EYLER, DEBORAH S., J.
This is an appeal in a "demand refused" shareholder's derivative action. In the Circuit Court for Montgomery County, John Boland and Kevin Boland, the appellants, as shareholders in Boland Trane Associates, Inc. ("BTA"), and Boland Trane Services, Inc. ("BTS") ("the Corporate Appellees" or "the corporations"), sued four members of the corporations' Boards of Directors—Sean Boland, James Boland, Louis Boland, Jr., and Lawrence Cain, Jr. (the "Director Appellees")—and the corporations, alleging, among other things, that the Director Appellees had engaged in self-dealing transactions to the detriment of the corporations.
The corporations' Boards of Directors appointed a Special Litigation Committee ("SLC") to investigate the derivative claims and determine whether to pursue them. After five months of study, the SLC issued a report concluding that the claims had no merit and recommending that the corporations not pursue them and seek to have them dismissed. Ultimately, the circuit court deferred to the SLC's decision, under the business judgment rule, and granted summary judgment in favor of the Director Appellees and the corporations. This appeal followed.
The appellants pose three questions for review, which we have reworded:
For the reasons discussed below, we shall affirm the judgment of the circuit court.
BTA and BTS are related, closely held Maryland Subchapter S corporations with their principal place of business in Montgomery County. They are in the business of selling, distributing, and servicing heating, ventilation, and air conditioning equipment.
Initially, Louis, Sr., and his wife, Maureen, owned all the outstanding stock of the corporations.
Louis, Sr. served as the Chairman of the Boards and President of both corporations until his death on September 7, 2003. Afterwards, in accordance with a "Letter of Instruction" setting forth Louis, Sr.'s succession plan, Sean became Chairman of the Boards and Chief Executive Officer of the corporations, James became President and Chief Operating Officer, Louis, Jr. became Executive Vice President and Chief Marketing Officer, and Cain became Senior Vice President and Chief Financial Officer. At the times relevant to this case, all four served on the Boards of Directors of the corporations together with a fifth director, John Heise.
The BTA and BTS independent franchises with the Trane Company are the only such franchises in the United States to have survived beyond the first generation, perhaps because they were profitable long before Louis, Sr.'s death and have increased in profitability since. The franchise agreements are subject to termination by the Trane Company without cause on 30 days notice. In 2008, the Trane Company was purchased by Ingersoll Rand.
Sean is a practicing lawyer in the District of Columbia. He has served on the boards of the corporations for 28 years and as counsel to the corporations for 31 years. His present service as Chairman of the Boards and Chief Executive Officer of the corporations is without compensation. Louis, Jr., and James have been executives with the corporations for over 30 years and have served on the boards for almost 30 years. The other children of Louis, Sr., and Maureen, including the appellants, have not been involved in the operations of the corporations. Cain has been an executive with the corporations for almost 30 years and a member of the boards for about 25 years. Heise, who was a lawyer, had served as corporate counsel to the corporations since they were founded.
In early 2004, Maureen's financial, tax, and estate advisors recommended that an annuity be created to pay for her care, which up to that time had been paid for by dividends; that the annuity be funded by BTS; and that BTS acquire Maureen's stock in that corporation. The recommendations were implemented and on June 24, 2004, BTS acquired Maureen's stock, which became part of the authorized but unissued shares of the corporation, i.e., treasury stock.
In the first several months of 2005, two sales of treasury stock in the corporations took place that are at the heart of this case. First, in January 2005, James Boland and Sean Boland, Jr. (Sean's son and
Second, on April 1, 2005, James, Louis, Jr., Cain, and Sean, Jr., bought treasury stock in BTA at $508 per share. James purchased 566 shares ($287,528), Louis, Jr., and Cain each purchased 282 shares ($143,256), and Sean, Jr., purchased 70 shares ($35,560). The $508 share price was higher than the most recent appraised value then available ($377/share) but, as it turned out, was lower than a later appraised value of $761/share that had a valuation date of September 20, 2004, but was not received by BTA until August of 2005.
The stock sales were approved retroactively by the Boards of Directors at a special meeting on April 4, 2005. Sean, Louis, Jr., James, and Cain attended the meeting and voted; Heise was not present.
The stock sales first became an issue in litigation in a declaratory judgment action filed by the corporations in July 2006, against the personal representative of Colleen's estate. In that case, the corporations were seeking a court ruling as to the validity of the stock purchase agreement ("SPA") signed by each stockholder in the corporations that provided that, upon the death of the stockholder, the corporation shall redeem the common stock, and the personal representative shall surrender the common stock for redemption, upon payment of its determined price, as calculated by a formula provided in the agreement. The validity of the SPA had become an issue upon Colleen's death.
On March 8, 2007, the appellants sent letters to outside counsel for the corporations making demand upon the Boards of Directors to remedy the alleged self-dealing and stating their intention to file a derivative action on behalf of the corporations against the Appellee Directors if their demands were not satisfied. In particular, the appellants alleged in the letter that the Director Appellees had engaged in self-dealing by "permitt[ing] certain Board Members to purchase stock on favorable terms at below-market values ... [and] authoriz[ing] the `sale' of stock to [Sean, Jr.]." The appellants demanded "that the Boards ... take immediate steps to retain independent counsel for the corporations, answerable to the remaining shareholders directly, to prosecute the Board Members for their breach of duties, investigate other
In response, the Corporate Appellees informed the appellants that their demand letter "would be considered in good faith and disposed of in a manner consistent with the best interests of the corporations" at the board meeting scheduled for May 2007.
Nevertheless, on May 1, 2007, the appellants filed this derivative action, setting forth four counts in their complaint. In Counts I and II, they sought to dissolve the corporations pursuant to Md.Code (2007 Repl.Vol.), section 3-413 of the Corporations & Associations Article ("CA"). They alleged that the Director Appellees were operating BTS and BTA "fraudulently, illegally and oppressively for their own benefit and not for the benefit of all of their shareholders." In Count III, the appellants alleged that the Director Appellees had breached their duties to the minority shareholders. In Count IV, they alleged that the Director Appellees had mismanaged the corporations, engaged in self-dealing, violated the appellants' preemptive rights, and awarded themselves excessive compensation.
That same day, in the declaratory judgment action, the appellants in the case at bar filed a cross-claim that contained the same allegations.
At a special meeting of the Boards of Directors on May 25, 2007, the corporations elected two new, independent directors to function as the SLC to investigate the appellants' demand and recommend whether the corporations should pursue the claims set forth in the derivative action complaint. The new directors were James Cromwell, Esquire, and Charles Wolfe, II, C.P.A. Neither had served on either Board of Directors, nor did either have any business relationship with the corporations, past, present, or expected. The SLC hired Albert Brault, Esquire to serve as its independent counsel. Brault also has had no relationship with the corporations, nor did he expect to. The appellants were told of the formation of the SLC the same day it was established.
On August 2, 2007, upon motion of the Corporate Appellees, the circuit court stayed this action "pending the investigation and issuance of the report from the [SLC]."
On February 1, 2008, the SLC completed its investigation and issued its "Report of the Special Litigation Committee" (the "Report"). The SLC concluded that the Director Appellees had acted within their statutorily defined duties under the business judgment rule with respect to the allegations made by the appellants and recommended that the derivative action be terminated. (We shall discuss certain of the conclusions of the SLC in detail infra.)
On February 11, 2008, the Corporate Appellees filed a motion to dismiss the derivative action under Rule 2-502 based on the SLC's recommendation that the corporations not pursue the litigation. The Director Appellees thereafter filed a motion to dismiss or in the alternative for summary judgment. The appellants filed an opposition to the motions.
On June 12, 2008, the court held a hearing on all pending motions. Counsel for the appellants took the position that the court should hold an evidentiary hearing. Counsel for the Corporate Appellees countered by moving into evidence the Report and its Exhibits and depositions of Cromwell and Wolfe and taking the position that the court had before it all of the information it needed to decide the motion to dismiss under Rule 2-502.
In a Memorandum Opinion entered on September 5, 2008, the circuit court granted summary judgment in part, leaving in place the claim that Cain had engaged in self-dealing in setting excessive compensation for himself, and the claim that the Appellee Directors had engaged in self-dealing with respect to the stock sales.
The court employed a three-part test to determine whether the SLC wrongfully had refused the appellants' demand. First, it assessed whether the members of the SLC had acted independently and in good faith. The court answered in the affirmative, commenting that neither committee member had "ever been employed by, done business with or provided services for either corporation." Second, the court assessed the reasonableness of the SLC's investigation. It found that the SLC, with assistance of independent counsel, had conducted a "comprehensive" 5 month investigation in which it reviewed approximately 1,716 pages of materials and interviewed 11 people with knowledge pertaining to the claims, all of which resulted in a 30 page report with an appendix and 32 exhibits, and that the investigation was reasonable.
Finally, the court considered whether the SLC's findings and conclusions were reasonable. The court stated that "the legal standard to be applied [in answering that question] depends on the allegation[;] each alleged wrong-doing must be looked at individually to determine which standard need be applied for each separate allegation." The court reviewed each categorical finding detailed in the Report, applying the business judgment rule to all claims except the claim regarding Cain's compensation and the claim regarding the stock sales. To those claims, it applied the "entire fairness test," reasoning that it was required to do so by this Court's opinion in Bender v. Schwartz, 172 Md.App. 648, 917 A.2d 142 (2007). The court concluded that it could not find the transactions on which the claims of self-dealing were based "entirely fair," and therefore denied summary judgment on them.
On September 29, 2008, the Corporate Appellees and the Director Appellees filed a joint motion for reconsideration or, in the alternative, for clarification of the September 5, 2008 order. They argued, as they had initially, that under Bender the court was required to apply the business judgment rule in assessing the SLC's recommendation as to all claims in the derivative
On December 12, 2008, the court issued a memorandum opinion and order granting the joint motion for reconsideration and further granting summary judgment in favor of all the appellees on all counts of the derivative complaint. The court concluded that it had erred in applying the "entire fairness" standard in reviewing the SLC's demand refusal respecting the claims of self-dealing by directors; rather, under Bender, it should have applied the business judgment rule in reviewing the SLC's demand refusal as to all of the derivative claims. It also concluded that it had erred in concluding that the SLC had not investigated the claim of self-dealing respecting Cain's compensation; in fact, that claim had been investigated by the SLC. The court concluded that the transactions underlying the self-dealing claims were acceptable under the business judgment rule, and therefore, in deference to the SLC's decision not to pursue the derivative claims, dismissal was appropriate. As noted above, because the court had considered material outside the record in deciding the motion to dismiss, it treated the motion as one for summary judgment, under Rule 2-322(c), and granted it.
We shall include additional facts as necessary for our discussion.
"The business and affairs of a corporation, including the decision to institute litigation, are managed generally under the direction of its board of directors." Shenker v. Laureate Educ., Inc., 411 Md. 317, 342, 983 A.2d 408 (2009) (citing Bender v. Schwartz, 172 Md.App. 648, 665, 917 A.2d 142 (2007)). A shareholder cannot bring suit, in his or her individual capacity, to "redress an injury to the corporation resulting from directorial mismanagement." Id. (citing Mona v. Mona Elec. Group, Inc., 176 Md.App. 672, 697-98, 934 A.2d 450 (2007)). "[A]ny exercise of the corporate power to institute litigation and the control of any litigation to which the corporation becomes a party rests with the directors or, by delegation, the officers they appoint." Werbowsky v. Collomb, 362 Md. 581, 599, 766 A.2d 123 (2001).
In Werbowsky, the Court of Appeals described the nature and purpose of the shareholder's derivative action:
362 Md. at 599-600, 766 A.2d 123 (alteration in original).
Before filing a derivative action, a shareholder "either must make a demand on the corporation's board of directors to pursue the claim against the offending parties or demonstrate to the court that such demand would be futile due to the conflicting interests of the members of the board." Shenker, 411 Md. at 344, 983 A.2d 408 (citations omitted). "Once demand is made, the corporation's board of directors must conduct an investigation into the allegations in the demand and determine whether pursuing the demanded litigation is in the best interests of the corporation." Id. (citations omitted). The board may appoint a demand committee to conduct the investigation. Bender, 172 Md.App. at 666, 917 A.2d 142 (citing Aronson, 473 A.2d at 813). "If the corporation, after an investigation, fails to take the action requested by the shareholder(s) (i.e., to bring the suit) the shareholder(s) may bring a `demand refused' action." Bender, 172 Md.App. at 666, 917 A.2d 142 (citations omitted).
The appellants first contend the circuit court erred because, in ruling on the motion to dismiss, it applied the wrong standard to the conclusions of the SLC. Specifically, they assert that in reviewing the SLC's decision not to pursue the derivative claim alleging self-dealing by the Director Appellees in the sales of stock, the court should not have applied the business judgment rule.
The appellants further assert that the additional scrutiny that comes with the Zapata "independent business judgment" standard was necessary here, in particular, because the corporations are "small, closely
The Corporate Appellees respond that Bender does control and, under its holding, the circuit court correctly applied the business judgment rule to the SLC's conclusion that the corporations should not pursue any of the claims alleged in the derivative action, including the claims related to the stock sales. They state that because the appellants "failed to persuade the circuit court that the SLC's investigation or decision lacked independence or good faith ... [and] failed to demonstrate that the conclusions reached by the [SLC] fell outside the realm of sound business judgment" the circuit court properly deferred to the decision of the SLC, under the business judgment rule. The Director Appellees join in this response and also argue that the appellants fail to recognize the distinction between a derivative action and a direct action, stating, "[the appellants'] arguments about duties allegedly owed to them individually have no relevance to this appeal."
The standard for a circuit court to apply in deciding whether to grant a motion to terminate litigation in a demand refused derivative action is a pure question of law. Therefore, we review the circuit court's decision on the issue de novo. Bender, 172 Md.App. at 664, 917 A.2d 142.
As is obvious, the Zapata case was decided under Delaware law. Unlike the case at bar, it was not a demand refused case. Rather, it was a demand excused case, in which the court held that the alleged breaches of fiduciary duty on the part of all the corporation's directors made any demand on the board futile. After the derivative litigation in Zapata was initiated, the board established an independent litigation review committee to make recommendations as to whether to pursue the derivative claims. When the committee recommended that the corporation not pursue the claims, the corporation moved to dismiss the derivative action. The trial court—Delaware's Chancery Court— granted the motion to dismiss, applying the deferential business judgment rule. On review, the Delaware Supreme Court reversed, holding that the Chancery Court should have decided the motion to dismiss in a two-step process, by applying the business judgment rule and then exercising its own independent business judgment.
We quote at length the reasoning of the Zapata court:
430 A.2d at 786-88 (footnotes omitted) (some citations omitted) (emphasis added).
The court concluded that, to balance the competing interests of the derivative plaintiffs and the corporation, the Chancery Court, in ruling on a motion to dismiss, first should apply the business judgment rule and then should exercise its independent judgment to decide whether dismissal of the derivative claims based upon the demand committee's recommendation would produce a "result [that] does not appear to satisfy [the business judgment rule's] spirit" or the "premature[] terminat[ion of] a stockholder grievance deserving of further consideration in the corporation's interest." Id. at 789. The Zapata court also held that, with respect to the first, business judgment, prong of the two-step process, the burden was on the corporation defendants, not the derivative plaintiffs, to show that the litigation committee had acted independently and in good faith, that its investigation had been reasonable, and that its conclusions were reasonable. Id. at 788.
In the Bender case, unlike in Zapata, but as in the case at bar, a demand was made and refused, and the assertion was that the refusal was wrongful. Two corporations were involved in Bender; the board of each established a demand committee that investigated the plaintiffs' derivative claims. The committees each recommended that the claims not be pursued,
On appeal, we explained that, "[i]n determining whether a demand was wrongly refused, a court reviews the board's investigation under the business judgment rule." Bender, 172 Md.App. at 666, 917 A.2d 142. We pointed out that the business judgment rule is codified in Maryland. It states that "[a]n act of a director of a corporation is presumed to satisfy the standards of subsection (a) of this section." CA § 2-405.1(e). See Mona, 176 Md.App. at 696, 934 A.2d 450 (commenting that "the business judgment rule is a presumption that corporate directors acted in accordance with the standard of care imposed upon them") (citations and quotations omitted). Subsection (a) states, "[a] director shall perform his duties as a director, including his duties as a member of a committee of the board on which he serves: (1) In good faith; (2) In a manner he reasonably believes to be in the best interests of the corporation; and (3) With the care that an ordinarily prudent person in a like position would use under similar circumstances." CA § 2-405.1(a).
We further explained in Bender that when the business judgment rule applies to a demand committee's decision not to pursue derivative litigation, the circuit court, in ruling on a motion to dismiss, must defer "to the decision of the board or committee not to pursue litigation unless the stockholders can show either that the board or committee's investigation or decision was not conducted independently and in good faith, or that it was not within the realm of sound business judgment." Bender, 172 Md.App. at 666, 917 A.2d 142 (citations omitted). See also Werbowsky, 362 Md. at 619, 766 A.2d 123 (stating, "[i]f a demand is made and refused, that decision, and the basis for it, can be viewed by a court under the business judgment rule standard"). Stated another way, deference must be granted the demand committee's investigation if "any rational business person could have reached that result, proceeding independently and in good faith with the best interests of the corporation in mind." Id. at 667, 917 A.2d 142 (citation omitted). See also James J. Hanks, Maryland Corporation Law § 7.21[c], p. 276.9 (2009 Supp.) (hereinafter "Hanks") (stating, "[t]he directors' action in considering whether to pursue a possible claim is, like any other action, governed by the standard set forth in [the statutory business judgment rule]. If the demand is properly reviewed and refused, then that is the end of the matter and the stockholder will not be permitted to proceed.") (footnote omitted).
We also explained in Bender that the party challenging the demand committee's decision not to pursue the derivative claims bears the burden "`to establish facts rebutting the presumption' that the directors acted reasonably and in the best interests of the corporation." Bender, 172 Md.App. at 667, 917 A.2d 142 (quoting Aronson, 473 A.2d at 812).
Our ultimate holding in Bender concerned the proper application vel non of the "entire fairness test," an issue we shall discuss infra, as it is pertinent to the appellants' second question presented. It was implicit in our express approval in Bender of the business judgment rule as the generally applicable standard for assessing a demand committee's recommendations in a wrongful refusal case, however, that we do not require the circuit court
The Zapata independent business judgment standard calls upon the trial court to review the demand committee's conclusions not only for fairness of process, but also for substance so that, even when the requirements of the business judgment rule—independence and good faith of the demand committee, reasonableness of the committee's investigation, and reasonableness of the committee's conclusions—have been satisfied, the trial court may substitute its own judgment for that of the corporation. 430 A.2d at 789 ("This means, of course, that instances could arise where a committee can establish its independence and sound bases for its good faith decisions and still have the corporation's motion denied."). Thus, under the Zapata test, the court's business judgment, not the corporation's, prevails, regardless of how fair and reasonable the corporation's investigation and decision have been. In exercising its final business judgment, the court "should, when appropriate, give special consideration to matters of law and public policy in addition to the corporation's best interests." Zapata, 430 A.2d at 789.
When the business judgment rule, and not the two-step enhanced process adopted in Zapata, prevails, the reviewing court will not substitute its judgment for that of the corporation's directors on a matter of corporate management, e.g., a decision whether the corporation should pursue litigation. See Auerbach v. Bennett, 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994, 996 (1979) (stating, "the substantive aspects of a decision to terminate a shareholders' derivative action against defendant corporate directors made by a committee of disinterested directors appointed by the corporation's board of directors are beyond judicial inquiry under the business judgment doctrine, the court may inquire as to the disinterested independence of the members of that committee and as to the appropriateness and sufficiency of the investigative procedures chosen and pursued by the committee"). In his article, "The Business Judgment Rule as Abstention Doctrine," Stephen M. Bainbridge describes the difference in approach between the traditional business judgment rule and the enhanced independent business judgment rule followed in Delaware as
In Maryland and elsewhere in this country Delaware corporations law is properly accorded respect. Werbowsky, 362 Md. at 618, 766 A.2d 123. There are two distinctions between Maryland corporations law and Delaware corporations law, however, that militate strongly against the application of the Zapata two-step enhanced version of the business judgment rule in Maryland.
First, as mentioned above, Maryland's business judgment rule, being statutory, is a product of legislation and, absent ambiguity or constitutional infirmity, is not subject to interpretation or revision by judicial gloss. In contrast, Delaware's business judgment rule remains a creature of common law, liable to judicial alteration. By its plain language, our statutory business judgment rule applies to decisions by a board of directors or its committees, which would include a special litigation committee such as the SLC in this case. See CA § 2-405.1(a) (stating that "[a] director shall perform his duties as a director, including his duties as a member of a committee of the board on which he serves ... (1) In good faith; (2) In a manner he reasonably believes to be in the best interests of the corporation; and (3)With the care that an ordinarily prudent person in a like position would use under similar circumstances.") (emphasis added). See also CA § 2-411(a) ("The board of directors of a corporation may: (1) Appoint from among its members ... committees composed of one or more directors; and (2) Delegate to these committees any of the powers of the board of directors [with exceptions not here applicable]....").
Likewise, by its plain language, the Maryland statutory business judgment rule places the burden on the derivative plaintiff to prove that a decision by a board of directors or by a committee of the board was not made independently and in good faith, was not investigated reasonably, or was not based upon reasonable conclusions. This is directly contrary to the assignment of the burden of proof in Zapata.
Second, as noted, Zapata was a demand excused case, not a demand refused case. The Delaware Supreme Court emphasized the nature of the case repeatedly, pointing out that the derivative suit in Zapata was "properly initiated" by the plaintiff shareholders. The requirement of a demand most frequently is excused when the board members are so personally interested in the subject of the litigation or so bound to a position about it that demand would be futile. In such a situation, the shareholder plaintiff retains control over the litigation; thus the Zapata court's observation about the suit having been properly brought. Zapata, 430 A.2d at 785.
By contrast, when a shareholder makes a demand, as was done in the case at bar, and in Bender, the shareholder has "`waived any claim [he] might otherwise have had that the board cannot independently act on the demand.'" Bender, 172 Md.App. at 666, 917 A.2d 142 (quoting Scattered Corp. v. Chicago Stock Exchange, Inc., 701 A.2d 70, 74 (Del.1997)) (emphasis in Bender). In that instance, control of the litigation is with the corporation, as usual, and, also as usual, the corporation's decision, through the appointed committee, whether to pursue the derivative claims, is protected by the business judgment rule.
Accordingly, in a Maryland demand refused derivative action, the business judgment rule serves as one of abstention, by which the courts will defer to the decision of a special litigation committee on whether to pursue the claims at issue, so long as the committee acted independently and in good faith, conducted a reasonable investigation, and reached reasonable conclusions. The circuit court therefore correctly applied the business judgment rule in deciding whether the
The appellants' arguments pertaining to the duties owed by majority stockholders to minority stockholders are misplaced. The derivative suit is a means by which the shareholders can enforce the director's duties owed to the corporation, not the duties that the directors/majority shareholders owe to other shareholders. See Shenker, 411 Md. at 342, 983 A.2d 408 (stating, "the derivative form of action permits an individual shareholder or group of shareholders to bring suit to enforce a corporate cause of action against officers, directors, and third parties where those in control of the company refuse to assert a claim belonging to it") (quotations and citations omitted); Paskowitz v. Wohlstadter, 151 Md.App. 1, 9, 822 A.2d 1272 (2003). A derivative action is not the proper vehicle to seek redress for an alleged breach of a majority stockholder's fiduciary duties to a minority stockholder. See Bender, 172 Md.App. at 674, 917 A.2d 142 (stating, "[t]he claim regarding any harm to [shareholder's children] is personal to them, and not a cause of action that [the corporation] could pursue as a corporation; thus it was not a matter appropriate for a stockholder derivative action. The Demand Committee was not obligated to investigate any harm personal to appellants.").
Finally, there likewise is no merit in the argument that, because the corporations are small, closely held entities, the business judgment rule should not apply, and the circuit court should exercise its independent business judgment in deciding whether to dismiss the derivative action. CA section 2-405.1 equally applies to the corporations in this case as it does to larger entities.
The appellants next contend the circuit court erred in deferring to the SLC's decision not to pursue the derivative claims because the SLC's investigation and conclusions were not reasonable. Specifically, they argue that, because the derivative action complaint alleged what they characterize as self-dealing transactions by the Director Appellees, the SLC should have
To put this contention in perspective, we shall go into some detail about the conclusions the SLC reached about the stock sales and its investigation as related to those sales. As noted above, the SLC summarized the derivative claims of self-dealing as involving allegations of excessive compensation for the Director Appellees and other board members; acquisition of Maureen's stock and issuance of the stock to the Director Appellees and an employee (Sean, Jr.); and violation of preemptive shareholder rights.
With respect to compensation, the SLC reviewed the history of the corporations and their management and summarized for each of the Director Appellees his education, training, and experience as relevant to the business of the corporations. James holds bachelors and masters degrees in business, was the first non-engineer to complete the Trane sales and training program, worked in sales and then parts and then, in 1986, took over all of the corporations' operations. Louis, Jr. holds a bachelor's degree in business administration, attended the Trane sales and management dealer program, completed "numerous graduate sales and marketing courses," and within the corporations has worked as an outside salesman, account executive, manager of the existing sales group, vice president, and senior vice president. Cain is a CPA who began with the companies virtually at their inception, became chief financial officer in 1985, and is the manager to whom two-thirds of the companies' associates report.
As noted already, Sean is a lawyer. Sean, Jr. holds a bachelor's degree from Duke University. At the time of the SLC's investigation, Sean, Jr., had been employed full-time by the corporations for 5 years. (He had started working for the companies when he was 13.) During his full-time employment, he had worked performing filing, shipping oil samples, and in accounting and sales. He had attended the Trane graduate engineering program and was the second non-engineer to complete it. His present position was as an Account Executive, and he was in the process of obtaining his MBA.
The SLC studied the salaries paid to the directors (except Sean, who receives no compensation) for the years 2003 (when Louis, Sr., died) through 2007. For James (President and Chief Operating Officer), total salary and bonus was $450,000 in 2004, $615,000 in 2005, $635,000 in 2006, and not set for 2007 (although his regular salary for that year was $353,500). Louis, Jr.'s total compensation was $300,000 in 2004, $335,000 in 2005, $345,000 in 2006, and not set for 2007 (although his regular salary for that year was $327,700). Cain's total compensation was $300,000 in 2004,
In concluding that the salaries of the Director Appellees were reasonable, the SLC stated:
Report, at 16 (footnote omitted).
The shareholders in BTA as of the time of the SLC's investigation were the Louis J. Boland Trust B-1 (600 shares), Colleen (deceased), Eileen, John, Kevin, Michael, and Sean (200 shares each), James (766 shares), Louis, Jr., and Maureen (482 shares each), Sean, Jr. (70 shares), and Cain (282 shares). The shareholders in BTS at that time were Colleen (deceased), Eileen, John, Kevin, Michael, Sean, and Cain (300,300 shares each), James (902,400 shares), Louis, Jr. (751,250 shares), Sean, Jr. (75,075 shares), and Judith Guiliano (74,320 shares).
The SLC further traced the history leading up to the redemption of Maureen's stock in connection with her estate plan, noting that "the purpose of the acquisition was to fulfill the Instruction[s]" of Louis, Sr., that Maureen's needs be taken care of. The SLC concluded that the annuity plan established for Maureen
The SLC further concluded that the price paid for Maureen's stock was fairly set by the Board of Directors, as it relied upon an independent appraisal. (The SLC noted as well that, if there were any inadequacy in the price paid for that stock, it would be her claim to make, not that of the shareholders.)
The SLC stated that "[t]he sales of treasury stock to Louis Boland, Jr., Lawrence Cain, James Boland, and Sean Boland, Jr., after the acquisition of Maureen Boland's
In assessing the stock sales, the SLC applied a business purpose, i.e., business judgment rule, test. It quoted from Mountain Manor Realty, Inc. v. Buccheri, 55 Md.App. 185, 198, 461 A.2d 45 (1983), that "`an issue of ... stock that has the collateral effect of enhancing the power of incumbent management is not invalid if the transaction has as its principal purpose some proper corporate goal.'" Report at 21. The SLC concluded with respect to the stock sales that "[t]he enhancement of control is a positive benefit for the corporations" and the stock sales were "well within the business judgment rule and done in good faith for the benefit of the corporation."
Finally, the SLC concluded that there was no merit to the appellants' claim that the stock sales had violated their preemptive rights as shareholders, i.e., the rights of minority shareholders in a corporation not to have their ownership interests "diluted by the issuance of stock to others." Report at 23. From a comparison of the percentage stock ownerships before and after the stock sales, the SLC found that "[t]he change in ownership percentage is minimal at best and certainly has no material effect on the Plaintiffs' minority status." Id. (John and Kevin each had stock ownership in BTA of 5.6% at the end of
As we already have observed, the SLC's investigation took five months. There never has been a serious assertion by the appellants of lack of independence or good faith on the part of Cromwell or Wolfe or their counsel, Brault.
We return to the appellants' contention that the SLC should have applied the "entire fairness test," instead of the business judgment rule, in assessing whether the stock sales were reasonable; and therefore the circuit court erred in deferring to the decision of the SLC under the business judgment rule. In Bender, we explained that the "entire fairness" rule is a "judicial review standard" that inquires into "fair process and fair price." Bender, 172 Md. App. at 670, 917 A.2d 142. When used, "if at all," it "is employed to evaluate transactions when directors are `on both sides of a transaction.'" Id. at 670, 917 A.2d 142 (quoting Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del.1983)). Like the independent business judgment test of Zapata, the entire fairness test is a product of Delaware law. See generally Weinberger, 457 A.2d 701. Contrary to the argument advanced by the appellants, the issue in Bender was not whether the demand committees in that case erred by not applying an "entire fairness" test in investigating the transactions at issue. The issue was whether the circuit court, in assessing the demand committees' investigations and conclusions for reasonableness, erred by applying the business judgment rule to each transaction instead of applying an entire fairness test.
As the Bender Court explained, "Demand [c]ommittees, as disinterested persons, are required to conduct reasonable investigations of the claims asserted in a demand letter and, in making their decisions, exercise reasonable business judgment." 172 Md.App. at 671, 917 A.2d 142. Demand committees are not required to apply judicial standards of review, as they do not function as judicial panels.
We held in Bender that the circuit court, in reviewing the decisions of the two corporations' demand committees for purposes of deciding whether to dismiss the derivative action, was not required to apply the entire fairness test. We explained that the entire fairness test will apply to self-dealing transactions that affect the ownership status of a minority shareholder—such as a transaction eliminating or changing a minority shareholder's ownership interest, a self-dealing merger transaction, or a cash-out merger between parent and subsidiary that eliminated minority shareholders. The one example in Maryland case law that we cited—and indeed the only one that exists— was Lerner v. Lerner Corp., 132 Md.App. 32, 750 A.2d 709 (2000). That case illustrates the type of situation in which the entire fairness test appropriately is applied on judicial review.
Lerner involved a reverse stock split in a closely held Maryland corporation in which the two shareholders were brothers who had been at odds, and in litigation, for years. In the early 1980's, the acrimony between the brothers became so intense that the majority shareholder tried to freeze out the minority shareholder. Litigation ensued, which was settled by an agreement in which the minority shareholder promised not be to involved in the activities of the business. Disputes over the implementation of the agreement spawned additional litigation. The assets of the business were being drained by the funds spent in litigation between the brothers. In 1998, the majority shareholder owned 89.9% of the stock in the company. At a special shareholders meeting, the corporation's charter was amended "to reclassify and convert each of the [c]orporation's common shares to 1/68th of a share, a `reverse stock split,' which would have the effect of reducing [the minority shareholder's] interest to less than one share" and, in lieu of issuing a fractional share, to convert the minority shareholder's interest to cash. 132 Md.App. at 38, 750 A.2d 709. The end result was to eliminate the minority shareholder's interest.
In a declaratory judgment action challenging the reverse stock split, the minority shareholder argued, among other things, that the transaction was illegal and amounted to a breach of the majority shareholder's fiduciary duty to him, as the minority shareholder. The minority shareholder asserted that the proper standard for judicial review of the transaction was the "entire fairness" test. The majority shareholder argued that the proper standard of review was "business purpose."
We held that the transaction was legal and that "the fairness rule is the appropriate test under these circumstances, i.e., a reverse stock split in a closely held corporation with the effect of eliminating a minority stockholder, because it permits intervention on the facts of any given case when intervention is justified." 132 Md. App. at 57, 750 A.2d 709. Quoting extensively from Hanks, section 7.20, 264-66 (Supp. 1996), we adopted the view that, whether the transaction is in the form of a merger or a reverse stock split, because the majority is freezing out the minority, the concern is not whether the transaction has a business purpose but whether it is
Unlike Lerner, Bender did not involve direct claims for breach of fiduciary duties between majority and minority stockholders or a freeze-out transaction that eliminated the minority. It was a derivative action involving closely held corporations, in which plaintiff stockholders had alleged the corporations had been harmed by certain actions of their directors, including the directors' approval of particular fees and loans as part of their own compensation, and in which demand committees had investigated the transactions in question and recommended against the corporations' pursuing the derivative claims. We held that the circuit court properly had applied the business judgment rule, and not the entire fairness rule, in deciding whether the demand committees reasonably had investigated the derivative claims and recommended against pursuing them.
In the case at bar, the appellants point out that the circuit court in Bender reviewed the recommendations of the demand committees respecting three transactions for entire fairness and argue, from that fact, that the transactions must have been self-dealing and that Bender therefore stands for the proposition that, whenever a demand committee is investigating a "self-dealing" transaction, the entire fairness test must be applied to assess its work. We disagree. One of the corporations in Bender was a Delaware corporation, and the entire fairness test would have been relevant to some of the transactions involving that corporation because the entire fairness test is a creature of Delaware law.
We conclude that the case at bar, like Bender, is one in which the standard of review for the circuit court, in assessing the reasonableness of the SLC's investigation and recommendations concerning the derivative claims, and in particular the claims that the stock sales were self-dealing transactions that in some way harmed the corporations, properly was the business judgment rule. These stock sales do not implicate the minority rights of shareholders the way freeze-out transactions of the kind dealt with in Lerner do. Moreover, as the SLC explained, the stock sales were a one-time benefit to the Director Appellees and to Sean, Jr. They were made available to the directors most intimately involved in the running of the corporations and to Sean, Jr., who was being groomed to play the lead role in the Boland family's effort to have their franchise extend to three generations. The continuation of the franchise was in the best interests of all the stockholders, including the appellants and other stockholders who did not perform any services for the corporations, as they all received substantial dividend income.
To the extent an Appellee Director had a personal interest in the outcome of the stock sale votes, each abstained. Moreover, enhancement of control, which the SLC found to be the primary purpose behind the stock sales, was particularly important given that the Trane Company recently had been sold to Ingersoll Rand and the franchise agreement on which the corporations depended remained terminable for no reason at all upon 30 days notice.
There are several non-exclusive factors courts look to in determining whether a demand committee conducted a reasonable investigation into a derivative claim:
Scalisi, 501 F.Supp.2d at 363 (citing Bender, 172 Md.App. at 672-73, 917 A.2d 142). These factors all were satisfied in the case at bar. As noted, the SLC hired independent counsel to aid in the investigation and report writing. It produced a 30-page report with 33 exhibits. Within the Report, it discussed the process used in its investigation and addressed each of the issues raised by the appellants in their demand letter and derivative complaint. The SLC interviewed all the relevant witnesses and reviewed hundreds of pages of documents including the Boards of Directors' meeting minutes, court pleadings, stock purchase agreements, personal and corporate correspondence, audited corporate financial statements, certified corporate appraisals, and stock redemption documents. The investigation lasted five months and, according to Cromwell's deposition testimony, he spent approximately 150 hours participating in the SLC's work.
The appellants assert that the SLC's investigation of the stock transactions was unreasonable because:
The appellants also challenge the investigation of stock sale to Sean, Jr., stating that the SLC "did not state what, if any, binding `commitment' [Sean, Jr.] made to the corporation[s] in consideration [for his stock purchase]." They state "[i]f one removes the fact that [Sean, Jr.] is the Chairman's son from the analysis, the lack of business justification is apparent."
We see no merit in these assertions. The Report discloses, contrary to what the appellants maintain, that from the interviews the SLC conducted and the documents it reviewed, it was able to determine that the stock sales "provide[d] management with a similar percentage of ownership as exists with others in the industry" and, by allowing the recipients to purchase
As noted, the appellants complain that the SLC's analysis of the reasonableness of the Director Appellees' and Sean, Jr.'s compensation was deficient in that it did not include the dividends they will be paid from the stock that was sold to them. The SLC's Report addresses the issues of compensation and stock sales separately, at the same time acknowledging that stock options, and in this case actual stock sales, are a form of compensation. To the extent that the stock sales are a type of compensation, we note that "`a board's decision on executive compensation is entitled to great deference. It is the essence of business judgment for a board to determine if "a particular individual warrant[s] large amounts of money."'" Bender, 172 Md. App. at 681-82, 917 A.2d 142 (quoting Brehm v. Eisner, 746 A.2d 244, 263 (Del. 2000) (in turn quoting Grimes v. Donald, 673 A.2d 1207, 1215 (Del.1996))).
In any event, whether the SLC included the dividends that the Director Appellees and Sean, Jr., will receive in their compensation when assessing it is not of consequence. The appellants have not challenged any of the compensation assessments made by the SLC; below, they only challenged Cain's compensation, and they have not pursued that challenge on appeal. And it always has been clear that, just as the appellants receive dividends from their stock holdings, the Director Appellees and Sean, Jr., will receive dividends from their stock holdings. Indeed, the value of the stock, especially the stock in BTS, is in large part a function of the dividends it produces, not only for the individual appellees but also for the appellants and all the stockholders. The fact that the stock produces dividends does not undermine the reasonableness of the SLC's conclusion that the stock sales were a benefit conferred for the purpose of binding management at a time when, given the changes in the Trane Company, strong management of the Boland franchise was critical.
In regard to the appellants' complaint that the SLC did not articulate an objective standard to apply in assessing the appropriate level of stock ownership for the Director Appellees, we disagree that that was necessary. The SLC compared the level of stock ownership to that of similarly situated companies, and in part on that basis, concluded that the stock sales to the Director Appellees served a reasonable corporate goal. It was not necessary for the SLC to craft a formula. It had to determine only whether "any rational business person" could have reached the same decision as the Director Appellees. Bender, 172 Md.App. at 667, 917 A.2d 142.
Finally, the appellants also complain that they did not learn, until Louis, Jr., made an offhand reference in June 2005, of the April 4, 2005 decision by the boards approving the stock sales, and that this "hiding" of important information from them was not taken into account by the SLC in its investigation. The minutes of a shareholders' meeting of BTA, held on April 18, 2005, reveal, however, that Sean, Jr., was present and that "[c]opies of a listing of all shareholders and their interests" were "made available for the shareholders'
The SLC acted properly in assessing the transactions at issue for business purpose, i.e., in evaluating whether, in bringing the transactions about, the Director Appellees were acting for the benefit of the corporations, and not merely to benefit themselves. The circuit court then properly reviewed the SLC's work under the business judgment rule. We agree with the circuit court that the appellants failed to rebut the presumption that the SLC's investigation into the derivative claims was reasonable and that its conclusions were within the realm of sound business judgment.
Finally, as to the stock sale transactions, the appellants contend the circuit court erred by not holding an evidentiary hearing in which they could introduce evidence; by not disposing of this case under Rule 2-502, instead of Rule 2-501; and by granting summary judgment sua sponte and when there were "substantial disputes of material fact." See Rule 2-501(f) (stating, "[t]he court shall enter judgment in favor of or against the moving party if the motion [for summary judgment] and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law"). The appellants also complain that the court erred in granting summary judgment on their claim of "oppression," which pertained to the SPAs.
As mentioned above, after the SLC released its Report, the Corporate Appellees filed a motion to dismiss pursuant to Rule 2-502. Under that rule, entitled "Separation of questions for decision by the court," a court may rule on a question that is within its sole province to decide in the manner it deems expedient, including by accepting stipulated facts and finding facts after receiving evidence. The motion and the appellants' opposition to it were accompanied by numerous exhibits. The Director Appellees filed a motion to dismiss or in the alternative for summary judgment.
At the outset of the hearing on pending motions on June 12, 2008, counsel for the appellants stated that it was his position that he was entitled to an evidentiary hearing. The judge replied that he wanted to hear argument of counsel first. Counsel for the appellants said he thought he would be able to convince the court to deny the motion to dismiss by argument, but that the court could not "go the other way without an evidentiary hearing." The arguments then proceeded.
In the course of his argument, counsel for the Corporate Appellees sought to move into evidence the binders of documents that were given to the SLC for its review; the Report; and the depositions of Cromwell and Wolfe. These items all were accepted into evidence without objection. The arguments continued to conclusion without counsel for the appellants offering any evidence, asking to offer evidence, or proffering what evidence would be offered if the court would so allow. The court did not rule at the conclusion of the hearing. Thus, the outcome of the hearing was not known to the appellants at the hearing's conclusion, but no steps were taken by their counsel to put evidence before the court. In that circumstance, the appellants cannot now complain that the court erred by refusing to hold a hearing in which they could introduce evidence. There is nothing in this record to support the notion that they would not have been permitted to offer evidence if they had taken steps to do so. Accordingly, this argument has been waived.
As this Court explained in Bender, a Rule 2-502 hearing functionally is a bench trial. 172 Md.App. at 663-64, 917 A.2d 142. When asked to dismiss claims by deciding an issue within its purview to decide, the court not only rules on the law but sits as a trier of fact. Obviously, if there are no material facts in dispute, the court will rule on the undisputed material facts, which is the same as ruling on a motion for summary judgment. That is what happened here. Moreover, the court pointed out that the Corporate Appellees' motion was one to dismiss, and, on a typical motion to dismiss under Rule 2-322(c), when materials are submitted outside the four corners of the complaint, the motion is to be treated as one for summary judgment. That too is what happened here. For both of these reasons, the court properly disposed of the derivative matter by way of summary judgment.
Nor do we find merit in the appellants' argument that "[t]he corporations never moved for summary judgment on the derivative complaint [and therefore] [i]t was error for the circuit court to grant summary judgment, effectively sua sponte and without the appellants ever having been advised and given an opportunity to respond and defend against the consideration." To be sure, the Corporate Appellees did not move for summary judgment and, generally, courts are prohibited from granting summary judgment sua sponte. In Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 147, 642 A.2d 219 (1994), the Court of Appeals explained that courts may grant summary judgment in favor of a non-moving party if the opposing party
Here, however, the Director Appellees in fact filed a motion to dismiss, or in the alternative, for summary judgment on the derivative claims. Given the nominal defendant status of the Corporate Appellees, summary judgment in favor of the Director Appellees and against the appellants effectively would be summary judgment in favor of the Corporate Appellees. Granting summary judgment in favor of the Corporate Appellees did not run afoul of Md. Rule 2-501. See McNees v. City of Mountain Home, 993 F.2d 1359, 1361 (8th Cir.1993) (stating, "[i]n those instances where the party against whom judgment was entered is provided sufficient notice and opportunity to contest summary judgment and where the liability of the party who did not file a motion is merely derivative, such that no genuine issues of material fact exist, a sua sponte grant of summary judgment is permissible").
The record does not support the appellants' assertion that they were not "given an opportunity to respond and defend against the consideration." On the contrary, they had several opportunities to do so, including in responding to the Director Appellees' motion to dismiss or in the alternative for summary judgment; and they took advantage of these opportunities, as evidenced by their opposition papers and the oral argument their counsel presented at the June 12, 2008 hearing. Thus, both because the Director Appellees moved for summary judgment and because the Corporate Appellees' motion to dismiss properly was treated as a motion for summary judgment, the court did not sua sponte grant summary judgment in favor of the appellees.
The appellants' last argument is that "the court's dismissal of the appellants' oppression claim was in error" because the court "improperly resolved a disputed fact."
(Emphasis added.)
The appellants argue that by stating that "there is insufficient evidence to support such allegations" the circuit court improperly resolved a disputed fact, and granted summary judgment on that basis. Read in context, however, the circuit court's finding was that the SLC's decision not to pursue an oppression claim was reasonable because, as the SLC explained in the Report, there was insufficient evidence to support the allegation.
http://courts.delaware.gov/Courts/court%20of% 20chancery/?index.htm (last visited July 28, 2010). The Chancery Court is a general equity court, not a court of law, and does not hear all equity cases, in that family law cases in Delaware come before a separate family law court. Thus, the Chancery Court's docket is substantially comprised of business dispute cases. The court, in essence, is a specialty body that concentrates on business law disputes. It routinely publishes opinions on business law issues.
By contrast, in Maryland, the circuit courts are of general jurisdiction, law and equity, civil and criminal. They are general, not specialty, courts. Within our circuit courts, there now is a business and technology case management program, established in 2003 by Rule 16-205, in which a small number of specially trained judges may be assigned cases "present[ing] commercial or technological issues of such a complex or novel nature that specialized treatment is likely to improve the administration of justice." Md. Rule 16-205(c). The business and technology judges publish some of their opinions, to create a database that is useful to other judges, lawyers, and litigants. See generally http://www. courts.us./businesstech/index.html. Indeed, in Costa Brava Partnership III, L.P. v. Telos Corp., Case No. 24-C-05-009296 in the Circuit Court for Baltimore City, Judge Matricciani, now a member of this Court, published an opinion ruling, for reasons we endorse, that the Zapata standard does not apply in a demand refused derivative action. Even with the business and technology case management program, however, the Maryland circuit courts do not have the broad expertise in corporation law that the Delaware Chancery Court has developed through many years of specialization.
