Articles Posted in Shareholder Disputes

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Directors of a corporation owe fiduciary duties to the shareholders of the company. This means that when directors communicate with shareholders about the company, they have a fiduciary duty to exercise due care, good faith and loyalty. Directors can be held personally liable if they intentionally or recklessly mislead shareholders about the business or condition of the corporation. A Delaware Chancery Court recently dismissed a suit filed against the directors of GoPro, Inc. by a group of disgruntled shareholders who alleged that the directors misled them by issuing overly optimistic revenue guidance that the company was unable to live up to.

In 2016, GoPro, the camera manufacturer, had plans to roll out several new products to the market including a premium drone equipped with the latest GoPro cameras and a new wearable camera that has become ubiquitous among outdoor enthusiasts and influencers around the globe. GoPro’s board of directors issued revenue guidance for 2016 based on projected sales of both products. The revenue forecasts were generally positive. Continue reading ›

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Minority shareholders in closely held businesses generally lack the ability to control the actions of a company which makes them vulnerable to oppression from the controlling shareholder or shareholders. Minority shareholder oppression claims frequently include allegations that the controlling shareholders have funneled company money or resources to themselves and attempted to hide the misconduct by excluding minority shareholders from accessing books and records. Minority shareholders in Illinois are not without recourse, however, as they have a statutory right to examine the corporation’s books and records. As the First District appellate court recently reminded us, the right to examine corporate books and records demands compliance with certain technical requirements.

The case, Elleby v. Forest Alarm Service, Inc., was filed by a minority shareholder, Ruth Elleby, who owned a 33.5% interest in Forest Alarm Service, Inc. which the complaint described as a family-owned, closed corporation. In addition to Elleby, Forest had three other shareholders: Linda Lichtenauer, Mark Coyle, and Ron Lyngen who owned 33.5%, 16.5%, and 16.5% of Forest, respectively. Coyle was the President and Secretary of Forest in addition to being a shareholder. Continue reading ›

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After several former employees stole and destroyed internal data from their employer in order to found a competing business, and were sued, the trial court’s appointing of a third party to monitor the new company’s compliance with discovery and restraining orders was not error.

Shamrock Corporation has sold antifreeze, motor oil, and heat transfer fluids since 1974. Eventually, John Dreamer, Sr. became the sole shareholder of Shamrock. When John died, his wife, Annie Dreamer, became the sole shareholder. The entirety of Shamrock’s stock is held in a trust with Annie as the beneficiary.

Shamrock had five employees: John Dreamer, Jr., Les Kreifels, Steven Wroblewski, David Wells, and Chris England. The Dreamer family decided to sell Shamrock and offered Wroblewski and Wells the opportunity to make the first offer. The two submitted an offer that was financially acceptable but included collateral terms that the Dreamer family refused to accept. In August 2017 Shamrock made a counter-offer that revised some of the collateral terms.

In September 2017, Wroblewski and Wells abruptly resigned. England resigned four days later. Just prior to their resignations, the three had Beaver Shredding, Inc. destroy several boxes of documents at Shamrock’s headquarters. The three also deleted large amounts of data from Shamrock’s internal computer system. Prior to the deletion, Wroblewski had uploaded data from the computers to the digital storage site Dropbox. Continue reading ›

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As we have written about previously, one of the concerns with purchasing a minority stake in a closely held corporation is the potential for shareholder oppression. This concern is even more relevant when a non-family-member considers buying into a family-owned business. One minority shareholder found this out the hard way when he suffered a backlash after raising concerns about the conduct of the founder and majority shareholder of a closely held Illinois corporation.

In 1962, Kenneth Packer founded Packer Engineering Inc. (“PEI”) and its parent company, The Packer Group, Inc. (“TPG”), in Du Page County. Packer soon grew PEI into a well-respected professional engineering firm. Both PEI and TPG shared a number of the same officers and directors, including Packer who served as the board chairman for both companies.

In 1979, Edward Caulfield was hired by PEI as its director of mechanical engineering. In 2002, Caulfield became president and chief technical officer of PEI. Caulfield was offered a minority equity interest in TPG in addition to his base salary of $500,000. Continue reading ›

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No withstanding allegations of majority shareholder oppression, the Seventh Circuit rejected those arguments paying deference to the business judgment rule because of the Indiana Legislature’s directive to give officers and directors a wide berth for their business decisions.  The Court observed:

 “Indiana has statutorily implemented a strongly pro-management version of the business judgment rule,” G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 238 (Ind. 2001)— the rule that creates “a presumption that directors making a business decision, not involving self-interest, act on an informed basis, in good faith, and in the honest belief that their actions are in the corporation’s best interest.” Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988), overruled on other grounds in Brehm v. Eisner, 746 A.2d 244 (Del. 2000).

You can listen to the oral argument before the court here:

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download-300x150download-1-300x150Super Lawyers named Chicago and Oak Brook shareholder oppression attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Patrick Austermuehle of the Firm was named a Rising Star again and has a great deal of experience as a Chicago Defamation Libel and Slander Lawyer.  Peter Lubin and Patrick Austermuehle have achieved this honor for many years which is only given to 5% of Illinois’ attorneys each year.

Lubin Austermuehle’s Oak Brook and Chicago business dispute lawyers have over thirty years experience in litigating defamation, breach of fiduciary duty and shareholder oppression lawsuits.  Our Chicago non-compete agreement and trade secret theft lawyers prosecute and defend many types of unfair business practices and emergency business lawsuits involving injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud.



Lubin Austermuehle’s Wheaton, Schaumburg, and Evanston business litigation attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action, and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Naperville and Aurora, we serve clients throughout Illinois and the Midwest.

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If the CEO of a bankrupt company buys shares in a spinoff company, is that evidence of sabotage, or just that they’re trying to make the best of a bad situation?

Edward Lampert, who was chairman and CEO of Sears Holding Corp. when it went bankrupt, is now being sued by the company for allegedly orchestrating shady dealings between himself, his hedge fund company (ESL) and Sears’ finances.

Having taken the reigns of the company when it was already in a financial downward spiral, Lampert allegedly made promises he couldn’t keep about turning the company’s finances around. Instead, he and his investors bought some of Sears’ largest and most valuable assets, then invested in the companies that spun off from Sears using those assets, essentially profiting off Sears’ bankruptcy.

Shareholders who received stock in the home improvement branch of Sears, known as Orchard Supply Hardware Stores Corp. allegedly received millions of dollars’ worth of stock, but without properly compensating Sears. Three of the shareholders who were on the board of Sears owned stock in the home improvement store that was collectively worth more than $100 million, according to the lawsuit.

When Sears Hometown and Outlet Stores was spun off into another company, those who owned stock in Sears were given the opportunity to buy shares of the new company. Continue reading ›

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We obtained justice in a shareholder dispute and shareholder oppression case after Defendants hired a former partner of the judge.

The Sun-Times reported the story as follows:

Lawyer’s motives questioned after judge’s recusal 

Did lawyers for one side of a case hire the judge’s former law partner just so the judge would recuse himself?

It doesn’t matter — it “just simply looks bad,” Dorothy Kirie Kinnaird, presiding judge of the Cook County Circuit Court’s Chancery Division, wrote in a rare order knocking attorney Myron “Mike” Cherry off a case. Cherry is a heavyweight fund-raiser for Democrats such as former President Bill Clinton and 2004 presidential candidate
John Kerry.

Kinnaird found Cherry’s 11th-hour entry into the case of Yvonne DiMucci vs. Anthony DiMucci suspicious because the judge in the case, Peter Flynn, practiced law with Cherry for 23 years as the firm of Cherry & Flynn. And Cherry’s entry into the case just two days after Flynn ruled against Anthony DiMucci on some motions prompted Flynn to recuse himself.
Yvonne DiMucci’s lawyers suggested that could have been the goal of Anthony DiMucci’s’ attorneys. Yvonne alleges her brother-in-law, Anthony, froze her out of a business in which he and her late husband, Salvatore DiMucci, were equal partners. The case has dragged on for six years.

“The court believes that the filing of the appearance by Mr. Cherry under the circumstances of this case constitutes the appearance of impropriety and that no objective, disinterested observer would perceive otherwise,” Kinnaird wrote. “This court is specifically not finding that Mr. Cherry entered the case in order to force Judge Flynn’s recusal or in an attempt to
incur favor with him.” However, Kinnaird wrote, given that Flynn recused himself the last time Cherry was on a case, “a persuasive argument
can be made that . . . Mr. Cherry should have known that such a recusal would occur.”

Kinnaird called it “egregious” for Cherry to file his appearance on behalf of Anthony DiMucci without getting Flynn’s
permission, a sentiment echoed by other Chancery Court judges. Judges rarely, if ever, refuse to allow an attorney to join an existing legal team for a case, unless there appears to be
some conflict of interest, as charged in this case. Cherry did not appear in court to file his appearance as Kinnaird said is the custom. Rather, he sent Flynn a copy of the notice that he was joining the case.

“This court has never seen or heard of a situation in the Chancery Division where an attorney has filed an appearance without leave of court and then sent a copy of that appearance by messenger directly to the judge,” Kinnaird wrote. Kinnaird’s solution was to strike Cherry’s appearance from the record and transfer the case back to Flynn. Cherry can
seek Flynn’s leave to join the case. She ascribes no “ill motive” to Cherry or anyone else in the case. Cherry respectfully disagrees with Kinnaird’s ruling, saying the law allows anyone to have the attorney of his choice.

Cherry’s reading of the law is backed by Northwestern University Law Professor Steve Lubet and former Cook County Judge Brian Crowe, who authored an affidavit served on the court.
The law further states that a judge need only recuse himself for three years after practicing with a lawyer. Flynn left Cherry’s firm five years ago. Kinnaird said some Chancery Court judges continue to recuse themselves from cases involving their old firms 20 years after leaving them. Continue reading ›

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When two sisters, minority shareholders and directors of a moving company, were denied access to corporate books, the trial court erred in finding that, as corporate directors, they had absolute access to corporate records. Rather, they had presumptive access and the corporation was required to demonstrate that request for documents was made for the improper purpose.

Barbara Munroe-Diamond, Sally Sharkey, James P. Munroe, and Michael F. Munroe are siblings and the shareholders and directors of the Pickens-Kane Moving and Storage Company. In the winter of 2013, the board of directors hired Ft. Dearborn Partners, Inc. to provide a fair market value for the company’s stock. The next summer, a valuation of $3158 per share for controlling share and $1522 per share for minority shares was issued. Controlling shares of the company were entirely owned by James and Michael Munroe, while Barbara and Sally owned minority shares.

The board of directors unanimously authorized the company to redeem minority shares for $1522 per share. In early 2015, following negotiation, the company paid $1600 per share for minority shares. Every minority shareholder except Barbara and Sally redeemed their stock. Both sit on the board of directors. In July 2016, Barbara and Sally made a demand upon the company to make available for inspection and copying any and all documents pertaining to the corporate minutes, stock certificates, lists of assets and liabilities, and other business records. James and Michael refused to comply with the request, arguing that Barbara and Sally gave no purpose for their request or how their request related to their duties as directors.

After negotiations for the records failed, the sisters filed a mandamus action in Illinois court seeking to compel production of the records. The circuit court entered an interim order requiring the brothers to allow access to the books, finding that the sisters, as directors, had an absolute and unqualified right to examine the books and records of the corporation. The brothers then appealed. Continue reading ›

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Walking the tightrope of business ethics and practice becomes more and more under scrutiny in a climate where minorities are divided.  Business owners want to maximize potential, please customers and, let’s face it, the money does matter! Have a business and then be implicated with being racist will come into play in affect image negatively.  That’s where allegations of a racist slur have hit the founder of Papa Johns. He came under fire for criticizing the National Football League’s leadership when it came to the anthem “take-a-knee” protests by players. Comments made have come to haunt him in such a way to put him in trouble and, eventually, have led to suit.  In the suit filed, company documents are to be inspected due to the company’s treatment of him since the publication of a rumor.  He says they are false.

The incident surrounds a conference call made and use of the N-word when it came to Colonel Sanders and KFC.  Papa Johns was a sponsor of the National Football League and the context of the conversation came about when national anthem protests were being discussed. In asking him to resign from the company, he feels ousted without proper investigation into the matter. This has, in turn, lead to a “breach of fiduciary duties” in cutting him off from the company.  All marketing materials and commercials, including logos have been edited to remove his name or image as well.  It is likely that all materials that he is entitled to will be brought into the lawsuit.  He feels he will be exonerated. Continue reading ›

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