Shareholder Disputes

Seventh Circuit Gives a Wide Berth to Business Judgment Rule Following the Deference Required by the Indiana Legistlature in a Shareholder Oppression Case

June 9, 2019 | Peter S. Lubin and Patrick Austermuehle

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:

Lubin Austermuehle’s Chicago Shareholder Oppression Attorneys and Chicago Defamation Attorneys Honored by Super Lawyers

June 8, 2019 | Peter S. Lubin and Patrick Austermuehle

Super 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.

Sears Former CEO Allegedly Profited Off Bankruptcy While the Company Sank into Debt — Chicago Shareholder, Partner and LLC Dispute Lawyers Near Oak Brook and Naperville

May 18, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

Lawyer’s Motives Questioned After Judge’s Recusal — Chicago Business Litigation Lawyers Near Oak Brook — Chicago Shareholder Oppression Lawyers Near Oak Brook and Naperville

May 5, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

Munroe-Diamond v. Munroe — Affirmative Defense Properly Asserted Improper Purpose to Deny Directors Inspection of Corporte Records– Chicago Minority Shareholder Opression Lawyers Near Naperville and Schaumburg

February 13, 2019 | Peter S. Lubin and Patrick Austermuehle

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 ›

When Founders Sue a Chain that they Created — Business Owner Dispute Lawyers Near Chicago and Wheaton

October 4, 2018 | Peter S. Lubin and Patrick Austermuehle

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 ›

Current Facebook Status: Shareholders Speak Up — Chicago Shareholder Rights and Shareholder Freeze Out Lawyers

July 31, 2018 | Peter S. Lubin and Patrick Austermuehle

In one of our previous blog posts, we looked into what Facebook was doing with the data of millions of users and profiting from it. The CEO of Facebook, Mark Zuckerburg, was subject to scrutiny in his testimony and angered both users and shareholders. Since the Cambridge Analytica scandal, Facebook has also been accused of meddling in the elections by having a Mercer backed political data firm collect information as well.

Zuckerberg later confessed that he made mistakes and that did not know how to handle a large company. This has led to the undermining of public confidence in him, including that of the shareholders. So now a possibility of removal from a chairman position and being replaced as an independent executive is talk that is being touted. A dual structure system of shares allows for the usurpation of power. Too much power in his hands is now deemed unacceptable. Activists are also calling for his removal. The Investment company has gone so far as to file a proposal to oust him. The main changes that are most likely include the creation of a role division between a chairman and CEO. That leads to a greater check on the power that he holds which is more than 60 percent of a voting share. A dual role weakens management of the board and is what currently is in place. This is one of the reasons cited as being a contributing factor in the mishandling of the Facebook controversies.

Separating a chair and a CEO also reduces conflict. Shareholders are unable to check the founder’s power because he owns 60 percent of the company and occupies the two highest positions. As it stands, Facebook stock is of two types and the ones that Zuckerberg owns have 10 times a greater voting power. “When you open yourself up to more opinions, more independent voices, you’re more likely to make better decisions. It’s more likely that someone with independent governance would have spoken up about some of these things,” Illinois State Treasurer Michael Frerichs, who has $35 million invested in Facebook, told Business Insider. Continue reading ›

Uber CEO Down But Not Out — Chicago Shareholder Dispute Lawyers Near Naperville

August 15, 2017 | Peter S. Lubin and Patrick Austermuehle

Despite stepping down as CEO of Uber, the ride-sharing start-up he founded, Trevor Kalanick’s troubles are far from over. On top of allegations that the company mistreats its drivers, discriminates against and sexually harasses women at work, and stole trade secrets from another ride-sharing service, Kalanick is now being sued by Benchmark, one of Uber’s investors.

In 2016, Kalanick proposed an amendment to Uber’s charter, giving him the right to nominate three new directors to the start-up’s eight-member board. At the time, Kalanick got Benchmark to approve the amendment, but Benchmark is now saying Kalanick deliberately misrepresented key information regarding the company and the amendment, and is now asking for the amendment to be voided.

Six years ago, Benchmark invested in what was then a tiny ride-sharing start-up, called Uber. It bought a 20% stake in the company, which has since grown to be worth billions of dollars. Kalanick and Gurley (and, by extension, Uber and Benchmark) remained close for years until Kalanick and Uber started getting hit by one scandal after another. At that point, Gurley began to put some distance between himself and Kalanick, finally joining other investors to push Kalanick out as CEO of the company.

Although he was forced to give up his seat on the board when he stepped down as CEO, Kalanick immediately reappointed himself to one of the board seats he controls as a result of the amendment he had added last year, and he still holds a 10% stake in the company. It’s not as much as Benchmark’s 13% stake, but it’s enough to make life at Uber difficult for anyone who opposes Kalanick – something he has allegedly set out to do. Continue reading ›

Companies Add Fee Shifting Provisions to By-Laws to the Detriment of Shareholder Rights

December 20, 2014 | Peter S. Lubin and Patrick Austermuehle

Shareholders are not philanthropists. They are investors who expect to see a return on the money they put into a company. Because companies have a vested interest in attracting shareholders, laws have been put in place to make sure they act fairly and honestly when communicating with their shareholders about the state of the company. This generally means requiring companies to reveal the state of their finances, market value, any legal issues they may be having that could affect their profits, etc.

Before handing over large sums of money to the control of another, it makes sense that shareholders would want to make sure their money is in safe hands. If it turns out the shareholders were deceived or lied to, filing a lawsuit against the company for fraud and/or breach of fiduciary duties is common. Unfortunately, thanks to a new ruling by the Delaware Supreme Court, shareholders have a new reason to hesitate before taking their grievances to the courts. Continue reading ›

Lubin Austermuehle’s Oak Brook and Chicago Attorneys Patrick Austermuehle and Andrew Murphy Named 2015 Illinois Super Lawyers/Rising Stars as Class-Action, Business Litigation and Consumer Rights Attorneys

October 31, 2014 | Peter S. Lubin and Patrick Austermuehle

Super Lawyers named Chicago and Oak Brook business trial attorneys Patrick Austermuehle and Andrew Murphy Super Lawyers/Rising Stars in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Oak Brook and Chicago business litigation lawyers have over a quarter of a century of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle 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.

Peter S. Lubin

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