Memorandum Opinion - the Circuit Court for Baltimore City
Memorandum Opinion - the Circuit Court for Baltimore City Memorandum Opinion - the Circuit Court for Baltimore City
since 2002 have as their sole purpose the destruction of shareholder voting rights and theprevention of meaningful challenges to board control by the Investment Manager 4 and itsaffiliates. Plaintiffs further allege that the Investment Manager is motivated to control the boardin order to protect its lucrative fees as a return on its $425,000 purchase of the investmentadvisory agreement.The remaining by-law amendments which plaintiffs seek to have declared null andvoid can be characterized as “qualification” and/or “supermajority” by-laws, as well as a by-lawpurporting to limit judicial review of board election results. Plaintiffs contend that these by-lawamendments constitute unlawful interference with the shareholder franchise and a violation ofthe board’s fiduciary duties as prescribed by Maryland law.On these issues the Court is not helped particularly by the parties’ opposinginterpretations of Maryland’s statutory scheme for electing and qualifying directors. Bothpositions beg the question. Plaintiffs cite § 2-404(b)(1)(i) to assert that the determination ofdirector qualification arises only after their election. Defendants cite § 2-403 to support theircontention that director qualifications are properly established by charter or, as in this case, bycorporate by-law. But the Complaint alleges that, these matters notwithstanding, the“qualification” by-law, the “supermajority” by-law and the “judicial review” by-law, as amended,are unreasonable and impermissibly impact shareholder voting rights. (Compl. 34-37 and 52-54.)4Since July 12, 2002 the company’s investment manager has been CEF Advisors, Inc.Defendant Winmill serves as President of CEF Advisors, Inc., which is a wholly-ownedsubsidiary of Winmill & Co., Inc., a publicly-owned company, whose voting stock is controlledby Winmill’s family. (Compl. 8, 14 & 15.)8
Neither party disputes the right of stockholders to elect directors at annualmeetings under Maryland law. § 2-404(b). The next logical questions then are what duty thecorporation has to ensure fair voting procedures and by whom and how those procedures may bechallenged. A leading case from the Delaware Chancery Court holds that even unintendedviolations of shareholder voting rights are actionable. Blasius Indus., Inc. v. Atlas Corp., supra,564 A.2d 651 (Del. Ch. 1988).The Blasius decision cites an earlier Delaware case in which board action wasenjoined for interference with shareholder voting rights and quotes it as follows:The corporate election process, if it is tohave any validity, must be conducted with scrupulousfairness and without any advantage being conferred ordenied to any candidate or slate of candidates. In theinterests of corporate democracy, those in charge ofthe election machinery of a corporation must be heldto the highest standards of providing for and conductingcorporate elections. The business judgment ruletherefore does not confer any presumption ofpropriety on the acts of directors ....Aprahamian v. HBO & Company, 531 A.2d 1204 (Del. Ch. 1987). While neither plaintiffs 5 nordefendants have found significant Maryland authority on this point, the Court is persuaded thatthe Maryland courts would recognize shareholder voting rights as having the same or similarstatus as recognized by the Delaware cases.Indeed, defendants do not appear to cavil with the notion that a stockholder maysue to enforce his or her voting rights. But they take strong issue with the entitlement of plaintiffShaker to bring this action directly rather than derivatively in the name of the corporation. For5Plaintiff Shaker is the only plaintiff stockholder and so he is the only plaintiff able toassert such a claim.9
- Page 1 and 2: RICHARD J. SHAKER, et al. * IN THEP
- Page 3 and 4: judicial review of the election res
- Page 5 and 6: Manager, at the expense of the shar
- Page 7: Corp. L. 238, 257.For at least a ha
- Page 11: Blasius Indus., Inc., 564 A.2d at 6
Nei<strong>the</strong>r party disputes <strong>the</strong> right of stockholders to elect directors at annualmeetings under Maryland law. § 2-404(b). The next logical questions <strong>the</strong>n are what duty <strong>the</strong>corporation has to ensure fair voting procedures and by whom and how those procedures may bechallenged. A leading case from <strong>the</strong> Delaware Chancery <strong>Court</strong> holds that even unintendedviolations of shareholder voting rights are actionable. Blasius Indus., Inc. v. Atlas Corp., supra,564 A.2d 651 (Del. Ch. 1988).The Blasius decision cites an earlier Delaware case in which board action wasenjoined <strong>for</strong> interference with shareholder voting rights and quotes it as follows:The corporate election process, if it is tohave any validity, must be conducted with scrupulousfairness and without any advantage being conferred ordenied to any candidate or slate of candidates. In <strong>the</strong>interests of corporate democracy, those in charge of<strong>the</strong> election machinery of a corporation must be heldto <strong>the</strong> highest standards of providing <strong>for</strong> and conductingcorporate elections. The business judgment rule<strong>the</strong>re<strong>for</strong>e does not confer any presumption ofpropriety on <strong>the</strong> acts of directors ....Aprahamian v. HBO & Company, 531 A.2d 1204 (Del. Ch. 1987). While nei<strong>the</strong>r plaintiffs 5 nordefendants have found significant Maryland authority on this point, <strong>the</strong> <strong>Court</strong> is persuaded that<strong>the</strong> Maryland courts would recognize shareholder voting rights as having <strong>the</strong> same or similarstatus as recognized by <strong>the</strong> Delaware cases.Indeed, defendants do not appear to cavil with <strong>the</strong> notion that a stockholder maysue to en<strong>for</strong>ce his or her voting rights. But <strong>the</strong>y take strong issue with <strong>the</strong> entitlement of plaintiffShaker to bring this action directly ra<strong>the</strong>r than derivatively in <strong>the</strong> name of <strong>the</strong> corporation. For5Plaintiff Shaker is <strong>the</strong> only plaintiff stockholder and so he is <strong>the</strong> only plaintiff able toassert such a claim.9
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