Litigation

By: Daniel P. Dwyer

Previously, I blogged about the “standing” requirements that must be satisfied if a shareholder or member of a corporation or other entity, like an LLC, wants to sue its officers, director or managers for mis- or malfeasance. That blog described the requirement for court certification that a plaintiff in such a derivative action adequately represents all other shareholders or members. A related issue is how Pennsylvania’s courts apply the “business judgment rule” and how this interacts with Pennsylvania’s pleading requirements.

The business judgment rule limits courts in second-guessing corporate decisions. Like any such protection, it must be designed to protect others from abuse of the discretion it provides. The Pennsylvania Supreme Court, in Cuker v. Mikalauskas, 692 A.2d 1042, 1045 (Pa. 1997), indicated that a corporate officer will not be liable for the consequences of his or her decision if:

- It was a business decision, and;

- done in good faith, and;

- the corporate official had no personal interest in the outcome, and;

- he or she was informed about the decision to the extent they reasonably believed was appropriate under the circumstances, and;

- he or she rationally believed it to be in the best interests of the corporation.

One need only look at the qualifiers and modifiers in that paragraph to conclude that the protections of the business judgment rule can be very limited. This is particularly true when one considers Pennsylvania’s pleading and motion standards. Therefore, while the business judgment rule may protect a corporate officer from liability, it will not necessarily protect him or her from lawsuits.

Pennsylvania’s courts, while stricter than the federal courts, give a plaintiff a great deal of latitude when asserting claims. A plaintiff only has to plead facts sufficient to place a corporate defendant on notice of the claims against which he must defend. These facts can sometimes be pleaded “on information and belief” that is, the plaintiff’s personal belief about what may have occurred. Finally, there is a judicial preference in favor of rejecting initial challenges to claims; courts prefer to let the parties go through discovery to collect evidence before claims are dismissed. If a claim requires proof of many facts and subjective conditions, it is more likely to proceed to litigation.

In conclusion, although the business judgment rule may protect an officer or director from ultimate liability, it does not necessarily protect him or her from the time and cost of the litigation necessary to establish whether that rule’s protections apply. Even if a corporate officer or director acted in good faith without personal interest and with sufficient information, he or she could still have to pay significant legal fees.

What can business owners, entrepreneurs and lawyers do about this exposure? When forming a corporation, the founders should consider whether the entity should indemnify, that is compensate, the officer or director for legal fees and other litigation-related costs. They should also be aware of the provisions of Pennsylvania’s Business Corporation Law that address indemnification of corporate officers and directors: under some circumstances indemnification is mandatory; under other circumstances, it is prohibited. Finally, parties who serve in these capacities should know whether they are indemnified and the extent of that indemnification.

A subsequent blog will address the law of indemnification of corporate officers. If you have any questions about these topics, please contact Dan Dwyer.

By: Stephen P. Lagoy

General Motors is prepared to proceed with a Congressionally-mandated program that will allow 2000 of GM’s closed dealerships to appeal the closure decision through an independent arbitration process. Dealers who want to file for reinstatement must do so through the American Arbitration Association and commence arbitration by Jan. 25. Under the law, decisions must generally be made by June 14. To read more about this arbitration process, see

http://www.detnews.com/20100108 and http://www.detnews.com/20100109

For information on how arbitration can help you, please contact Stephen P. Lagoy.

By: Donald C. Turner

Was your dealership terminated by GM/Chrysler?

The United States Congress, as part of a $1.1 trillion spending bill, has voted to give terminated General Motors and Chrysler dealers the right to challenge their terminations through arbitration. This legislation requires the arbitrator to balance the economic interest of the covered dealership against the economic interest of the manufacturer and the public at large and, on the basis of this balancing, to determine whether the dealership should remain open. Among other things, the arbitrator is to consider the dealer’s profitability over the period 2006 through 2009, the manufacturer’s overall business plan, the dealership’s current economic viability, its satisfaction of the manufacturer’s performance objectives, the length of experience of the covered dealership, and the demographic and geographic characteristics of the dealership’s market territory. Dealers electing to arbitrate must make a decision to do so within 40 days of the effective date of the Act. The Act became effective on December 16, 2009 and therefore the election to arbitrate must be made no later than January 22, 2010 (The 40-day period ends on Sunday, January 24, 2010 so to be safe, the arbitration should be requested no later than Friday, January 22, 2010). As a result, the dealer should, at this time, commence compilation of the evidence and documentation to support why it should be allowed to continue operations.

This arbitration is to be conducted by arbitrators with the American Arbitration Association and will be conducted in a quasi-judicial proceeding. As a result, careful planning and competent counsel (with automotive and arbitration experience) will be critical to success in these arbitrations, please contact if you are an affected dealer, Don Turner to discuss your options.

Also, see an earlier post on the car dealer arbitration process.

By: Stephen P. Lagoy

The President has signed into law a program giving closed auto dealerships access to neutral arbitration if they want to be reinstated. The process begins immediately and is expected to take six and one half months. For more information on how the auto dealer arbitration process will work see:

http://www.autonews.com/article/

For more information on how the arbitration process can work for you and your business, please contact our office.

Stephen P. Lagoy

By: Stephen P. Lagoy

Congress has approved a plan that would allow 2000 terminated car dealers to pursue third party mediation and arbitration with GM and Chrysler with the possibility of being reinstated. For an analysis of this alternative dispute resolution process and its chances of being successful, see http://online.wsj.com/article/.

For more information how mediation and arbitration can work for your business, please contact Stephen P. Lagoy.

Stephen P. Lagoy is an attorney practicing in West Chester, PA. He is a member of the Association for Conflict Resolution and the PA Council of Mediators.

By: Donald C. Turner

Most closely-held businesses operate as either corporations, limited liability companies, or limited partnerships. There are many reasons for doing so, including tax implications. One of the primary reasons for operating in such a fashion is to protect the individual owners from personal liability for the obligations of the business enterprises. These entities can be very effective in providing their owners with this protection.

Despite these protections, there are certain limited ways in which a creditor of the business enterprise can “pierce the corporate veil” for the purpose of imposing personal liability on the owners of that enterprise. Under the common law of Pennsylvania, such piercing is warranted in the event (1) the entity is not properly organized, (2) the entity is not sufficiently capitalized, (3) the entity fails to adhere to applicable corporate formalities in authorizing transactions and in executing documents and/or in co-mingling corporate and personal funds, or (4) the entity is used to perpetrate a fraud.

Most of these means to “pierce the corporate veil” can be avoided with careful planning, particularly in connection with the formation of the business enterprise, the documentation and authorization of the enterprise’s contractual obligations, and the means by which corporate funds are paid to the owners.

In these times of dwindling business revenues, creditors are more and more frequently seeking to pierce the corporate veil. As a result, now, more than ever, business owners should make certain that they organize their enterprises, operate them, and pay themselves in a manner which minimizes such possibilities.

For more information please contact Don Turner.

By: Daniel P. Dwyer

The economic conditions of the past two years have caused many shareholders or members of corporations and other entities to review management’s actions in a critical light. These reviews, almost inevitably, will result in claims for mismanagement or malfeasance that will lead to litigation. Both the plaintiffs and the defendants in these matters should be aware of the preliminary requirements that Pennsylvania law imposes on claimants. These requirements include the making of a formal demand on the entity prior to litigation and obtaining court certification as an appropriate plaintiff after litigation is commenced. The courts that apply these rules have identified exceptions to these requirements. However, the courts have given little guidance on just how far they will apply these exceptions. If you anticipate either bringing or defending such claims, and want to discuss these requirements and their exceptions, please contact our office.