The sale of control of a corporation at a premium Vinzite is not a breach of duty. A “premium” is the amount an investor is willing to pay to gain control of a corporation.
But, a sale of control under the following circumstances may be actionable:
1. The sale of control is, in effect, a disposition of control over a business asset that the corporation may not use to the corporation’s advantage. For example: if a majority shareholder sells his shares to a party paying a premium for control over certain transactions but who otherwise would not pay a premium for the corporation itself.
2. The majority shareholder failed to disclose receipt of a premium when a purchaser attempted to acquire the minority’s share;
3. The majority shareholder failed to disclose favorable employment contracts, profit-sharing agreements, etc.
4. If the offer is to purchase all shares at the same price, the majority first buy out the minority at a lower price without disclosing the higher bid to the minority shareholder.
Although the law is still developing, the minority may be eliminated at a lower price if there is a legitimate business purpose. State cases and statutory law are diverse on minority shareholder rights. Given two identical facts, a sale by a majority shareholder could, for example, give rise to a cause of action in California while conforming to Delaware law. In deals involving several shareholders, the attorneys for each shareholder should research the question of “premiums” concerning the state of incorporation and the state wherein the company’s principal place of business is located.
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Duties to Other Purchasers
Probably the most significant case in this area was a Houston jury’s award of $7.53 billion in actual damages and $3 billion in punitive damages to Pennzoil Co. In 1984, Pennzoil negotiated a takeover deal with Getty Oil Co., which Texaco eventually purchased for $10.2 billion. Pennzoil then sued Texaco for $14 billion, charging that Texaco coaxed Getty into jilting the Penzoil takeover deal. Intentional interference with contractual relations, intentional interference with prospective business advantages, and related torts are “hot ticket items,” and general and punitive damages are almost unlimited. This exposure provides another reason both buyer and seller should involve their attorneys more than just having them review the Buy-Sell Agreement.
Opinions as to Performance
Sellers inevitably opine how well a dealership will do with additional capital or a new owner, and the courts have generally supported the adage “No one can predict the future” and refused to recognize a cause of action based upon one party’s predictions to the other regarding future events, performance, opinions, or intentions. Statements such as “there are no bad franchises — only bad operators,”; the store was “a gold mine,”; or that the buyer would make more money than before have been held “purely opinion, puffing, or conjecture as to future events” and as a matter of law is not actionable.
Automobile dealerships are anomalies in the field of buying and selling businesses because, by the very nature of the company, both parties must be amongst the most knowledgeable people in the area, as the seller has already been qualified by both the factory and a financial institution as having that special knowledge and extra skill necessary to be approved as a dealer. Because the buyer intends to purchase the dealership, the buyer has represented that the possessions have the knowledge and skill required to obtain factory and finance approval or that someone on his team possesses the qualifications necessary.
In Denison State Bank v. Madeira, the defendant purchased an automobile dealership. In addition to refusing to pay his loan, he cross-complained against the Bank, alleging the Bank misrepresented and omitted material facts about the dealership when he purchased it. In reversing a jury verdict against the Bank, the appellate Court stated the defendant was a knowledgeable car man. Although he testified he trusted and relied upon the Bank to furnish him with complete, honest information, he could not abandon all caution and responsibility for his protection and unilaterally impose a fiduciary relationship on the Bank without a conscious assumption of such duties by the Bank. See, too: Kruse v. Bank of America, where the Court stated the plaintiffs could not have reasonably expected what they said they expected from the Bank’s promises and assurances.
But Beware: In Martens Chevrolet, Inc., the owner of the dealership was negotiating with the plaintiffs to sell his dealership, and in response to the Plaintiff’s inquiries as to the profitability of the dealership; the owner indicated that it was “wildly profitable” and offered produced a handwritten trend sheet prepared by his accountants supporting the statement and stating that the audited accounts of the dealership’s operations were not complete or available. After the purchase, the buyer learned that the dealership was operated at a loss, as reflected in audited statements prepared before the negotiations and sale sued to allege breach of contract, deceit, and negligent misrepresentation against the former owner. The Court assumed a duty between the former owner and the buyer and reaffirmed the tort of negligent misrepresentation against the dealer.
Special Rules for Accountants
Other courts employ three different tests to determine what if any, duty an accountant has to a third party in preparing a financial statement for his client. These tests were:
1) The Traditional (Ultramarines) Approach holds that before a plaintiff could sue an accountant, he had to have privity or a relationship equivalent to privity. The Plaintiff must establish the following:
(a) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes;
(b) in the furtherance of which a known party or parties was intended to rely upon: and
(c) there must have been some conduct on the accountants linking to that party or parties, which evidences the accountants’ understanding of that party or parties’ reliance. S Ultramares v. Touche and Credit Alliance Corp v. Arthur Anderson and Co.
2) The Foreseeability Approach holds that an accountant is liable to a third party whose reliance on the accountant’s services was reasonably foreseeable to the accountant. Accordingly, an accountant who prepares an audit report is exposed to a third party for negligent misrepresentation if it is reasonably foreseeable that such a third party might obtain, and rely on, the audit report. This is an expansive view of accountant liability, and even a number of the small group of states that adopted it has retreated from it. New Jersey, for example, passed a more restrictive statute: N.J. Stat. Section 2A: 53A-25 (L. 1995, 2000).
3) The Restatement Approach adopted in over half the states that hold an accountant liable to the third party if he supplies information to a third party that is foreseen as a user of the data for a particular purpose. In other words, for liability to attach, the Plaintiff must be a member of a limited class to whom the accountant intends to supply the information, or to whom the accountant knows the recipient wants to provide it, and who suffers a loss through reliance on the news for substantially the same purposes as the bonafide client. For example, the accountant may be liable to a third-party lender if the client informs the accountant that the audit report would be used to obtain a loan, even if the specific lender remains unidentified or the client names one lender and then borrows from another.
Libel and Slander
Every jurisdiction has statutory definitions for libel and slander,includinge a false and unprivileged publication by writing or orally, which tends to injure a person concerning his office, trade, or business. Included are statements impugning the competence of a dealer to manage the affairs of a dealership. During negotiations, a buyer sometimes becomes frustrated with a seller’s actions and expresses those frustrations by impugning the seller’s ability to operate a dealership. While generally harmless, such statements assume a magnified significance when the purchaser negotiates to acquire a financially troubled dealership. At best, under such circumstances, lenders are apprehensive; at worst, they are neurotic. Invariably, at some point during the negotiations, a purchaser will meet the seller’s lender, and then — more than any other — the prospective purchaser must realize that he can damage the seller and must be disciplined enough to be discreet when commenting upon the seller’s status, our abilities, regardless of how determined a lender’s inquiries may appear.
Interference with a Contract or Prospective Contract
Whether or not a prospective buyer becomes the ultimate purchaser, the prospect has a duty not to intentionally or negligently interfere with a contract or, in many states, a future business advantage of the seller. Again, during the negotiations, there are occasions when a purchaser is tempted to say or do something to frighten a competitive bidder and preserve an exclusive business opportunity. Such actions are proscribed, and when called upon to determine the legitimacy of the purchaser’s efforts, the courts will generally consider the following factors:
(a) the conduct
(b) the motive;
(c) the interests of the other with which the actor’s conduct interferes;
(d) the parts sought to be advanced by the actor:
(e) the social interest in protecting the freedom of action of the actor and the contractual interests of the other;
(f) the proximity or remoteness of the actor’s conduct to the interference, and
(g) the relationship between the parties. See Second Restatement of Torts and Buckaloo v. Johnson.
The increased dollar value of dealerships, combined with the higher level of sophistication of today’s automobile dealer versus the automobile dealer of twenty years ago, has led to more dealers being willing to litigate when damaged. Recently, that litigation has expanded from dealers suing manufacturers to dealers suing dealers. If one had to predict the area in which litigation will grow in the next ten years, one would have to include in that prediction the area surrounding buy-sell negotiations. The courts have held, time and again, that hard bargaining is part of the American system [Sheehan v. Atlantic International Insurance Co.]. However, they have also noted that the notions of fair play and a sense of decency are part of that system. [Rich Whillock, Inc. v. Ashton Development, Inc.]
And while many scholars agree that the most successful negotiations result in solutions where both parties, to one degree or another, win, the courts recognize that each party not only must protect their interests and that of their shareholders [Cosoff v. Rodman (In re W.T. Grant Co.], but that people who do not affirmatively perform that duty [due diligence], have no cause of action against their opponents because the opponents did not complete the task for them. [See Dennison State Bank v. Madeira, 230 Kan. and Macon County Livestock Market, Inc. v. Kentucky State Bank, Inc.]. The negotiation table is a business table at which both parties are expected to be at their best concerning preparation, presentation, and determination. If one party is lacking in one of the categories, it is not the other party’s responsibility to supplement the deficiency. On the contrary, the participants have a duty to themselves, their families, and their shareholders to obtain the best possible terms without unjustly fettering the opposing party’s ability to respond.