Nice discussion of what does a law partnership “own”?

Diamond v. Hogan Lovells US LLP (In re Howrey), 950 F.3d 1200 (9th Cir. Feb 2020)  

Issue:   Does a “dissolved [law]firm have a property interest in the profits earned from ongoing client matters billed on an hourly basis,” under District of Columbia law? 

Holding:   No. 

Appeal from the district court. 

Gould, Murguia, Freudenthal

The law firm Howrey LLP, organized under District of Columbia law, decided to dissolve in 2011.  The partners then amended the partnership agreement “to include a ‘Jewell waiver’ which would free any departing partner from any obligation to account for profits related to the winding up of unfinished business.”  This meant that partners that left the firm could take their existing cases and not have to account for the profits of those cases to the partnership.  A month later, creditors filed an involuntary petition.  The trustee sued several firms for “work done on client matters that had been started at Howrey, attempting to recover portions of payments made by former Howrey clients for work done on those ongoing matters.”

“[T]he Trustee argues that partners who dissociated pre-dissolution had a duty to account for profits earned on ongoing client matters, and that Howrey can recover those profits from the defendant firms under an unjust enrichment theory.  The Trustee argues that partners who left after the March 15, 2011 dissolution had a duty to account to Howrey for any profits earned on ongoing client matters, that the Jewel waiver constituted a fraudulent transfer of that interest from Howrey to the partners under 11 U.S.C. § 548, and that the Trustee can recover from the defendant firms as subsequent transferees under 11 U.S.C. § 550.”    

The bankruptcy court ruled for the trustee.  The district court reversed. 

The 9th Circuit asked the District of Columbia advise it on the issue.  That court issued its ruling on February 13, 2020.  As to contingency fee matters, if a firm is half way through a contingency fee matter and the partner leaves and takes the case with him, does the firm he left have a right to some of the ultimate profit?  Yes.  Although the Jewell waiver says that the partners can agree when dissolving, that the old firm has no further interest in matters each takes with him.

But these are hourly cases.  The billing done before leaving is property of the firm that he left.  Does the firm he left own a property interest in the case he took with him?  That, at least here, depends on District of Columbia law.  It is an important issue because, “On the one hand, if a firm goes into bankruptcy all of its suppliers become creditors and will be impacted by the scope of a partner’s duty to account for profits.”  On the other hand, “If, when a firm is failing, a lawyer cannot complete any pending client work for the benefit of his or her new firm, that will make it harder for lawyers to find a new home if their firm fails.”

The District of Columbia court ruled succinctly (all ruling are according to DC law):

We answer the above questions as follows:

(1) We hold that hourly-billed client matters are not “property” of the law firm.  A client has an almost “unfettered right” to choose or to discharge counsel. … Therefore, a law firm has no more than a “unilateral expectation,” rather than a “legitimate claim or entitlement,” to future fees earned from continued work on hourly-billed client matters. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

(2) After a partner leaves the law firm (disassociates), the partner owes no continued duty to the former law firm to account for new profits earned on hourly-billed client matters that started at the former firm.  A dissociated partner has a limited duty of loyalty to the former firm only “with regard to matters arising and events occurring before the partner’s dissociation.” …. This limited duty requires a dissociated partner to remit profits earned on work performed prior to the partner’s dissociation, but does not include profits earned from work performed subsequent to the partner’s dissociation.

(3) Since a dissociated partner has no duty to account for profits earned after the partner leaves the firm, we need not address this question.

(4) A dissolved law firm has no interest in profits earned on hourly-billed client matters following dissolution.  A dissolved law firm is only entitled to proceeds earned as part of the firm’s “winding up” process, which include acts that preserve partnership rights and property, prosecute and defend actions, settle or transfer partnership business, or distribute assets. “Winding up” does not encompass new business or work done on former client matters after dissolution by former partners. The dissolved partnership can no longer undertake work on these matters after dissolution. …

Interesting new case in California

Hooked Media Group, Inc. v Apple, Inc. (May 2020) 55 Cal.App.5th 323

2.  Who is the plaintiff or movant?  Who is the defendant or respondent?

            Plaintiff is Hooked Media “a startup company.”

            Defendant is Apple, Inc.   

3.  Exactly what relief has the plaintiff requested?

            Damages.    

4.  What is the legal basis for the request?

            “fraud; misappropriation of trade secrets; interference with contract and prospective economic advantage; aiding and abetting breach of fiduciary duty; unfair business practices; and unjust enrichment.”

5.   What facts does the plaintiff provide that support the request?

            Hooked Media approached Apple to see if Apple would acquire it.  Apple expressed interest.  After a few meetings in which Hooked Media disclosed trade secrets, Apple said it wasn’t interested in acquisition but was interested in certain employees.  Shortly thereafter Apple hired the company’s Chief Technical Officer and two other key engineers.  Apparently that was the guts of the company.                     

6.   How did the case end at the trial court level?

            The trial court granted summary judgment for Apple.  Court of Appeals affirmed. 


7.  What standard did the court use to resolve the issue?

            No material facts at issue.  Apple has a right to judgment as a matter of law.          

8.   What is the defendant’s opposition? 

            Apple said it refused to sign a non-disclosure agreement at the outset.  It did not lie about anything especially about its intent to buy Hooked.  The employees it hired were “at will” so it did not interfere with anything.   The people it hired did not owe fiduciary duties to Hooked.  Hooked voluntarily disclosed what it disclosed.  Apple did not actually use the “secrets” and the employees did not actually take anything from Hooked.                   

9.   Who won and Why?  What is the court’s reasoning for giving the plaintiff what she requested or denying the request. 

            The trial court said that the statements made alleged to be false were about things to happen in the future so Hooked must show evidence that Apple did not intend to perform from the outset.  The court commented that California has many laws about employees being able to freely move from one employer to another.  Covenants not to compete are generally unenforceable.  It said much of Hooked’s arguments were really trying to create a covenant not to compete.   As to aiding and abetting and unfair business practices, there were no “bad acts,” therefore those causes of action failed.  Unjust enrichment is not a cause of action; it’s a remedy.    

            Note, there may still be claims against the individuals who left.

            Note 2, the California Supreme Court has agreed to review this (I think).

            Note 3, the parties apparently did a ton of discovery before the summary judgment motion.  Apple alleged it spent $360,000 just in costs during discovery, i.e., not including attys fees.    

Another question re mid-term and my videos on D2L

Hi Professor, The videos were informational.

I have two questions: 1. To whom do make your disclosures when you are selling a security? 2. If a corporation with stockholders and one of them want to sell his/her stock, isn’t that stock already registered since it was previously sold?

  1. For securities laws purposes, the security has to be “registered.” It’s not about you disclosing anything. If it’s a duty to disclose under Rule 10b-5, you disclose to the other party (if there is a duty to disclose). If you cannot disclose (because you don’t know who the other party is), you must abstain from trading.
  2. Stock doesn’t just stay registered, the basic rule of “register unless exempt” applies to every transaction.

Question from student re second mid-term

As I was going over Judson’s Tax Service essay, I realized that in the past, you have expected students to discuss securities law as a cause of action for Donald. However, I have the following questions / comments:

1) This corporation is not a public traded company,

2) the corporation is not selling stocks (securities), and 

3) the loan by Donald is not a security, repayment of a loan is not contingent on the company’s expected gains or losses. There are no facts indicating that Judson has offered any percentage of ownership of the corp. to Donald, nor that Donald expected any profits from the efforts of others. 

Could you please explain how a securities issue is present?

RESPONSE:

The short answer is no.

As I have stated many times, answer the question asked.

(1) Tina now believes that her audit was mishandled by Judson. Who can she sue, on what basis, and what is the likelihood of success?
(2) Donald has not been paid. Who can he sue, on what basis, and what is the likelihood of success?
(3) Robert wants to sue to collect the 50% he was promised. Who can he sue, on what basis, and what is the likelihood of success?

If securities law is part of the answer to one of those questions, then it should be included.

Good question from a student re corporations which enter into partnership agreements.

Hi Professor Hayes,

If someone opens a corporation, then enters into a partnership to carry out the business, does that mean that the corporation becomes part of the partnership or the corporation will be a separate entity?

Response:

First a corporation, once formed, will continue to exist and be a corporation until the end of eternity unless dissolved by the state. A partnership is the same except that it ends when the agreement ends (or eternity, whichever occurs first).

If a corporation enters into a partnership with someone else, a person, a corp or another partnership, then the corp is a partner in the partnership. The corp has its assets and business, the partnership has its assets and business. Assume that Apple and Microsoft decide to build a new computer, they could form a new corporation to do that (which issue stock to each) or just agree to do it together which would create a partnership (sometimes called a joint venture). The partnership is created by the agreement to create the thing. IT has two partners.

You and I could agree to start a sports bar. We each form corps, mine is ProfHayes, Inc. Yours is “Student, Inc. The two corps then agree to buy or build a sports bar. That agreement creates a partnership which would then own and operate the sports bar. If the partnership agreement says the partners get x dollars per month, that would go to the two corps. The BOD of each corp would then decide to declare dividends or invest the money or whatever. The partners are liable for the debts of the partnership but that means the two corps, not you and I personally.

Study Sessions

I cannot meet with anyone tomorrow. For one thing, I am grading the exams. I will meet with students on Wednesday of next week by Zoom at 5pm. Send me your name and email so I can send you a Zoom invite. Next Saturday I will be out of town.

What is an investment contract? For securities laws purposes?

This case is not in the textbook but is helpful I think.

1.  Name of the Case and case cite. 

Smith v. Gross, 9th Cir Court of Appeals, 1979

2.  Who is the plaintiff or movant?  Who is the defendant or respondent?

            Plaintiff is an investor in an earthworms farm

            Defendant is the promoters/sellers 

3.  Exactly what relief has the plaintiff requested?

            Plaintiff seeks damages for violations of “federal securities laws.”   Note:  that is how the federal court got jurisdiction.  

4.  What is the legal basis for the request?

            They entered into an investment contract with the defendants.  The contract was a security which was not registered or exempt.            

5.   What facts does the plaintiff provide that support the request?

            Plaintiffs bought an “earthworms farm.”  The seller defendant’s told them that “very little work was required” and defendants would buy the worms produced which would “guarantee success.”  They said also that they were mislead by representations about how fast worms multiply each year.     

6.   How did the case end at the trial court level?

            The trial court dismissed the complaint “for lack of subject matter jurisdiction” saying the transaction did not involve federal securities laws.  The Court of Appeals reversed.     

7.  Given how the case ended, what is the standard that the court used to resolve the issue?

               Plaintiff did not state a claim for relief.  It’s not clear how or when the trial court dismissed the case.    

8.   What is the defendant’s opposition? 

            The transaction was not a security therefore could not be brought in federal court.   Sellers were simply selling worms and a business concept.  Plaintiffs ran their own business, made profits based on their own abilities.      

9.   Who won and Why?  What is the court’s reasoning for giving the plaintiff what she requested or denying the request. 

            The plaintiffs won at least sending the case back to federal district court.  The C/A said this was an investment contract because it is 1. an investment of money, 2. in a common enterprise, 3. with profits to come solely from the efforts of others.   A big factor was that the deal plaintiffs made was that they would buy worms and that defendants would buy them back at a guaranteed price which guaranteed a certain profit.  The buyers of the worms were not the public but the defendants.        

New case on the business judgment rule

Coley v. Eskaton (2020) 51 Cal. App. 5th 943

This is an action by a homeowner against the board of an HOA. The court awarded $2,300 in damages and $654,000 in attorneys fees! The plaintiff argued that the directors breached fiduciary duty and other claims, alleging directors approved actions of HOA for benefit of operators rather than HOA itself and homeowners. The court found directors breached fiduciary duty to HOA but declined to find directors liable in their personal capacities. The court of appeals reversed saying:

1 directors failed to establish HOA transactions were fair and reasonable;

2 directors had personal financial interest in transactions they approved that was distinct from interest of HOA members generally; and

3 directors breached fiduciary duty to HOA members by approving transactions in which they had material financial interest and which were not inherently fair to HOA and its members.

As to the BJR, theopinion says:

B. Application of the Business Judgment Rule

1The defendants’ next claim the court misapplied the business judgment rule. The business judgment rule is a policy of deference to a corporate board’s decisionmaking. (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249) But the trial court here found the rule inapplicable because the Eskaton entities’ employees who sat on the Association’s board had an “irreconcilable conflict of interest” that “preclude[d] the business judgment rule as a defense to liability in this case.” According to the defendants, rather than finding this conflict precluded the business judgment rule altogether, the court instead should have afforded the defendants an opportunity to reclaim the benefit of the rule by showing they acted in good faith after reasonably investigating material facts. We view the law differently.

1. Background law

California recognizes two types of business judgment rules: one based on statute and another on the common law.  Corporations Code section 7231 supplies the relevant statutory rule for nonprofit mutual benefit corporations like the Association. Under that statute, a director is not liable for “failure to discharge the person’s obligations as a director” if the director acted “in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.” (Corp. Code, § 7231, subds. (a)(c).) The common law business judgment rule is similar but broader in scope. It is similar in that it immunizes directors for their corporate decisions that are made in “good faith … to further the purposes of the [corporation], are consistent with the [corporation’s] governing documents, and comply with public policy.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 374) And it is broader in that it also “ ‘insulates from court intervention those management decisions’ ” that meet the rule’s requirements. (Lamden, supra, 21 Cal.4th at p. 257.)

45A director, however, cannot obtain the benefit of the business judgment rule when acting under a material conflict of interest. Deference under the business judgment rule is premised on the notion that corporate directors are best able to judge whether a particular transaction will further the company’s best interests. (Gaillard, supra, 208 Cal.App.3d at p. 1263, 256 Cal.Rptr. 702.) But that premise is undermined when directors approve corporate transactions in which they have a material personal interest unrelated to the business’s own interest. And it is particularly undermined when a majority of these directors approve transactions while having a material conflict of interest. Under those circumstances, the directors carrying this conflict of interest are precluded from seeking the benefit of the business judgment rule. (See Everest Investors, supra, 114 Cal.App.4th at p. 430, 8 Cal.Rptr.3d 31Gaillard, supra, 208 Cal.App.3d at p. 1263, 256 Cal.Rptr. 702.)

678But although the business judgment rule is inapplicable under these circumstances, that is not to say that corporate decisions affected by these types of conflicts are improper as a matter of law. As with the business judgment rule generally, statutory and common law requirements are again relevant in this context. Corporations Code section 7233 supplies the relevant statutory rule. It provides, among other things, that an interested director who casts a deciding vote on a transaction must show the “transaction was just and reasonable as to the corporation at the time it was authorized, approved or ratified.” (Corp. Code, § 7233, subd. (a)(3).) Section 7233, however, only applies to transactions “between a corporation and one or more of its directors, or between a corporation and any domestic or foreign corporation, firm or association in which one or more of its directors has a material financial interest.” (Corp. Code, § 7233, subd. (a).) The common law rule, as before, is similar but broader in scope. It is similar in that it requires interested directors to “prove that the arrangement was fair and reasonable”—a rigorous standard that requires them “ ‘not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.’ ” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 31-32, 216 Cal.Rptr. 130, 702 P.2d 212 (Tenzer).) And it is broader in that, unlike Corporations Code section 7233, it is not concerned only with transactions between a corporation and either its directors or a business in which its directors have a material financial interest. (See Corp. Code, § 7233, subd. (a).) Rather, recognizing the potential for self-dealing may also exist outside this particular context, courts have found directors must also satisfy the common law requirements when they approve other transactions in which they have a material financial interest distinct from the corporation’s own interest.

Questions re first mid-term

1- Did Jack own 100% of the shares and was he the sole member when he decided to sell the SSI stock, or he did sell the stock while he owned 87% and without going back to the BOD?

2- Does a derivative suit on behalf of the company include causes of actions that arises before the shareholder bought his shares in the company? 

Answer:

  1. I’m not sure why students are asking about the timing of the sale of the shares and who sold the shares to the new shareholders. He is a shareholder and a bunch of other people are shareholders. If you think the timing of the sales of the shares matters, you have to say why and explain what the result would be first if he sold his own shares and second if the corp sold new shares. For whatever it’s worth; a sale of shares by the corp must be approved by the BOD (therefore what is the consequences if the BOD does not approve?). A sale by a shareholder of his personal shares does not have to be approved by the corp or anyone else – forgetting securities laws. These are not issues in this question. If you think they are, by all means explain why. I will listen.
  2. The answer to this is no. But don’t worry about whether the derivative suit was procedurally proper. I should have said that in the question, although again it could be answered easily; “if she didn’t own shares when the bad things happened, she cannot be the plaintiff.”

Note: I have been thinking about this as I’m writing the response. The question says S wants her investment back. That’s a good question when we get to securities laws. Can she get it back from Jack? Your answer should say “yes, if ——-.” “No, if ———.” Can she get it back from the corp? Same.

But the question says (you forced me to look at the question): Suzie files a derivative suit against Jack and the BOD. It doesn’t ask you if she can get her investment back directly from Jack.

Good questions.