment to the minority at the hands of the majority is especially
pernicious in some instances. A guaranty of employment with the corporation may have
been one of the basic reasons why a minority owner has invested capital in the firm.
The minority stockholder typically depends on his salary as the principal return on his
investment, since the earnings of a close corporation are distributed in major part in
salaries, bonuses and retirement benefits. 1 F.H. ONeal, CLOSE CORPORATIONS 1.07
(1971).13 Other noneconomic interests of the minority stockholder are likewise injuriously
affected by barring him from corporate office. Such action severely restricts his
participation in the management of the enterprise, and he is relegated to enjoying those
benefits incident to his status as a stockholder. In sum, by terminating a minority
stockholders employment or by severing him from a position as an officer or director,

13

We note here that the master found that Springside never declared or paid a dividend to its stockholders.

24

the majority effectively frustrate the minority stockholders purposes in entering on the
corporate venture and also deny him an equal return on his investment.
The distinction between the majority action in Donahue and the majority action in
this case is more one of form than of substance. Nevertheless, we are concerned that
untempered application of the strict good faith standard enunciated in Donahue to cases
such as the one before us will result in the imposition of limitations on legitimate action
by the controlling group in a close corporation which will unduly hamper its
effectiveness in managing the corporation in the best interests of all concerned. The
majority, concededly, have certain rights to what has been termed selfish ownership in
the corporation which should be balanced against the concept of their fiduciary
obligation to the minority.
Therefore, when minority stockholders in a close corporation bring suit against
the majority alleging a breach of the strict good faith duty owed to them by the majority,
we must carefully analyze the action taken by the controlling stockholders in the
individual case. It must be asked whether the controlling group can demonstrate a
legitimate business purpose for its action. In asking this question, we acknowledge the
fact that the controlling group in a close corporation must have some room to maneuver
in establishing the business policy of the corporation. It must have a large measure of
discretion, for example, in declaring or withholding dividends, deciding whether to
merge or consolidate, establishing the salaries of corporate officers, dismissing directors
with or without cause, and hiring and firing corporate employees.
When an asserted business purpose for their action is advanced by the majority,
however, we think it is open to minority stockholders to demonstrate that the same
legitimate objective could have been achieved through an alternative course of action less
harmful to the minoritys interest. If called on to settle a dispute, our courts must weigh
the legitimate business purpose, if any, against the practicability of a less harmful
alternative.
Applying this approach to the instant case it is apparent that the majority
stockholders in Springside have not shown a legitimate business purpose for severing
Wilkes from the payroll of the corporation or for refusing to reelect him as a salaried
officer and director. The masters subsidiary findings relating to the purpose of the
meetings of the directors and stockholders in February and March, 1967, are supported
by the evidence. There was no showing of misconduct on Wilkess part as a director,
officer or employee of the corporation which would lead us to approve the majority
action as a legitimate response to the disruptive nature of an undesirable individual bent
on injuring or destroying the corporation. On the contrary, it appears that Wilkes had
always accomplished his assigned share of the duties competently, and that he had never
indicated an unwillingness to continue to do so.
It is an inescapable conclusion from all the evidence that the action of the majority
stockholders here was a designed freeze out for which no legitimate business purpose
has been suggested. Furthermore, we may infer that a design to pressure Wilkes into

25

selling his shares to the corporation at a price below their value well may have been at
the heart of the majoritys plan.14
In the context of this case, several factors bear directly on the duty owed to Wilkes
by his associates. At a minimum, the duty of utmost good faith and loyalty would
demand that the majority consider that their action was in disregard of a long-standing
policy of the stockholders that each would be a director of the corporation and that
employment with the corporation would go hand in hand with stock ownership; that
Wilkes was one of the four originators of the nursing home venture; and that Wilkes, like
the others, had invested his capital and time for more than fifteen years with the
expectation that he would continue to participate in corporate decisions. Most important
is the plain fact that the cutting off of Wilkess salary, together with the fact that the
corporation never declared a dividend, assured that Wilkes would receive no return at
all from the corporation.
2.
The question of Wilkess damages at the hands of the majority has not been
thoroughly explored on the record before us. Wilkes, in his original complaint, sought
damages in the amount of the $100 a week he believed he was entitled to from the time
his salary was terminated up until the time this action was commenced. However, the
record shows that, after Wilkes was severed from the corporate payroll, the schedule of
salaries and payments made to the other stockholders varied from time to time. In
addition, the duties assumed by the other stockholders after Wilkes was deprived of his
share of the corporate earnings appear to have changed in significant respects. Any
resolution of this question must take into account whether the corporation was dissolved
during the pendency of this litigation.
Therefore our order is as follows: So much of the judgment as dismisses Wilkess
complaint and awards costs to the defendants is reversed.
***
One recurring issue is whether a minority shareholder who is dismissed as an
employee has a claim for a breach of fiduciary duty. In many close corporations,
shareholders view employment as an intrinsic aspect of their investment. If the
corporations dividends are taxed at both the corporate and shareholder level, amounts
paid as deductible salary and bonuses often represent implicit dividends that are taxed
only at the shareholder level. Separating employment and corporate claims in the close
corporation has proved difficult.

Merola v. Exergen Corp.


668 N.E.2d 351 (Mass. 1996)

14 This inference arises from the fact that Connor, acting on behalf of the three controlling stockholders, offered to purchase
Wilkess shares for a price Connor admittedly would not have accepted for his own shares.

26

[A minority shareholder brought a fiduciary claim after being terminated from


employment for commenting critically about an extra-marital relationship between the
companys president and majority shareholder. The minority shareholder, Merola,
claimed that he had joined the company on the understanding he would have the
opportunity to invest in company shares and become a major shareholder. After being
hired, he had purchased a significant number of shares. The trial judge ruled that the
majority shareholder, Pompei, had terminated Merola for no legitimate business
purpose, thus breaching a fiduciary duty to honor the reasonable expectations that
Merola had concerning his investment of time and money in the company. On appeal,
the Massachusetts Supreme Judicial Court rejected the linkage between Merolas
shareholding and employment rights.]
We agree with the judges conclusion that Exergen was a close corporation, and
that stockholders in a close corporation owe one another a fiduciary duty of utmost good
faith and loyalty. Even in close corporations, the majority interest must have a large
measure of discretion, for example, in declaring or withholding dividends, deciding
whether to merge or consolidate, establishing the salaries of corporate officers,
dismissing directors with or without cause, and hiring and firing corporate employees.
Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 851, 353 N.E.2d 657 (1976).
Principles of employment law permit the termination of employees at will, with
or without cause excepting situations within a narrow public policy exception.
Here, although the plaintiff invested in the stock of Exergen with the reasonable
expectation of continued employment, there was no general policy regarding stock
ownership and employment, and there was no evidence that any other stockholders had
expectations of continuing employment because they purchased stock. The investment
in the stock was an investment in the equity of the corporation which was not tied to
employment in any formal way.
Unlike the Wilkes case, there was no evidence that the corporation distributed all
profits to shareholders in the form of salaries. On the contrary, the perceived value of the
stock increased during the time that the plaintiff was employed. The plaintiff first
purchased his stock at $2.25 per share and, one year later, he purchased more for $5 per
share. This indicated that there was some increase in value to the investment independent
of the employment expectation. Neither was the plaintiff a founder of the business, his
stock purchases were made after the business was established, and there was no
suggestion that he had to purchase stock to keep his job.
The plaintiff testified that, when he sold his stock back to the corporation four
years after being terminated, he was paid $17 per share. This was a price that had been
paid to other shareholders who sold their shares to the corporation at a previous date,
and it is a price which, after consulting with his attorney, he concluded was a fair price.
With this payment, the plaintiff realized a significant return on his capital investment
independent of the salary he received as an employee.
We conclude that this is not a situation where the majority shareholder breached
his fiduciary duty to a minority shareholder. The controlling group in a close
27

corporation must have some room to maneuver in establishing the business policy of the
corporation. Wilkes v. Springside Nursing Home, Inc., supra at 851, 353 N.E.2d 657.
Although there was no legitimate business purpose for the termination of the plaintiff,
neither was the termination for the financial gain of Pompei or contrary to established
public policy. Not every discharge of an at-will employee of a close corporation who
happens to own stock in the corporation gives rise to a successful breach of fiduciary duty
claim.
***

Nixon v. Blackwell
626 A.2d 1366 (Del. 1993)
[Plaintiffs, descendants of the founder of E.C. Barton & Co., held Class B nonvoting stock. Plaintiffs claimed that the directors of the corporation had treated them
unfairly by establishing an employee stock ownership plan (ESOP) and purchasing key
man life insurance to enable defendants and other employees to sell their stock while
providing no comparable liquidity for Class B shareholders. The Delaware Supreme
Court agreed with the Vice Chancellor that the Corporation had not provided
substantially equal treatment to employee and non-employee shareholders, but held that
this lack of parity was not unfair because the ESOP and key man insurance advanced
legitimate corporate objectives.]
VEASEY, CHIEF JUSTICE:
NO SPECIAL RULES FOR A CLOSELYHELD CORPORATION NOT QUALIFIED AS A
CLOSE CORPORATION UNDER SUBCHAPTER XIV OF THE DELAWARE GENERAL
CORPORATION LAW
We wish to address one further matter which was raised at oral argument before
this Court: Whether there should be any special, judicially-created rules to protect
minority stockholders of closely-held Delaware corporations.
The case at bar points up the basic dilemma of minority stockholders in receiving
fair value for their stock as to which there is no market and no market valuation. It is not
difficult to be sympathetic, in the abstract, to a stockholder who finds himself or herself
in that position. A stockholder who bargains for stock in a closely-held corporation and
who pays for those shares can make a business judgment whether to buy into such a
minority position, and if so on what terms. One could bargain for definitive provisions
of self-ordering permitted to a Delaware corporation through the certificate of
incorporation or bylaws by reason of the provisions in 8 Del.C. 102, 109, and 141(a).
Moreover, in addition to such mechanisms, a stockholder intending to buy into a
minority position in a Delaware corporation may enter into definitive stockholder
28

agreements, and such agreements may provide for elaborate earnings tests, buy-out
provisions, voting trusts, or other voting agreements. See, e.g., 8 Del.C. 218.
The tools of good corporate practice are designed to give a purchasing minority
stockholder the opportunity to bargain for protection before parting with consideration.
It would do violence to normal corporate practice and our corporation law to fashion an
ad hoc ruling which would result in a court-imposed stockholder buy-out for which the
parties had not contracted.
In 1967, when the Delaware General Corporation Law was significantly revised, a
new Subchapter XIV entitled Close Corporations; Special Provisions, became a part of
that law for the first time. While these provisions were patterned in theory after close
corporation statutes in Florida and Maryland, the Delaware provisions were unique and
influenced the development of similar legislation in a number of other states. See Ernest
L. Folk, III, Rodman Ward, Jr., and Edward P. Welch, 2 FOLK ON THE DELAWARE GENERAL
CORPORATION LAW 404 (1988). Subchapter XIV is a narrowly constructed statute which
applies only to a corporation which is designated as a close corporation in its certificate
of incorporation, and which fulfills other requirements, including a limitation to 30 on
the number of stockholders, that all classes of stock have to have at least one restriction
on transfer, and that there be no public offering. 8 Del.C. 342. Accordingly, subchapter
XIV applies only to close corporations, as defined in section 342. Unless a corporation
elects to become a close corporation under this subchapter in the manner prescribed in
this subchapter, it shall be subject in all respects to this chapter, except this subchapter.
8 Del.C. 341. The corporation before the Court in this matter, is not a close
corporation. Therefore it is not governed by the provisions of Subchapter XIV. 19
One cannot read into the situation presented in the case at bar any special relief
for the minority stockholders in this closely-held, but not statutory close corporation
because the provisions of Subchapter XIV relating to close corporations and other
statutory schemes preempt the field in their respective areas. It would run counter to the
spirit of the doctrine of independent legal significance, and would be inappropriate
judicial legislation for this Court to fashion a special judicially-created rule for minority
investors when the entity does not fall within those statutes, or when there are no
negotiated special provisions in the certificate of incorporation, bylaws, or stockholder
agreements.

2. Contractual and Tort Approaches

19 We do not intend to imply that, if the Corporation had been a close corporation under Subchapter XIV, the result in this
case would have been different. [S]tatutory close corporations have not found particular favor with practitioners. Practitioners
have for the most part viewed the complex statutory provisions underlying the purportedly simplified operational procedures
for close corporations as legal quicksand of uncertain depth and have adopted the view that the objectives sought by the
subchapter are achievable for their clients with considerably less uncertainty by cloaking a conventionally created corporation
with the panoply of charter provisions, transfer restrictions, by-laws, stockholders agreements, buy-sell arrangements,
irrevocable proxies, voting trusts or other contractual mechanisms which were and remain the traditional method for
accomplishing the goals sought by the close corporation provisions. David A. Drexler, Lewis S. Black, Jr., and A. Gilchrist
Sparks, III, Delaware Corporation Law and Practice 43.01 (1993).

29

By adopting a traditional approach in evaluating claims by shareholders in close


corporations, the Delaware court avoids the line-drawing problems posed by cases such
as Wilkes and Merola. Professor OKelley suggests that the Delaware approach may reflect
efficiency concerns, since the possibility of ex post judicial relief will create disincentives
for the parties themselves to identify via contract the mix between opportunism and
adaptability that they prefer. Charles OKelley, Filling Gaps in the Close Corporation
Contract: A Transaction Cost Analysis, 87 NW. L.REV. 216, 247 (1992). Professor OKelley
asserts, A court should create this disincentive only if it is likely that the court will be
able to determine ex post better than the parties themselves could ex ante which
governance structure is ideal.
Judge Frank Easterbrook and Professor Daniel Fischel argue for a contractual
approach to close corporation problems that falls somewhere between the fiduciary
approach followed by the Massachusetts courts and the traditional approach of Nixon v.
Blackwell. Frank H. Easterbrook & Daniel R. Fischel, THE ECONOMIC STRUCTURE OF
CORPORATE LAW 247 (1991). More specifically, Easterbrook and Fischel contend that,
having chosen the corporate form, participants in a close corporation are bound by the
terms of their corporate contract, but they go on to argue that courts should read into
that contract the bargain parties would have reached themselves if transaction costs
were zero. They conclude that the analytic approach employed in Wilkes is consistent
with that mode of contractual analysis.
Professor David Charny also uses a contractual analysis as his framework for
analyzing the duties owed to minority shareholders in close corporations. In contrast to
Easterbrook and Fischel, however, he suggests that in filling in the terms of the corporate
contract, courts should consider not only the express terms of the agreements between
the parties, but also informal discussions, past practices, and the participants reasonable
income expectations. David Charny, Hypothetical Bargains: The Normative Structure of
Contract Interpretations, 89 MICH. L. REV. 1815, 187072 (1991). More significantly, where
Easterbrook and Fischel generally conclude that shareholders would have bargained for
a weak set of fiduciary duties, Professor Charny argues that courts should presume that
the parties intended to accord considerable protection to minority shareholders interests
and imply a strong set of fiduciary duties. He points out that if that is not the parties
intent, the parties can simply opt out of these implied obligations. Approaching the issue
in this fashion, Charny adds, will allow courts to more efficiently resolve intra-corporate
disputes.
Professor Jason Johnston comes at the issue from a slightly different perspective.
He contends that Easterbrook and Fischels contractual arguments disregard the power
disparity between minority and majority shareholders. Jason S. Johnston, Opting In and
Opting Out: Bargaining for Fiduciary Duties in Cooperative Ventures, 70 WASH. U. L. Q. 291,
29598, 33337 (1992). He claims that their error is to assume that the weaker party, the
minority shareholder, typically would prefer to rely on market forces, such as a majority
shareholders interest in preserving her reputation, for protection from opportunistic
behavior. In contrast, Professor Johnston suggests that most minority shareholders would
prefer to rely on an imperfect legal system, even if it tends to interpret fiduciary duties
30

too broadly. Johnston also questions the assertion that imposing broad fiduciary duties
would be economically inefficient. He argues that if courts can enhance efficiency by
implying expansive fiduciary duties as part of the corporate contract, in many
circumstances, minority shareholders will be prepared to make larger firm-specific
investments.
Professor John Hetherington, who also favors a contract-oriented approach,
advances still another argument:
Bargaining is costly, and the parties may be expected to engage in it only
when the prospective benefits exceed the costs. In resolving disputes ex post, the
efficiency and productivity of exchange transactions would be enhanced if the
courts sought the allocation which the parties would have made ex ante had they
then considered that the gains of bargaining exceeded the costs.
John A. C. Hetherington, Defining the Scope of Controlling Shareholders Fiduciary
Responsibilities, 22 WAKE FOREST L.REV. 9, 20 (1987). Commenting that the traditional law
and economics analysis seems compulsively committed to preserving the prerogatives
of majorities and the vulnerability of at-will employees and close corporation minorities
as essential to the maintenance and enhancement of the productivity of business
enterprises, Professor Hetherington also notes:
One is struck in this area by what seems to be the obsessive concern of
policymakers, commentators, and, on occasion, judges over the perceived risk
that persons in relatively disadvantaged positionsemployees at will and small
minorities in close corporationswill behave strategically when dealing with
those who occupy dominant and controlling positions. Preserving the
vulnerability of the disadvantaged in these business relationships becomes a
policy goal. The point here is not, of course, that there is no risk of such behavior:
it is the implicit normative judgment that the allocation of rights (and wealth)
produced by past business arrangements is right and that any movement
toward reallocation is presumptively undesirable.
John A. C. Hetherington, Bargaining For Fiduciary Duties: Preserving the
Vulnerability of the Disadvantaged?, 70 WASH. U. L. Q. 341, 351 (1992).
Corporate law is not the only legal construct in the relationship between majority
and minority shareholders in close corporations. Some courts have gone beyond
corporate law and the partnership analogy to recognize a tort of freeze-out when a
pattern of oppressive conduct deprives the minority shareholder of all financial benefits
from the corporation.
In Sugarman v. Sugarman, 797 F.2d 3, 6 (1st Cir.1986), grandchildren of a founder
of a family corporation claimed that Leonard Sugarman, the son of the founder and the
corporations majority shareholder, had engaged in a freeze-out. Pleading the theory of
freeze-out of minority shareholders, the grandchildren alleged that Leonard had
deprived them of desired corporate employment, drained off the firms earnings by
paying himself excessive compensation, and refused to pay dividends. The court held
that neither the payment of excessive salaries nor an offer to repurchase shares at an
inadequate price alone was oppressive, but that when such activities are tied to a course
31

of conduct that freezes out a minority interest from all financial benefits provided by the
corporation such conduct would be deemed tortious. Leonards conduct, the court held,
involved all the necessary ingredients.

3. Dissolution Remedy
Many modern statutes grant courts the power to dissolve the corporation if a
shareholder establishes that (a) the directors are deadlocked, and the deadlock cannot be
broken by shareholders and it is injuring the corporation or impairing the conduct of its
business; (b) the shareholders are deadlocked and have not been able to elect directors
for two years; (c) corporate assets are being wasted; or (d) those in control of the
corporation are acting in a manner that is illegal, oppressive or fraudulent. See MBCA
14.30(2). Over the last three decades, courts have used these statutes to craft broad
protections for minority shareholders who complain of oppression by majority
shareholders.
The Official Comment to MBCA 14.30 advises courts to be cautious when
considering claims of oppression so as to limit such cases to genuine abuse rather than
instances of acceptable tactics in a power struggle for control of a corporation. In
addition, MBCA 14.34 authorizes any close corporation or any shareholder of a close
corporation to purchase all shares owned by the petitioning shareholder at the fair value
of the shares within 90 days after a petition is filed under 14.30(2) or, if authorized by
the court, at some later date, which can be a date after the court has found that the
petitioning shareholder was being oppressed.
These statutes raise three important interpretive questions. First, when is majority
conduct oppressive? Second, when a court finds oppression, what remedy is
appropriatedissolution or buy-out? Third, where a corporation or shareholder elects to
exercise buy-out rights under MBCA 14.34, how is the fair value of the complaining
shareholders stock to be determined?
Corporate statutes usually provide that a corporation can be dissolved with the
approval of the board of directors and the shareholders. In the case of both voluntary and
court-ordered dissolutions, corporate existence is terminated in an orderly fashion: the
corporation sells off its assets, pays off its creditors, and distributes whatever remains to
its shareholders. But a dissident shareholder who brings suit seeking dissolution often
will be less interested in terminating the corporations legal existence than in using the
threat of dissolution as leverage to bargain for a better price for her stock.
Whether a threat of dissolution is effective may depend on the nature of the
corporations business. If a business derives its value almost entirely from the
corporations tangible assets, shareholders who wish to continue to operate the business
probably will have to pay fair market value for those assets, since other prospective
purchasers could use them to equally good effect. But if a business derives most of its
value from its economic good will supplied by the presence of the majority, dissolution
may disserve the minoritys interests. In such a situation, the majority may be able to
32

purchase the corporations tangible assets for their fair market value and to capture the
associated good will at no additional cost and a mandatory buyout of her shares at their
fair market value will better serve the minoritys interests. That is so because, in valuing
the minoritys shares, most courts take account of the value of the corporations economic
good will.
At first glance, dissolution or a mandatory buyout may appear a sensible solution
to oppression. But on closer examination, the problem is more complex. First, how will
the remedy affect other corporate constituents, such as employees or creditors? Would a
remedy that forces the sale of some business assets affect the corporations viability?
Second, will dissolution (or even a buyout) enable one shareholder group to acquire the
business at a price unfair to others? Third, is the petitioning shareholder merely seeking
to liquidate an investment or is there another, darker agenda?

Matter of Kemp & Beatley, Inc.


473 N.E.2d 1173 (N.Y. 1984)
COOKE, CHIEF JUDGE:
When the majority shareholders of a close corporation award de facto dividends to
all shareholders except a class of minority shareholders, such a policy may constitute
oppressive actions and serve as a basis for an order made pursuant to section 1104a
of the Business Corporation Law dissolving the corporation. In the instant matter, there
is sufficient evidence to support the lower courts conclusion that the majority
shareholders had altered a long-standing policy to distribute corporate earnings on the
basis of stock ownership, as against petitioners only. Moreover, the courts did not abuse
their discretion by concluding that dissolution was the only means by which petitioners
could gain a fair return on their investment.
I
The business concern of Kemp & Beatley, incorporated under the laws of New
York, designs and manufactures table linens and sundry tabletop items. The companys
stock consists of 1,500 outstanding shares held by eight shareholders. Petitioner Dissin
had been employed by the company for 42 years when, in June 1979, he resigned. Prior
to resignation, Dissin served as vice-president and a director of Kemp & Beatley. Over
the course of his employment, Dissin had acquired stock in the company and currently
owns 200 shares.
Petitioner Gardstein, like Dissin, had been a long-time employee of the company.
Hired in 1944, Gardstein was for the next 35 years involved in various aspects of the
business including material procurement, product design, and plant management. His
employment was terminated by the company in December 1980. He currently owns 105
shares of Kemp & Beatley stock.

33

Apparent unhappiness surrounded petitioners leaving the employ of the


company. Of particular concern was that they no longer received any distribution of the
companys earnings. Petitioners considered themselves to be frozen out of the
company; whereas it had been their experience when with the company to receive a
distribution of the companys earnings according to their stockholdings, in the form of
either dividends or extra compensation, that distribution was no longer forthcoming.
Gardstein and Dissin, together holding 20.33% of the companys outstanding
stock, commenced the instant proceeding in June 1981, seeking dissolution of Kemp &
Beatley pursuant to section 1104a of the Business Corporation Law. Their petition
alleged fraudulent and oppressive conduct by the companys board of directors such
as to render petitioners stock a virtually worthless asset. Supreme Court referred the
matter for a hearing, which was held in March 1982.
Upon considering the testimony of petitioners and the principals of Kemp &
Beatley, the referee concluded that the corporate management has by its policies
effectively rendered petitioners shares worthless, and the only way petitioners can
expect any return is by dissolution. Petitioners were found to have invested capital in
the company expecting, among other things, to receive dividends or bonuses based
upon their stock holdings. Also found was the companys established buyout policy
by which it would purchase the stock of employee shareholders upon their leaving its
employ.
The involuntary-dissolution statute (Business Corporation Law, 1104a) permits
dissolution when a corporations controlling faction is found guilty of oppressive
action toward the complaining shareholders. The referee considered oppression to arise
when those in control of the corporation have acted in such a manner as to defeat
those expectations of the minority stockholders which formed the basis of their
participation in the venture. The expectations of petitioners that they would not be
arbitrarily excluded from gaining a return on their investment and that their stock would
be purchased by the corporation upon termination of employment, were deemed
defeated by prevailing corporate policies. Dissolution was recommended in the referees
report, subject to giving respondent corporation an opportunity to purchase petitioners
stock.
Supreme Court confirmed the referees report. It, too, concluded that due to the
corporations new dividend policy petitioners had been prevented from receiving any
return on their investments. Liquidation of the corporate assets was found the only means
by which petitioners would receive a fair return. The court considered judicial dissolution
of a corporation to be a serious and severe remedy. Consequently, the order of
dissolution was conditioned upon the corporations being permitted to purchase
petitioners stock. The Appellate Division affirmed, without opinion.
At issue in this appeal is the scope of section 1104a of the Business Corporation
Law. Specifically, this court must determine whether the provision for involuntary
dissolution when the directors or those in control of the corporation have been guilty of
oppressive actions toward the complaining shareholders was properly applied in the
circumstances of this case. We hold that it was, and therefore affirm.
34

II
Judicially ordered dissolution of a corporation at the behest of minority interests
is a remedy of relatively recent vintage in New York.
Section 1104a (subd. [a], par. [1]) describes three types of proscribed activity:
illegal, fraudulent, and oppressive conduct. The first two terms are familiar words
that are commonly understood at law. The last, however, does not enjoy the same
certainty gained through long usage. As no definition is provided by the statute, it falls
upon the courts to provide guidance.
The statutory concept of oppressive actions can, perhaps, best be understood by
examining the characteristics of close corporations and the Legislatures general purpose
in creating this involuntary-dissolution statute. It is widely understood that, in addition
to supplying capital to a contemplated or ongoing enterprise and expecting a fair and
equal return, parties comprising the ownership of a close corporation may expect to be
actively involved in its management and operation. The small ownership cluster seeks to
contribute their capital, skills, experience and labor toward the corporate.
As a leading commentator in the field has observed: Unlike the typical
shareholder in the publicly held corporation, who may be simply an investor or a
speculator and cares nothing for the responsibilities of management, the shareholder in
a close corporation is a co-owner of the business and wants the privileges and powers
that go with ownership. His participation in that particular corporation is often his
principal or sole source of income. As a matter of fact, providing employment for himself
may have been the principal reason why he participated in organizing the corporation.
He may or may not anticipate an ultimate profit from the sale of his interest, but he
normally draws very little from the corporation as dividends. In his capacity as an officer
or employee of the corporation, he looks to his salary for the principal return on his
capital investment, because earnings of a close corporation, as is well known, are
distributed in major part in salaries, bonuses and retirement benefits. (ONeal, CLOSE
CORPORATIONS [2d ed.], 1.07, at pp. 2122)
Shareholders enjoy flexibility in memorializing these expectations through
agreements setting forth each partys rights and obligations in corporate governance. In
the absence of such an agreement, however, ultimate decision-making power respecting
corporate policy will be reposed in the holders of a majority interest in the corporation
(see, e.g., Business Corporation Law, 614, 708). A wielding of this power by any group
controlling a corporation may serve to destroy a stockholders vital interests and
expectations.
As the stock of closely held corporations generally is not readily salable, a minority
shareholder at odds with management policies may be without either a voice in
protecting his or her interests or any reasonable means of withdrawing his or her
investment. This predicament may fairly be considered the legislative concern
underlying the provision at issue in this case; inclusion of the criteria that the
corporations stock not be traded on securities markets and that the complaining
shareholder be subject to oppressive actions supports this conclusion.

35

Defining oppressive conduct as distinct from illegality in the present context has
been considered in other forums. The question has been resolved by considering
oppressive actions to refer to conduct that substantially defeats the reasonable
expectations held by minority shareholders in committing their capital to the particular
enterprise (see, e.g., Exadaktilos v. Cinnaminson Realty Co., 167 N.J.Super. 141, 153156, 400
A.2d 554, affd. 173 N.J.Super. 559, 414 A.2d 994). This concept is consistent with the
apparent purpose underlying the provision under review. A shareholder who reasonably
expected that ownership in the corporation would entitle him or her to a job, a share of
corporate earnings, a place in corporate management, or some other form of security,
would be oppressed in a very real sense when others in the corporation seek to defeat
those expectations and there exists no effective means of salvaging the investment.
Given the nature of close corporations and the remedial purpose of the statute, this
court holds that utilizing a complaining shareholders reasonable expectations as a
means of identifying and measuring conduct alleged to be oppressive is appropriate. A
court considering a petition alleging oppressive conduct must investigate what the
majority shareholders knew, or should have known, to be the petitioners expectations in
entering the particular enterprise. Majority conduct should not be deemed oppressive
simply because the petitioners subjective hopes and desires in joining the venture are
not fulfilled. Disappointment alone should not necessarily be equated with oppression.
Rather, oppression should be deemed to arise only when the majority conduct
substantially defeats expectations that, objectively viewed, were both reasonable under
the circumstances and were central to the petitioners decision to join the venture. It
would be inappropriate, however, for us in this case to delineate the contours of the
courts consideration in determining whether directors have been guilty of oppressive
conduct. As in other areas of the law, much will depend on the circumstances in the
individual case.
The appropriateness of an order of dissolution is in every case vested in the sound
discretion of the court considering the application (see Business Corporation Law, 1111,
subd. [a]). Under the terms of this statute, courts are instructed to consider both whether
liquidation of the corporation is the only feasible means to protect the complaining
shareholders expectation of a fair return on his or her investment and whether
dissolution is reasonably necessary to protect the rights or interests of any substantial
number of shareholders not limited to those complaining (Business Corporation Law,
1104a, subd. [b], pars. [1], [2]). Implicit in this direction is that once oppressive conduct
is found, consideration must be given to the totality of circumstances surrounding the
current state of corporate affairs and relations to determine whether some remedy short
of or other than dissolution constitutes a feasible means of satisfying both the petitioners
expectations and the rights and interests of any other substantial group of shareholders
(see, also, Business Corporation Law, 1111, subd. [b], par. [1]).
By invoking the statute, a petitioner has manifested his or her belief that
dissolution may be the only appropriate remedy. Assuming the petitioner has set forth a
prima facie case of oppressive conduct, it should be incumbent upon the parties seeking
to forestall dissolution to demonstrate to the court the existence of an adequate,
36

alternative remedy. A court has broad latitude in fashioning alternative relief, but when
fulfillment of the oppressed petitioners expectations by these means is doubtful, such as
when there has been a complete deterioration of relations between the parties, a court
should not hesitate to order dissolution. Every order of dissolution, however, must be
conditioned upon permitting any shareholder of the corporation to elect to purchase the
complaining shareholders stock at fair value (see Business Corporation Law, 1118).
One further observation is in order. The purpose of this involuntary dissolution
statute is to provide protection to the minority shareholder whose reasonable
expectations in undertaking the venture have been frustrated and who has no adequate
means of recovering his or her investment. It would be contrary to this remedial purpose
to permit its use by minority shareholders as merely a coercive tool. Therefore, the
minority shareholder whose own acts, made in bad faith and undertaken with a view
toward forcing an involuntary dissolution, give rise to the complained-of oppression
should be given no quarter in the statutory protection.
III
There was sufficient evidence presented at the hearing to support the conclusion
that Kemp & Beatley had a long-standing policy of awarding de facto dividends based on
stock ownership in the form of extra compensation bonuses. Petitioners, both of whom
had extensive experience in the management of the company, testified to this effect.
Moreover, both related that receipt of this compensation, whether as true dividends or
disguised as extra compensation, was a known incident to ownership of the companys
stock understood by all of the companys principals. Finally, there was uncontroverted
proof that this policy was changed either shortly before or shortly after petitioners
employment ended. Extra compensation was still awarded by the company. The only
difference was that stock ownership was no longer a basis for the payments; it was
asserted that the basis became services rendered to the corporation. It was not
unreasonable for the fact finder to have determined that this change in policy amounted
to nothing less than an attempt to exclude petitioners from gaining any return on their
investment through the mere recharacterization of distributions of corporate income.
Under the circumstances of this case, there was no error in determining that this conduct
constituted oppressive action within the meaning of section 1104a of the Business
Corporation Law.
Nor may it be said that Supreme Court abused its discretion in ordering Kemp &
Beatleys dissolution, subject to an opportunity for a buy-out of petitioners shares. After
the referee had found that the controlling faction of the company was, in effect, attempting
to squeeze-out petitioners by offering them no return on their investment and increasing
other executive compensation, respondents, in opposing the reports confirmation,
attempted only to controvert the factual basis of the report. They suggested no feasible,
alternative remedy to the forced dissolution. In light of an apparent deterioration in
relations between petitioners and the governing shareholders of Kemp & Beatley, it was
not unreasonable for the court to have determined that a forced buy-out of petitioners
shares or liquidation of the corporations assets was the only means by which petitioners
could be guaranteed a fair return on their investments.
37

Accordingly, the order of the Appellate Division should be modified, with costs to
petitioners-respondents, by affirming the substantive determination of that court but
extending the time for exercising the option to purchase petitioners-respondents shares
to 30 days following this courts determination.

Bonavita v. Corbo
692 A.2d 119 (N.J. Super. 1996)
LESEMANN, JUDGE:
A.
FACTS
1.
Evolution of the corporation
Corbo Jewelers, Inc., (Corbo or the corporation) was organized in 1946 by Michael
and Dominic Corbo, and Gerald Bonavita. [Gerald Bonavitas wife, Julia, is a sister of
Dominic and Michael Corbo.] It began with one store in Bloomfield, New Jersey,
gradually expanded to twelve stores, but later retrenched to its present seven locations.
Over the years, as the three incorporators aged, the stockholdings evolved as well.
From 1984 on, Alan Corbo [who is Michael Corbos son] and Gerald Bonavita each owned
50% of the outstanding stock of the corporation.
Over the years, Alans four children also began working in the business. Stephen
began in 1978 and has become the corporations chief administrative officer, second in
command only to his father. Alan, Jr., began in or around 1979 and functions as diamond
buyer. Michael has been with the corporation since 1976. He handles jewelry repairs and
special orders. Alans daughter, Cathy Giamboi, works part time in the Corbo store in
Yonkers, New York, and his wife, Stephanie, also works part time. Alan earns $57,000 per
year; his three sons each earn $52,000; Cathy earns between $20,000 and $30,000 and
Stephanies earnings are apparently in the same range as Cathys.
Until his death in late 1994, Gerald Bonavita received the same salary as Alan, even
after he virtually stopped working in 1991. Upon Geralds death, however, Alan advised
his widow that the Internal Revenue Service would not approve salary deductions for
any further such payments and thus they could not be continued. They did, in fact, cease
very soon after Geralds death.
Although Gerald Bonavita and Alan Corbo received the same salary while Bonavita
was alive, they played distinctly different corporate roles. Alan filled the role of president
and chief executive officer, in fact as well as title. With his son, Stephen, he ran the
corporation.
Bonavita played a much more retiring role. Essentially, he ran the Bloomfield store,
which was characterized at trial as a Mom and Pop operation. He took little, if any, role
in overall corporate management, and his wife was more active and had greater
knowledge about such matters than he did.
In the mid 1980s, as Gerald Bonavita aged and his health deteriorated, he told Alan
Corbo that he wanted to retire and wanted to have the corporation (or Alan) purchase his
38

stock. Some discussions ensued, but the parties did not reach agreement on a buyout.
Gradually, Bonavita reduced the time he was spending on corporate business, until he
completely retired in March 1991. Julia continued working for a short time thereafter,
until she too ceased all work in January 1992.
2. Corporate meetings and elections
As is the case with many closed corporations, so long as the shareholders were in
harmony, Corbo conducted its corporate affairs informally and on a family-like basis.
3.
Plaintiffs complaint; the appointment of a provisional director; and the demand for
payment of a dividend
Plaintiffs complaint was filed in December 1991. It alleges a deadlock within the
meaning of N.J.S.A. 14A:127 and also alleges stockholder oppression within the
meaning of that statute. Plaintiff sought interim relief, and the court, pursuant to
Subsection (1) of N.J.S.A. 14A:127 appointed Thomas Herten, Esq., as a provisional
director to function while the litigation proceeded.
In early 1994, Bonavita formally requested the corporation to pay a dividend of
approximately $650,000 to each of the two shareholdersa total of $1,300,000. That sum
represented a portion of the corporations retained earnings on which income tax had
already been paida point discussed further below. The request was denied, with Alan
Corbo opposed to the request and the provisional director declining to join Bonavita in
what he regarded as a matter of business judgment. An attempt to have the court
overrule that decision while the suit was pending was unsuccessful and thus no dividend
was paid. Bonavita thereafter modified his request to propose a smaller dividend, but
that, too, was denied, and Alan Corbo has remained, ever since, adamantly opposed to
the payment of any substantial dividend.
B.
THE CLAIM OF DEADLOCK
Although plaintiff claims there is a corporate deadlock, that charge is not sharply
drawn, and it is not clear just what constitutes the alleged deadlock of which plaintiff
complains.
This is not a case where a corporation is unable to act. It can act. And it did act. It
acted by denying plaintiffs demands for a dividend or a buy-out of her stock. And it is
the result of that actionnot an inability to actwhich is the basis for plaintiffs claim
that she has been left in a hopeless, no-win situation. Whether those actions, leading to
those results, constitute shareholder oppression is the significant issue presented.
C.
PLAINTIFFS CLAIM OF OPPRESSION
The essence of plaintiffs claim is that the corporation, as operated by defendant Alan
Corbo, provides substantial benefits for Alan Corbo and his family but no benefits for
Bonavita. That is certainly an accurate statement.
As noted, the six Corbo family members on the corporate payroll realize
approximately $400,000 per year in salary and other benefits. And while there is no claim
that the salaries are excessive, neither was there a showing that if the inside
employment were terminated those family members could earn as much elsewhere. In
addition, of course, a job in the family business probably provides considerably more
security than one might find in other employment.
39

It is also clear that Alan Corbo recognized that such continued employment was
indeed a substantial benefit. When Gerald Bonavita presented what he claimed was a
chance to sell the entire business for a handsome price, Alan Corbo responded by
insisting that an essential condition of any such sale must be the ability of his three sons
and himself to continue their employment with the new corporate owner.
Such employment is, of course, a frequent and perfectly proper benefit of
stockholders in a closed corporation. The difficulty here is that the benefit flows in one
direction only: to the Corbos, and not to Bonavita, and there is no compensating,
alternative benefit for the Bonavita interests.
Mrs. Bonavita testified that she and her husband had no children who could move
into the jewelry stores operation. She also said, as did her husband in his de bene esse
deposition before trial, that Mr. Bonavita had hoped to receive some benefits from the
corporation before he died, and she has a similar hope now for herself. Otherwise, as she
put it, her husbands interest, which she now owns, will be locked forever within Corbo
Jewelers, Inc., and will be of absolutely no benefit to her, as it was of no benefit to her
husband.
Absent employment, and absent any thought of long-term growth (inapplicable to
Julia Bonavita as it was to Gerald Bonavita because of age), the normal corporate benefit
which one in the position of Mr. or Mrs. Bonavita might expect would be the payment of
dividends. This corporation, however, pays no dividends.
Plaintiffs unsuccessful attempt to have the corporation pay a dividend is noted
above. Defendants have made clear that no dividend of any significant size will be
approved. Plaintiff argues that Alan Corbos no dividend policy is particularly harsh
in view of the extraordinary financial condition of the corporation. That argument has
considerable merit.
As of June 30, 1993, the corporate balance sheet showed retained earnings of more
than $5,000,000 and, after adjustment for treasury stock held as a liability, showed total
stockholders equity of approximately $4,600,000. Within that $4,600,000 was the socalled AAA account, which totaled $1,390,000, and represented funds on which income
tax had already been paid.*
In addition, on June 30, 1993, the corporation had cash, or liquid assets easily
convertible into cash, of approximately $1,100,000 and current liabilities of only $12,000.7
It also owned a building in Rutherford with an appraised value of $525,000, free of any
mortgage andplaintiff arguesavailable as a source of additional funds through
mortgage financing.
Defendants stated reason for the refusal to pay dividends is the corporations need
for cash. Alan Corbo testified that the business is seasonal and that the corporations
continued profitability requires it to have substantial cash available to buy quickly when
*
Corbo was a Subchapter S corporation, whose net profits were taxable directly to its shareholders. Each year, Corbo
disbursed to its two stockholders, as dividends, enough money to pay the taxes on Corbos profits for which they were liable.
Corbo retained the remainder of its profits and designated those after-tax profits AAA account. [Eds.]
7 These numbers do not include the excess of accounts receivable ($640,000) over accounts payable ($390,000). Nor do
they include inventory.

40

bargains become available. The ability to do that, without the need to borrow money
and pay interest, he maintained, is one reason for the corporations success over the years.
Alan Corbo also pointed to the anticipated need for substantial renovation expenses
for two of the corporations stores which were approaching the end of leaseholds. In each
case, he said, the landlord would require such expenditures as a condition to lease
renewal.
While the facts just described strongly indicate that the corporation can well afford
to pay dividends, a contrary decision could hardly be called irrational. Indeed, from Alan
Corbos point of view, the no dividend policy undoubtedly makes good sense. Since
the primary benefit that he receives from the corporation is continued employment for
himself and his family, the maintenance of a $5,000,000 earned surplus, large cash
balances, and the non-payment of dividends is certainly in his best interest.
If the Corbos and Bonavita were in essentially the same position, and each was
similarly affected by the decision against paying dividends, that policy could hardly be
characterized as anything other than a permissible exercise of business judgment. It
would, presumably, be unassailable under the principle that a court will not normally
overturn the exercise of such judgment.
But that, of course, is not this case. The problem here is that the operation of the
corporation benefits only one of its shareholdersAlan Corbo. It provides no benefit of
any kind to Julia Bonavita. What Julia Bonavita has, and what she will continue to have
so long as Alan Corbo is able to make the kinds of decisions he has been making, is a
block of stock which has absolutely no value. Alan Corbo has made and will continue to
make decisions which are in his best interests (and those of his family) and which ignore
the wishes, needs, and best interests of his co-shareholder.
Given the effect of those actions on plaintiff, and regardless of whether defendants
actions might otherwise be termed wrongful or illegal, there is no question that
defendants conduct has destroyed any reasonable expectation that plaintiff may have
enjoyed respecting her stock interests. As such, it is clear from the decision of our
Supreme Court in Brenner v. Berkowitz, 134 N.J. 488, 634 A.2d 1019 (1993), from other New
Jersey case law, from comments and analyses by leading text writers, and from decisions
in other states, that defendants actions do indeed constitute oppression within the
meaning of N.J.S.A. 14A:127.
D.
THE APPROPRIATE REMEDY
N.J.S.A. 14A:127 sets out four remedies which a court may order to remedy
oppression. A court
may appoint a custodian, appoint a provisional director, order a sale of the
corporations stock as provided below, or enter a judgment dissolving the
corporation.
The statutory power to order a stock sale, as described further in Subsection (8), is a
power to order an unwilling party to sell stock. It does not authorize a mandatory purchase
by someone otherwise unwilling to buy.
In Brenner v. Berkowitz, supra, however, the Court held that the statutory list of
remedies was non-exclusive and that the statute was not intended to supersede the
41

inherent, common law power of the Chancery Division to achieve equity. One of those
equitable remedies, it held, is the power to order an involuntary purchase of stock held
by one of the corporations shareholders. That power, however, should be exercised
sparingly.
Dissolution, of course, is a last resort remedy and something which neither
defendant nor plaintiff wants here. What plaintiff does want is an order directing the
corporation, or Alan Corbo, to purchase the Bonavita stock. That remedy, as noted, is
available, but should be imposed only if the court is satisfied that it represents the only
practical alternative to dissolution and that some lesser remedy will not suffice.
Neither side in this case has focused on any such alternative remedy. The reason for
that seems clear: there is no reasonable, practical lesser remedy which will solve the
problem inherent in this relationship and provide plaintiff with the long-range relief to
which she is entitled. In short, no other remedy will work.
The problems that brought the parties to this suit are inherent in their relationship.
That relationship is not something which this court can alter by an order attempting to
modify or control their actions while they remain married to each other. The conflict
will remain, and its symptoms will reappear in what will inevitably be a continuing war
between the two.
Thus, the corporation could certainly be ordered to pay the dividend which plaintiff
requestsor at least some smaller dividend, as per the list of thirteen possible equitable
remedies set out in Brenner, and particularly Item (10), which refers to the courts
requiring declaration of a dividend.
But if that were done, what about next year? Or the year after? Alan Corbo will
continue to see such payments as antithetical to the best interests of the corporation. And
as he defines the best interests of the corporationconsistent with his best interests and
those of his familyhis viewpoint would hardly be irrational. But it will continue to be
inconsistent with the reasonable expectations of the Bonavita interests.
And, of course, the differences between the two sides would not manifest themselves
only on a single annual question of payment of a dividend. Rather, the continuum of
business decisions that arise throughout the yearboth large issues and seemingly minor
oneswould all be affected by the different approaches of the two sides. Everything from
merchandising decisions to capital improvements, opening or closing of stores, and
countless subsidiary issues would necessarily be affected by the different philosophies
(the different expectations) of the two sides.
In sum, there is no rational basis on which this corporation can continue to exist and
operate with half its shares owned by the Corbo interests and half by the Bonavita
interests. There must be a divorce. One method of accomplishing that, raised and
explored at trial but shown to be unworkable, would be a division of the corporations
stores between the two shareholders.
That brings us back, then, to plaintiffs request for a compulsory buy out of her stock.
And since such a mandatory purchase by the corporation or Alan Corbo represents a less
drastic measure than dissolution of the corporation, it is clear that the only feasible,

42

rational remedy here is an order that the corporation (or perhaps Alan Corbo) be required
to purchase the Bonavita stock interests.
Based on an analysis and evaluation of the extensive evidence submitted at trial as to
the value of the Bonavita stock interests, the court has concluded that the price at which
that sale should take place is $1,900,000.
What remains to be resolved, however, are the terms and conditions under which
a sale at that price should take place. To investigate and consider this issue, and any
others that must be resolved in order to effect the purchase of the Bonavita stock, this
court will appoint a special fiscal agent. The agent will consult with the attorneys for the
parties; make such independent investigation as may be deemed necessary or
appropriate; and may consult with banks, other possible lending sources, accountants,
and any one else deemed helpful. The agent will then submit a proposal as to the terms
and conditions on which the sale will take place. The parties will have an opportunity to
be heard concerning the agents report, and thereafter, the court will enter a final order
fixing the terms and conditions of sale.

4. What Is Oppression?
As the cases illustrate, oppression is often in the eye of the beholder. Should the
oppression analysis take into consideration the prerogatives of the majority to manage
the business as it sees fit? Should oppression depend on the wrongful conduct of the
majority or the frustrated expectations of the minority, whether or not the majority was
wrongful? Should reasonable expectations be fixed at the beginning of the corporate
relationship? Or do expectations evolve over time?
The increasing use of the reasonable expectations standard reflects a move away
from an exclusive search for egregious conduct by those in control of the enterprise and
toward greater consideration of the effect of conduct on the complaining shareholder,
even if no egregious conduct by controllers can be shown. Robert B. Thompson,
Corporate Dissolution and Shareholders Reasonable Expectations, 66 WASH. U. L. Q. 193, 219
220 (1988). More recently, Professor Douglas Moll has observed:
A minority shareholders chance of success in an oppression action depends on
the perspective from which shareholder oppression is viewed. On the one hand,
some courts view shareholder oppression from a majority perspectivea
perspective that focuses primarily on the conduct of the majority. On the other
hand, some courts view shareholder oppression from a minority perspectivea
perspective that focuses primarily on the effect of that conduct on the minority
shareholder. Whereas a majority-perspective court finds oppression liability
when the majoritys actions are not justified by a legitimate business purpose, a
minority-perspective court generally finds oppression liability when majority
actions, whether justified or not, harm the interests of a minority shareholder. The
43

choice of perspective can make an outcome-determinative difference in a number


of cases.
Douglas K. Moll, Shareholder Oppression in Close Corporations: The Unanswered Question of
Perspective, 53 VAND. L. REV. 749 (2000).
From which perspective should shareholder oppression be viewed? To answer this
question, Moll constructs hypothetical bargains between rational close corporation
participants. He argues that a modified minority perspective best captures the likely
understandings that reasonable investors would have reached if, at the ventures
inception, they had bargained over minority protection and majority prerogatives.
Indeed, because the close corporation investment is typically comprised of more than a
mere financial stake in the corporations success, Moll asserts that reasonable close
corporation shareholders would not reach an understanding that any majority conduct
benefitting the corporation is permissible. The majority perspective is flawed due to its
assumption that close corporation shareholders are solely concerned with maximizing
the investment returns.
Judge Easterbrook and Professor Fischel, on the other hand, oppose judicial decisions
and state statutes that provide for dissolution if the majority shareholders frustrate a
minority shareholders reasonable expectations. They argue that this vague and openended standard provides disgruntled minority shareholders with an opportunity to
coerce majority shareholders by threatening in bad faith to initiate lawsuits seeking
dissolution. Frank H. Easterbrook & Daniel R. Fischel, Close Corporations and Agency Costs,
38 STAN. L. REV. 271, 288 (1986).
Muellenberg v. Bikon Corp., 143 N.J. 168, 669 A.2d 1382 (1996), illustrates this tension.
There the court affirmed a finding of oppression based on actions taken by the majority
shareholders (Muellenberg and Passerini) at a meeting the minority shareholder (Burg)
refused to attend. At the meeting, the majority voted to declare a sizeable dividend, to
retain an outside accountant to determine accrued royalties owed to Muellenberg, to
require that future bank withdrawals include Muellenbergs signature, and to require
board approval for the selection of suppliers and purchases over $1,000. The actions were
in response to ongoing disputes between Muellenberg and Burg that culminated when
Burg traveled to Italy and unilaterally engaged other suppliers for the company, which
Muellenberg regarded as direct competitors and violators of his individual patent rights.
The New Jersey Supreme Court, though acknowledging the majoritys right to
control the business, ultimately accepted the trial courts focus on the minoritys
expectations:
Ordinarily, oppression by shareholders is clearly shown when they have awarded
themselves excessive compensation, furnished inadequate dividends, or
misapplied and wasted corporate funds. This did not occur here.
The remaining measure of oppression in the small corporation is whether the fair
expectations of the parties have been met. In this case, it is reasonable to conclude
that Burgs fair expectations were that should he give up his prior employment
with a competitor company and enter this small corporation, he would enjoy an
important position in the management affairs of the corporation.
44

It is a close question whether the actions taken by Muellenberg and Passerini at


the January 20, 1993, meeting amounted to oppression, as Burg contends.
Muellenberg and Passerini claim that their declaration of the first dividend in
company history was fair and reasonable in light of the companys favorable
financial position at that time. They dispute the trial courts conclusion that the
dividend would deprive Burg of the needed cash to operate BNJ, asserting that
sufficient assets were still available to run the company. Muellenberg also
maintains that Burg could not have reasonably expected that he would have
exclusive authority and control over the business when BNJs bylaws named
Muellenberg president and chief executive officer.
We agree that it cannot be considered oppression when controlling shareholders
seek to rein in management and control the affairs of their corporation. But the
expectations of Muellenberg and Passerini that they might exercise majority
power conflicted with the expectations of Burg, and were confined by their
fiduciary duties to their co-venturer. The equities were close. Burg had devoted
the most productive years of his life to building up the company. Due in large
measure to Burgs efforts, North American sales of Bikon products rose to over
$2,000,000 per year. He could not reasonably have expected that after ten years as
general manager he would be frozen out of the business. On the other hand,
Muellenberg could not reasonably have expected that he, the founder of the
enterprise, and Passerini would be ignored in the conduct of the companys
affairs.
In other circumstances, Burg could have learned to manage the business more as
a partner than as a sole proprietor. But the events that followed the Appellate
Divisions decision have confirmed that the trial court, which could assess the
demeanor and relationship of the witnesses, had a better sense of the internal
dynamics among the shareholders and could foreshadow Burgs inevitable ouster
from Bikons picture. That ouster would not have been a fair accommodation of
the reasonable expectations of all shareholders.
669 A.2d at 13881389.
Another question of perspective that permeates the oppression cases is when
reasonable expectations should be gaugedat the time of investment or over the course
of the corporations life? Courts take different approaches.
In Muellenberg, the court appeared to give significant weight both to Burgs
expectations at the time Bikon was organized and to the expectations he developed while
managing that corporations business. In Bonavita, the court held it was unreasonable for
the Corbos to terminate payments to Mrs. Bonavita, who inherited her stock from her
husband, even though the salaries the Corbos received were rather modest and, some
would argue, the Corbos had been rather generous toward Mr. Bonavita. In a factually
similar case, another New Jersey court refused to find oppression when a majority
shareholder stopped paying dividends to minority shareholders, who had inherited their
shares from the corporations co-founder. Kelley v. Axelsson, 296 N.J.Super. 426, 687 A.2d
268 (App.Div.1997). The court pointed out that the majority shareholder had managed
45

the business for many years and had acquired his majority position by buying the shares
of the other co-founder. Since the minority shareholders were never active in the
management of the business, but are the owners of stock on which dividends were paid
regularly, their only reasonable expectations are that dividends would continue to be
paid on their stock if funds are reasonably available for the payment of dividends. 687
A.2d at 270. Evidence that the corporation had stopped paying dividends when it sharply
increased the salaries of the majority shareholder and his son was not adequate to find
that the plaintiffs expectations of dividends had been frustrated.
In his review of the various interpretations of reasonable expectations in oppression
cases, Professor Moll found that the leading judicial formulation has focused on the
minority shareholders expectations at the time he invested in the business. Douglas K.
Moll, Shareholder Oppression and Reasonable Expectations: Of Change, Gifts, and Inheritances
in Close Corporation Disputes, 86 Minn. L. Rev. 717 (2002). But Moll asserts a time of
investment focus may be problematic if changed post-investment expectations are the
basis for the oppression claim. Such a focus may also fail to account for non-investing
shareholders who received their shares by inheritance or gift, and may not have had any
specific reasonable expectations at the time their shares were acquired.
Using an investment model for understanding oppression, Moll argues that
reasonable expectations should be understood as a bargain struck between majority
and minority shareholders over a specific entitlement the minority is to receive in return
for her investment in the company. Because majority and minority shareholders may
strike these investment bargains throughout their participation in a close corporation,
Moll asserts that the oppression doctrine should look for evidence of such bargains
during the entirety of the shareholders relationship, rather than merely at the time of
investment. Moreover, although non-investing stockholders may not commit money
capital to the company, their mutual understandings with the majority, if proven, should
be protected as investment bargains.

5. Non-Dissolution Remedies
As courts have come to understand that a dissolution order essentially forces one
faction to buy out the other, courts have increasingly ordered a buyout on specified terms.
The MBCA permits majority shareholders in a close corporation to avoid dissolution by
electing to buy out at fair value the shares of a shareholder who petitions for
involuntary dissolution. MBCA 14.34. As the Official Comment explains, this provision
gives the majority a call right of minoritys shares to prevent strategic abuse of the
dissolution procedure. Under this optional procedure, the shareholders who elect to
purchase must give notice to the court within 90 days of the petition and then negotiate
with the petitioning shareholder. If after 60 days the negotiations fail, the court must stay
the proceedings for involuntary dissolution and order a buyout and determine the fair
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value of the petitioners shares. If the petitioner had probable grounds for relief under
the misconduct provisions of the involuntary dissolution statute, the award may include
the petitioners litigation costs (attorney and expert fees).
In Muellenberg, the court took the extraordinary step of ordering the majority to sell
to the minority. Given that the parties would be unable to cooperate in the joint
management of the enterprise, a buyout was seen as the only solution and the minority
had a more vested interest in the business. The special facts of the case explain the reversal
of the roles. The case involved a company (BNJ) established as the marketer in the United
States of locking devices used for building machines. The company was owned equally
by Muellenberger (whose German company BTG held trademarks for the devices on
which Muellenberger individually held more than 80 patents), Passerini (who co-owned
with Muellenberger an Italian company that manufactured the devices) and Burg (a
mechanical engineer who had come from Germany orginally to work for a competitor of
BTG).
From the beginning Muellenberger was the company president, Burg the general
manager, and Passerini the treasurer. When relations among the three deteriorated,
Muellenberg and Passerini undertook to strip Burg of his day-to-day control and
eventually to vote Burg out as a director and terminate him as general manager and
employee of the company. As described before, the trial court determined that this course
of conduct amounted to oppression and held that the only fair and equitable remedy was
to have one camp buy out the other. The court concluded that Burg, the minority
Shareholder, should buy out the interests of Muellenberg and Passerini, who collectively
held a majority of the stock.
The New Jersey Supreme Court upheld the unusual remedy:
The remaining issue was whether Burg or Muellenberg and Passerini should
survive with BNJ. In 1988, the Legislature amended N.J.S.A. 14A:127(8) to permit
minority shareholders to petition a court to order a buy-out of the majority. As
amended, section 14A:127(8) provides that if there is a triggering event, the
minority may seek a court order for the sale of the stock of any other
shareholder. In most situations, oppressed minority shareholders will lack the
resources to buyout the interests of controlling shareholders. As a result, claims
of oppression are typically remedied by arranging for the corporation or the
majority shareholders to buyout the interests of the minority shareholder. In this
case, the record contained the following evidence in support of Burg: Burg was
willing and able to purchase the shares of Muellenberg and Passerini; Burg, who
owns the land on which BNJs offices are located, was most active in operating
the company since its inception; Burg is the only shareholder who works full-time
for BNJ and the company has been his only source of income for over ten years;
Burg was primarily responsible for developing the companys contacts in the
United States and Canada and is best situated to maintain the existing operation;
and finally, it was Burg who sought to preserve the corporation at a time when
Muellenberg and Passerini attempted to dissolve it.

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On the other hand, without Muellenberg there would have been no business to
divide since he had furnished all the start-up capital and was the inventor of the
special design features that propelled the companys sales. Much of BNJs good
will may have derived from the use of the Bikon name. It is, however, too close a
call to say that the Chancery Court erred in finding a slight edge in favor of Burg
as the surviving shareholder.
Thus, while a minority buy-out of the majority is an uncommon remedy, it was
the appropriate one here. The trial court acted within its discretion in ordering
Muellenberg and Passerini to sell their shares in BNJ to Burg.
Any doubt as to which shareholder should be permitted to invoke the buy-out
remedy has been largely dissipated by circumstances. Without resolving the
factual disputes set forth in the motions to supplement the record, it appears that
since we stayed the Appellate Divisions decision, Muellenberg has demonstrated
an ability to market his products in the United States without Burg. Muellenberg,
on behalf of his solely owned company BTG, made arrangements with a company
called North American, Inc. for it to market products under the Bikon name
that may compete with BLoc. North American began soliciting BLocs
customers, advising them that it had been granted the exclusive license to
manufacture and distribute Bikon locking devices in the United States, Canada
and Mexico. In addition, its sales catalogue is similar to the catalogue BNJ used
previously. Oral argument convinces us that there is nothing to stand in the way
of Muellenberg and Passerini continuing in the American market without real
detriment to their reasonable expectations in forming BNJ. The trial courts
solution is thus fair and equitable to all parties as required by N.J.S.A. 14A:12
7(8).
As it stands, BNJ (now BLoc) no longer can use the Bikon trade name. That
license was terminated by BTG prior to the commencement of this litigation. The
good will and trade name of Bikon inures to Muellenbergs new venture, which
may engage in the sale of Bikon fasteners in the domestic U.S. market. Now that
the patent has expired on the only Bikon product to generate significant sales in
this country, BLoc and North American are able to compete freely with each
other. Realistically, all that plaintiffs Muellenberg and Passerini might reasonably
require to advance their undertaking would be the customer lists generated
during the period of their joint enterprise with Burg. If those lists are not available
to them now, a customer list as of the date of the buy-out should be furnished by
Burg.
669 A.2d at 13891390.
One question that arises under a buyout statute or when a court finds oppression and
orders a buyout is what weight should be given to a shareholder agreement on transfers
of stock. In Matter of Pace Photographers, Ltd., 71 N.Y.2d 737, 530 N.Y.S.2d 67, 525 N.E.2d
713 (1988), a shareholder agreement fixed the price at which stock could be purchased if
any shareholder decided to sell, hypothecate, transfer, encumber or otherwise dispose
of his stock. The court held that the agreement did not control the price at which the
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stock should be transferred when the corporation elected to buy a petitioning


shareholders stock pursuant to New Yorks buyout statutes (N.Y.B.C.L. 1118), because
the agreement did not include a dissolution proceeding under N.Y.B.C.L. 1104a in its
list of voluntary transactions that would trigger the pricing provision.
Courts in other states have relied on their inherent equity authority to devise
remedies other than dissolution where they have found minority shareholders have been
oppressed or a deadlock exists. In Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507
P.2d 387 (1973), the court listed ten possible forms of relief that it could order short of
outright dissolution:
(a) The entry of an order requiring dissolution of the corporation at a specified
future date, to become effective only in the event that the stockholders fail to
resolve their differences prior to that date.
(b) The appointment of a receiver, not for the purposes of dissolution, but to
continue the operation of the corporation for the benefit of all of the stockholders,
both majority and minority, until differences are resolved or oppressive
conduct ceases.
(c) The appointment of a special fiscal agent to report to the court relating to the
continued operation of the corporation, as a protection to its minority
stockholders, and the retention of jurisdiction of the case by the court for that
purpose.
(d) The retention of jurisdiction of the case by the court for the protection of the
minority stockholders without appointment of a receiver or special fiscal agent.
(e) The ordering of an accounting by the majority in control of the corporation for
funds alleged to have been misappropriated.
(f) The issuance of an injunction to prohibit continuing acts of oppressive
conduct and which may include the reduction of salaries or bonus payments
found to be unjustified or excessive.
(g) The ordering of affirmative relief by the required declaration of a dividend or
a reduction and distribution of capital.
(h) The ordering of affirmative relief by the entry of an order requiring the
corporation or a majority of its stockholders to purchase the stock of the minority
stockholders at a price to be determined according to a specified formula or at a
price determined by the court to be a fair and reasonable price.
(i) The ordering of affirmative relief by the entry of an order permitting minority
stockholders to purchase additional stock under conditions specified by the court.
(j) An award of damages to minority stockholders as compensation for any injury
suffered by them as the result of oppressive conduct by the majority in control
of the corporation.
507 P.2d at 39596.

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6. Valuation of Minority Shares


A recurring issue in oppression cases is the value to assign to a complaining
shareholders stock in a court-ordered buyout or when a corporation or another
shareholder exercises buy-out rights under MBCA 14.34. A strict market-based
approach (based on what a willing outside buyer would pay in a fully-disclosed armslength transaction) would factor in the reality that minority shares are not proportionally
as valuable as majority shares, since they lack meaningful control rights. Although
minority shares have a right to the proportional payment of any dividends or other
distributions, the discretion to make such payments lies with the majority. Moreover,
minority shares in a close corporation, unlike minority shares in a publicly traded
corporation, lack a ready market, also diminishing their value.
In ordering a buyout for oppression, should a court discount minority shares because
such shares lack control and marketability? The question is significant since valuation
experts often opine that the lack of control can diminish the value of minority shares by
3040% compared to majority shares, and the lack of marketability by another 3040%.
In all, minority shares may have a market value less than half of what a full-control, fully
marketable ownership interest in the same business would command.
Two New Jersey cases address the implications of imposing minority discounts. In
Balsamides v. Protameen Chemicals, Inc., 160 N.J. 352, 734 A.2d 721 (1999), a feud between
two 50% shareholders (Perles and Balsamides) led the trial court to find that Perles had
engaged in oppression by taking actions that, though not discriminatory, had harmed the
corporation and had harmed Balsamides as an employee. (N.J.S.A. 14A:127 defines
oppression to include mismanagement of the corporation and acting oppressively or
unfairly toward one or more minority shareholders in their capacities as shareholders,
directors, officers or employees.) The trial court then ordered Perles to sell his 50%
interest in the corporation to Balsamides at a price that reflected a 35% marketability
discount from the value of the corporation as a going business. On appeal, the New
Jersey Supreme Court affirmed and noted that a marketability discount differs from a
minority control discount. A minority discount adjusts for lack of control over the
business entity, while a marketability discount adjusts for a lack of liquidity in ones
interest in an entity. Id. at 373, 734 A.2d at 733.
In a companion case decided the same day, Lawson Mardon Wheaton, Inc. v. Smith, 160
N.J. 383, 734 A.2d 738 (1999), the New Jersey Supreme Court held that it would be unfair
and inequitable to apply a marketability discount in an appraisal proceeding. The court
explained in Balsamides that to allow the majority shareholders in Lawson Mardon
Wheaton to buyout the minority dissenters at a marketability discount would penalize the
minority for exercising their statutory rights. It also would tempt the majority to engage
in activities designed to create dissent. Balsamides, 160 N.J. at 382, 734 A.2d at 738.
The court explained that the equities in Balsamides warranted a different conclusion,
even though both the appraisal statute and the oppression statute require the court to
determine fair value:
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In cases where the oppressing shareholder instigates the problems, as in this case,
fairness dictates that the oppressing shareholder should not benefit at the expense
of the oppressed. Requiring Balsamides to pay an undiscounted price for Perles
stock penalizes Balsamides and rewards Perle. The statute does not allow the
oppressor to harm his partner and the company and be rewarded with the right
to buy out that partner at a discount. We do not want to afford a shareholder any
incentive to oppress other shareholders. The guiding principle we apply in this
case and in Lawson Mardon Wheaton is that a marketability discount cannot be
used unfairly by the controlling or oppressing shareholders to benefit themselves
to the detriment of the minority or oppressed shareholders.
Id. at 38283, 734 A.2d at 738.
The courts reasoning appears to be directed at a situation where the oppressor is
ordered to purchase the oppressed shareholders stock and would receive a windfall if
allowed to purchase it at a discount based on lack of marketability. In Balsamides, though,
the court had ordered Perles, the oppressor, to sell his stock. Forcing Perles to sell at a
discount (based on lack of marketability) did not reward the oppressor, it penalized him.
Penalizing Perles, however, seems to have been exactly the result the New Jersey court
intended.
One commentator observed that Balsamides and Lawson Mardon Wheaton support
only one generalizationthat application of a marketability discount is not just a matter
of economic theory or valuation methodology but, rather, something that will depend on
what the court considers to be fair and equitable under the circumstances, which in the
context of shareholder disputes is often difficult if not impossible to predict. Vincent E.
Gentile, New Jersey Supreme Court Rules on Marketability Discounts in Valuation Cases, N.J.
LAW. 9 (Dec. 1999).

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