We did not spend much time on this in class. We discussed that anyone seeking a proxy in a public corporation must first prepare a “proxy solicitation statement” which has a huge amount of information and is therefore very expensive to prepare. Shareholders therefore can ask the corporation to include a proposal into the proxy solicitation statement that the company is preparing anyway. The BOD can refuse to do that on specific grounds. Below is a nice discussion of the shareholder proposal rules. Continue reading
From Bill Rochelle’s Daily Wire:
To avoid dismissal, a complaint must allege each officer’s acts that breached fiduciary duty.
“A well-documented board meeting creates an important historical record that can guide future deliberations and may prove useful during Board disagreements, litigation, Attorney General investigations, other governmental enforcement actions, or an audit by the IRS.”
Many students struggle in Biz Orgs because they cannot conceptualize a board meeting. I have tried to figure out how to have a board meeting in class or a part of a board meeting. I once had a make believe board meeting where the CEO of a very successful company demanded a huge bonus or she would quit. She left the room so the board members (the class) could deliberate. The corp was very profitable and the bonus would not “hurt” the corp. The CEO was a big part of the reason for the success of the company. After some discussion, I passed around 3×5 cards and had everyone vote in secret. The vote was overwhelmingly to reject the requested bonus – all but unanimous.
I then “advised’ the CEO out in the hall of the rejection – and she “advised” me that she quit and left in a huff. Now there are shareholders who are saying that the board blew it by letting her leave. Profit is down.
What result? What would go in the minutes? What would you, as a board member, want in the minutes?
Nice discussion of a shareholder’s rights to review a corporation’s books and records, by K&L Gates. The article is here. The basic rule is that a shareholder may review books and records if he has a “proper purpose.” The article discusses the recent case of Haque v. Tesla Motors, Inc., C.A. No. 12651-VCS (Feb. 2, 2017) where the Delaware Court refused to order Tesla to turnover certain records saying :
The Court acknowledged that use of corporate records to investigate potential wrongdoing or mismanagement at a company is a proper purpose under Section 220. However, before compelling production of records in such cases, the Plaintiff must present evidence to establish a “credible basis” from which the Court can infer that mismanagement, waste, or wrongdoing may have occurred.
Two more things have caught my eye about the Laker feud which provide me a teaching moment for my Biz Org students.
Thing one is that according to some ESPN blog, AEG is a minority owner that “controls” two seats on the corporate board of directors. The BOD remember is Jeanie, Johnny, and Joey Buss and two others. I’m not sure how AEG “controls” the two seats. It is either because it owns enough shares to vote in two seats using cumulative voting, or there is some shareholders agreement between the Buss Trusts and AEG that gives AEG two seats (completely enforceable as it would relate to voting at a shareholder meeting), or there could be more than one class of stock which allocates the board seats among the classes.
Thing two is that I heard someone this morning on the radio assuring everyone that “the documents” make it clear that Jeanie is firmly in control of the Lakers. As I said in the last blog, she seems to be firmly in control as the “controlling owner” for NBA participation purposes, but why can’t AEG use its two board seats to support Johnny and Joey and Jim and appoint someone else as President of the Lakers corp leaving her on the board. Unless the corp is a “statutory closed corp” in California, a shareholder’s agreement making Jeanie the President is unenforceable. The BOD must do that. Why can’t AEG join with Johnny etc to make someone else the “controlling owner”? I assume they can but that would apparently violate Johnny etc’s fiduciary duties owed to these trusts. That seems to raise a serious conflict issue if Johnny cannot vote as a board member on what is best for the Lakers’ corp because of duties he owes to some trust. And it cannot be that the BOD’s hands are tied as to removing Jeanie (again unless there is an enforceable shareholder’ agreement – enforceable being the key word in that sentence). Continue reading
According the L.A. Times this morning, Jim and Johnny Buss tried to take over the Lakers and “oust [Jeannie Buss] as the Lakers’ president and controlling owner.” Jeannie Buss responded by asking the court to issue a restraining order stopping the effort and that apparently was successful.
According to the article,
Jeanie Buss [had] removed Jim Buss from his role as Lakers vice president of basketball operations and hired Magic Johnson. Three days later, according to court documents, Johnny Buss notified his sister of a March 7 meeting to elect the team’s board of directors. He is listed as overseeing corporate development of the Lakers.
The brothers proposed four directors, according to court records, but didn’t include her. In order to be the controlling owner, she also must be a director.
The family trusts that own 66% of the Lakers can elect three of the board’s five members. The trusts mandate the co-trustees — Johnny, Jim and Jeanie — take all actions to ensure Jeanie Buss remains controlling owner of the Lakers. She has occupied the role since their father, Jerry Buss, died in 2013.
Pretty fun. So let’s put all of this in the terms we talk about in class. The first thing we need to know is whether this is a corporation. I went to the business search function of the California Secretary of State and found a corporation “The Los Angeles Lakers, Inc.” formed in 1979. The form SI indicates that Jeannie Buss is the President and there are five board members: Jeannie, Joey and Johnny plus two other persons whose names aren’t Buss. No Jim. Continue reading
There was a 10b(5) issue on the final exam. The “trader” was on the board of the company whose shares he was trading so he was clearly a “certain” person when he sold the shares to Zack, meaning he had a duty to disclose or not trade. The issue was whether the “info” he had was “material non-public information.” The info you say? Essentially all financial info of the company that was material and non-public plus the fact that he, the seller, thought the other shareholder was lazy.
I mentioned a few times during the semester that the Supreme Court was considering an insider trading case this term. They issued their opinion today in Salman v. United States. It was an 8-0 decision with Alito writing the opinion. The opinion is not long and lays out very nicely how insider trading works – at least as to tippees!
It seems a guy named Maher Kara “was an investment banker in Citigroup’s healthcare investment banking group.” He is the source of the inside info. It is info about corporations looking for mergers or acquisitions, thus hiring investment bankers. He gave his older brother Michael the inside info – apparently bunches of times – because he and his brother were very close. Michael used the info to trade in the securities of Maher’s clients. Michael (not Maher) gave the inside info to Salman (the defendant) who also traded on it. Salman was Maher’s brother-in-law and was apparently also close to Michael. The SEC went after Maher, Michael and Salman under Rule 10b(5). Maher and Michael basically confessed but Salman fought the criminal charges. The SEC said that Maher was the “certain person,” and Michael and Salman were tippees. Continue reading
This is from the Georgetown Supreme Court Institute. It is a preview of cases on the Supreme Court docket for the upcoming term. One of the cases fits into our study of a part of Rule 10b-5 known as insider trading,
Insider Trading Liability
Salman v. United States
Section 10(b) of Securities Exchange Act of 1934, and the SEC’s implementing Rule 10b-5, broadly prohibit deceptive or fraudulent acts in connection with trading securities. For over 35 years, the Court has recognized insider trading as a Continue reading
Bankruptcy Judge Neil Bason has a nice explanation of Fiduciary Duties in a bankruptcy case. See Solution Trust v. 2100 Grand LLC (In re AWTR Liquidation Inc.), 548 B.R. 300 (Bkrtcy, C.D. Cal, 2016)(Bason. J.)
C. Corporate Fiduciary Duties
Corporate fiduciary duties typically are divided into three categories (although the
last of these may be a sub-category):
Duty of care – This is the duty to exercise reasonable prudence in making
business judgments for the corporation, including gathering adequate
information and undertaking due consideration of the relevant issues.
See, e.g., Lamden v. La Jolla Shores Clubdominium Homeowners Assn.,
21 Cal.4th 249, 258 (1999) (“A director shall perform the duties of a
director … with such care, including reasonable inquiry, as an ordinarily
prudent person in a like position would use under similar circumstances.”). Continue reading