Norris, McLaughlin & Marcus

Make Sure You Have An Up-To-Date Shareholder Agreement Before It’s Too Late

No matter how many times I write about it, new clients keep coming in who have no signed shareholder agreement.  As regular readers of this site well know, a minority shareholder still has protection against wrongful acts based on the New Jersey shareholder oppression statute.  However, there are many ways that not having a shareholder agreement could cause a significant problem.

In one recent case, the fact that there was no shareholder agreement meant, of course, that there was no buy-sell agreement, and no provision in place for what would happen when one of the shareholders died.  No “key-man” life insurance policy was in place.  No steps at all were taken to deal with such an eventuality.  It was as if the shareholders never even contemplated that either of them could ever die.

When one of the 50/50 shareholders passed away, that shareholder’s wife became the new 50% owner.  She had no interest whatsoever in being involved with the company, but also did not want to sell her interest.  So, her son effectively controlled her shares, and my client was now in business with someone whom he had never before met, and who could barely read and write.  In fact, my client’s new de facto business partner bragged to customers that he never wrote a paper in college, and instead paid other students to write them for him.  My client, of course, was not convinced that this was the best way to impress a customer.

And the customers agreed, leaving in droves so they did not have to deal with the son.  My client petitioned the court for the appointment of a Provisional Director to break all ties, with the first issue being whether the new shareholder stand-in should be fired, or at least put in a position where he would not deal with customers.  We also sued the new widow/shareholder, claiming that saddling the company with the incompetent son constituted an act of shareholder oppression.

By now, any reader who sees their own company in these facts, even remotely, should have a headache, thinking about what may be in store if the situation is not rectified soon.  Yes, at the end of the day, the new shareholder wound up being bought out, and the son was never heard from again – at least not by my client.  But the time and money wasted, not to mention the aggravation, were almost incomprehensible.  I bit my tongue several times, but by the end of the case, when I got to know my client pretty well,  I finally had to say it – how much money do you think you saved by not paying a lawyer to draft a shareholder agreement?

He laughed, but it wasn’t funny.

Once a problem arises, it is far too late to enter into a shareholder agreement.  Have the document drafted now, before an issue rears its head.  And if you are starting a company, please do not skimp.  A few dollars now can prevent significant shareholder dispute litigation in the future.

If you have any questions about this post, or other related matter, please email me at dcroberts@nmmlaw.com.

Shareholder Oppression May Be Easier to Prove Than You Think – Which Should Worry Majority Shareholders

While most of my posts on this blog look at shareholder dispute issues from the perspective of the oppressed minority shareholder, I have represented numerous companies defending shareholder litigation, as well.  One corporate client  recently wanted to know how to avoid such litigation if the shareholder agreement has been long-ago agreed to, and there is little that can be done to get near-warring parties to agree to anything in writing.  He feared that shareholder dispute litigation was in his company’s future, and wanted to know how to avoid it.

At the point he asked this question, it was too late for him, and the lawsuit was filed less than a week later.  However, his question applies to thousands of companies across New Jersey.  And thinking about the issues reveals the vulnerability that many companies have, simply based on the way that small, closely-held businesses are generally run.

For example, it is extremely common for majority shareholders (or members, in the case of an LLC) to run personal expenses through the company.  Regardless of whether the expense is a legitimate business expense or not, everyone knows it happens all the time.  Cars of family members who do not work at the company; personal dinners and parties; family vacations – all are routinely expensed.  These expenses are so commonly taken that judges comment all the time that they expect such items to be an issue in a shareholder oppression case.  In fact, I am hard pressed to think of the last case I have handled representing a minority shareholder where I was not able to determine that the majority shareholders were improperly running personal expenses through the company.

A second vulnerability is overpayment of salaries at the expense of shareholder distributions.  For example, majority shareholders often take a salary in excess of what the job that he performs would be worth on the open market.  Because of this, there is less money – sometimes no money at all – to be distributed to shareholders.  As with personal expenses, these overpayments happen all the time.

Since these issues occur with such frequency, it seems odd to a business owner to hear an attorney warn that these practices could land you in shareholder dispute litigation.  I was told by one majority owner (a few months before he was sued) that I “didn’t understand” the way small businesses operate if I expected him to pay himself a market-based salary.  He was adamant that the inflated salary was why he was a business owner in the first place.  In fact, he specifically argued to me that he was “entitled” to take an above-market salary since he was “the owner.”

Since I am mentioning this occurrence in this article, you know, of course, how it turned out.  When he was sued, and came to me to represent him, he could not believe how the minority shareholder’s lawyer was “distorting things” and making him look like he was looting “his own” company.

Which leads to the point I was trying to make with him in the first place.  It was not “his company.”  And it is not “your company” when there are minority shareholders.  If your job is worth $150,000, every penny you pay yourself over that amount arguably should be distributed pro rata to the shareholders.  So, if your job is worth $150,000, and you pay yourself $250,000, then $100,000 of your salary likely should have gone to the shareholders.  If there is a 15% shareholder, he has the right to “cry foul” and complain that $15,000 of the extra money you paid to yourself should have gone to him.

The critical point of this is, by doing this repeatedly, likely over years, and frequently in larger amounts than a $15,000 dispute, you are handing the minority shareholder a shareholder oppression claim on a silver platter, possibly entitling her to a buyout (at least in New Jersey).  These claims are so easy to make that a majority of clients who come in for a consultation, not even knowing if they have a cause of action, probably have a decent claim just on one of these two bases alone (personal expenses and overpayment of salaries).  In other words, these practices are so prevalent that most companies – that I have run across, in any event – are vulnerable to attack if a forensic accountant went through all of the company’s books and records.

Since many companies simply cannot afford shareholder oppression litigation, or to buyout a minority shareholder, it is often much better strategically to simply go to great pains to treat all minority shareholders fairly.  Since what constitutes “fair” towards a minority shareholder may not be obvious, seeking legal advice on how to achieve this is often money well spent.

If you are a majority shareholder in New Jersey, just remember – if the minority shareholder of your company walked into my office, chances are pretty good that I would be able to find something that you have done wrong that just may constitute shareholder oppression.

Will A Court Reinstate A Terminated Shareholder-Employee?

An injunction is when a court orders someone to do something, or not to do something.  These can be very difficult to obtain – in some circumstances – and are often not granted when money damages at the end of a lawsuit can make the aggrieved party whole.  In shareholder dispute litigation, injunctions are often a critical tool.  A court can order the majority shareholder not to take certain actions that would be hard to unwind at the end of the case.  For example, if, during the pendency of a shareholder dispute litigation, it is uncovered that the majority owner was stealing from the company, the court can order him or her to have no further access to corporate funds, and can even appoint a third party (special fiscal agent) to take over the company’s finances.

I have written many times how the termination of a shareholder/employee can, under the right circumstances, be considered shareholder oppression.  Usually, the first thing a prospective client asks in such a situation is, will the court order the company to take me back?  After all, why should the company and the majority shareholders be permitted to use company money to pay their legal fees, when I no longer even have a paycheck to pay my mortgage – let alone pay legal fees?

This makes perfect sense, but that is unfortunately not the way courts usually have seen it, at least until fairly recently.  Historically, it was extraordinarily difficult to obtain an order reinstating an employee in these circumstances.  However, a new court decision in New Jersey has made it easier for a court to enter an order maintaining the status quo.  Clearly, an order of reinstatement of employeement status would seem to maintain the status quo, and may fit squarely under this new policy.  However, courts are still reluctant to interfere in the inner workings of a company.  As with many things in this area of the law, the answer to whether a court will now reinstate a terminated shareholder/employee is – it depends.  For example, a termination that seems to have no legitimate basis will likely be viewed much differently than one for theft.

If you are an employee who has been terminated and you are seeking to be reinstated while pursuing shareholder dispute litigation in New Jersey, you should meet with an attorney with experience with these types of cases to discuss whether this change in the law can benefit you.

If you have any questions about this post, or other related matter, please email me at dcroberts@nmmlaw.com.

I Gave Away My Right to Co-Sign Checks – Now What?

Do you remember when you first began your company, and you used to trust your business partner? For many people reading this website, those days unfortunately seem long ago and far away.

When you started things up, you may not have paid close attention to at least some of the details. It may be that while you were focusing on big picture items, not all i’s were dotted, and not all t’s were crossed. Some of those things may be hurting you right now, like the fact that you never negotiated a way for you to sell your shares if you wanted out. But one decision made years ago may be absolutely killing you – not being granted signature authority on the bank accounts.

Many clients come to me and complain that they are afraid that their business partner has been taking too much money out of the company, or that their partner will write himself a huge check if my client complains too loudly about whatever issue he may have. When the client is a minority shareholder and has no role whatsoever in the finances of the company, this may be understandable. But in many cases of even 50/50 shareholders, the other shareholder has made himself the only person with signature authority, and you never had cause to complain. Until now.

If you see yourself in this scenario, it may be too late to have yourself added as a signer without your partner’s consent. If you can obtain consent, that would be an easy and obvious solution; but in that case, you likely wouldn’t even be reading this article. More likely, no consent on this issue is forthcoming, and you foresee a major problem. In such a case, you may not be entirely without a remedy. In order to maintain the status quo, a court may very well be inclined to enter an injunction preventing your fellow shareholder from engaging in certain transactions, especially out-of-the-ordinary withdrawals or payments to himself. There are no guarantees, since all such instances must be analyzed on a case-by-case basis. But, if you are really worried about an improper payment that does not need your signature, it may be better to have an attorney attempt to stop it before it is made, than to attempt to get the money back after the fact.

And if you are setting up a company now, and just want to make sure you do things right, do not give away the right to sign checks unless you really have no choice, or if it simply makes no sense in your particular circumstance for you to be involved in check signing. This often overlooked power should not be ceded lightly.

If you have any questions about this post, or other related matter, please email me at dcroberts@nmmlaw.com.

David C. Roberts To Present “The Good, Bad & Ugly Of A Business Divorce” Seminar On April 16

David C. Roberts and Norris McLaughlin & Marcus, P.A., cordially invite you to a complimentary breakfast seminar that will explain your rights as a shareholder. You may feel your business partner is defrauding you by taking too much money and using the company as a personal piggy bank.  Or, you may simply feel kept in the dark, marginalized, and left out in the cold.  If you are having a dispute of any kind with your co-owner(s), whether you are in the minority, a co-equal 50/50 owner, or even a majority owner who wants to learn more about what not to do, this seminar will help you understand your rights and remedies, and will answer any questions you may have, including:

  • What, exactly, is “shareholder oppression”?
  • Does a member of an LLC have the same minority rights as a shareholder in a corporation?
  • Does a 50% owner have the same rights as a minority member?
  • What should I do if I believe my business partner is stealing from me?
  • What are my rights if I have been fired as an employee, but they won’t pay me for my shares?
  • What records am I allowed to demand? How can I get them?
  • What limits, if any, exist regarding the majority owner’s compensation?
  • What do I do if I suspect I’m being “ripped off,” but I don’t really have any proof – yet?
  • If I am “oppressed,” what remedies do I have?
  • How do I find a valuation expert to value my shares?
  • Is there value in hiring a forensic accountant to review the company’s books?
  • Are my rights limited by a shareholder agreement or an operating agreement?
  • What happens if my company is family owned? If I sue a close relative, can I justify it to the rest of the family?
  • What happens to the company if I file a lawsuit?
  • If shareholder oppression litigation is in my future, how should I prepare for it?
  • If I file a suit and get fired because of it, will a court prevent my termination?

This seminar is free of charge, but space is limited. Click here to learn more and register.

LLC Members Have Equal Rights as Corporate Shareholders When It Comes To Minority Owner Oppression

Many times a law is enacted, but a judge or appellate court makes a decision that casts the interpretation of that law into chaos. (Of course, none of the judges I regularly appear before would ever do this.) Almost one year ago, the New Jersey LLC Act was amended to give LLC members the minority owner oppression remedies historically applied to shareholders of a corporation. Happily, one year later, the amendment is working exactly as the legislature planned.

What that means for owners of a New Jersey LLC is that they now have the same protections against majority oppression that owners of a corporation have historically enjoyed. If a majority owner commits fraud; pays himself way too much; uses the company as a personal piggy bank to subsidize personal expenses; fires a member who had an expectation of continued employment; freezes the minority owner out of the company; or does any of the other things that have been held to constitute oppression in the shareholder context, the same remedies now apply to LLC members. As readers of this site know by now, the most common and sought-after remedy, a fair value buyout, now is a statutory right of LLC members when oppression can be shown.

This may not seem like news, because it is exactly what the statute says is supposed to happen. However, practitioners in this area were at least mildly concerned that courts may not apply the amended law to existing disputes. Or that a court may decide that there was something particular about employment by a corporation, as opposed to an LLC, that warranted protection. Worse decisions have been made. However, with no such decision thus far, it appears that the transition to equal protection for LLC members has been a smooth one.

There have been many articles written on this site detailing what, exactly, may constitute oppression. Frankly, it never made much sense to, in effect, punish minority members of an LLC by not affording them the same protections that corporate shareholders enjoyed. But those days appear to be over. Now, in New Jersey, if you are having a dispute with your co-owner and feel you are being oppressed and taken advantage of, your rights are not dependent upon what business form some lawyer or accountant decided to use years ago when forming the company. If you feel your rights are being violated, you should seek the guidance of a business owner rights attorney, no matter what business form you utilize.

If you have any questions about this post, or other related matter, please email me at dcroberts@nmmlaw.com.

Are Dividends A Mask For Financial Fraud?

Previously on this website, I wrote about how a recession can help an unscrupulous business partner hide his fraud (Nov. 2008). For example, I explained that “tough economic times” can be used as an excuse to stop paying dividends or providing other financial benefits to minority shareholders.  However, it can be equally true that a stronger economy, like we may be experiencing at the moment, can also be used to mask fraud.

While this may seem counterintuitive at first, it makes perfect sense. In a scenario where the majority shareholders are running the company – and, more importantly, the finances, as is often the case – it is easy to disguise self-dealing if the self-dealer masks his own greed. For instance, a business partner who wants to pay himself an exorbitant sum, pay for his wife’s car, his child’s car insurance, and bonuses that he didn’t earn, has a choice. He can also declare at least some dividend so that his out-of-the-loop business partner does not become suspicious. Or, he can double down on his greed, and make sure that his business partner sees nothing out of this company other than his meager salary.

Many shrewd self-dealers are adept enough to realize that a business partner who is kept in the dark about finances is less likely to get suspicious if a modest dividend is paid at the end of the year. After all, any voiced suspicion can then be met with a statement reminding him that a dividend was paid, which did not have to be paid. If I was stealing from the company and was a thief – the thinking goes – why would I have declared a dividend?

Of course, the best way to defend oneself against fraud or self-dealing by your business partner is to inspect the books and records with some frequency.  However, that is not always possible since New Jersey law severely circumscribes one’s right to inspect the books and records of the company. In fact, there are few documents to which a minority owner is entitled, which will be the topic of an upcoming article. Thus, it is far better to write into the Shareholders Agreement (or Operating Agreement, in the case of an LLC) a right of inspection.

For many reading this article, it is too late to add such a provision, as the agreement was written years ago. However, there are various points in time when you hold certain leverage even as a minority owner. If the company is borrowing money, and you are asked to sign a personal guaranty, it might be reasonable to condition your signature on a binding, written agreement allowing you full access to the books and records of the company. After all, if you are being asked to put your personal assets at risk, why should you not get full disclosure about the company’s finances now and in the future?

Can A Shareholder Compete With That Company After Employment Termination?

Often employees sign non-compete and non-solicitation agreements that spell out what an employee can and cannot do after employment is terminated. Usually, if an employee never signed such an agreement, he or she is free to compete post-employment, provided confidential information is not involved. However, when the employee is also a shareholder, as is often the case in closely held corporations, there is a twist. Despite the fact that you never signed a non-compete, you may be held by a court to have a fiduciary duty not to compete with the company that you partially own, even if you were fired.

Somewhat surprisingly, there is no New Jersey case law relating to the precise duties owed to a company you partly own not to compete with it. However, it is likely enough for a court to conclude that you cannot compete with a company that you own. The issue will be whether that duty still applies if you have been terminated. After all, if the majority shareholders have just fired you, they are taking the position that they do not want you working for them anymore. How, then, can they argue that you should not be able to work for someone else? They can make this argument, but whether it is successful or not is likely to be dependent upon the particular circumstances of your case.

As readers of this web site well know, when an employee or shareholder is terminated, it may constitute shareholder oppression, resulting in judicial remedies including a forced buyout of your shares. If you file such a suit, announcing that you no longer wish to remain a shareholder and are seeking a buyout, your argument to legally compete is likely strengthened. Conversely, if you sit on your rights and do not sue for a buyout, you may be indicating (in the Court’s eyes) that you are content with being a “passive shareholder”, and may be prevented from competing more readily than if you had sued.

As with many issues involving an oppressed minority shareholder involved in a dispute with a business partner, your rights in such an instance are likely to be very fact specific. You should consult an attorney conversant in such issues before deciding to take a job with a competitor, even if you hadn’t signed a non-compete agreement. A brief legal consultation can make the difference between being sued and knowing that you are operating within the law.

Shareholder Oppression Remedies Are No Substitute for Control

The difference between owning 50% of your company and owning 51% is great.  But the difference between owning 50% and owning 49% could be catastrophic, despite the significant remedies available to oppressed minority shareholders in New Jersey.

After reading the other articles on this site, one comes away knowing that minority owners have significant rights in New Jersey (at least, that was my goal).  A shareholder who is taken advantage of by majority owners can file an action for damages and various other remedies, including a potential buyout of his shares.  However, such an action is expensive, time consuming, disruptive to the business, and should only be resorted to when all other options have been exhausted.  There is simply no substitute for retaining a majority, or at least a 50% interest, in your own company.

This advice may seem obvious, but it is amazing how many business owners bring in investors, giving up shares in their company (sometimes even a controlling interest), without thoroughly exploring whether there was any way they could arrange for bank financing.  Whether it’s because the owners do not want to pay anything other than the lowest interest rate available, or because they don’t want a bank to know all of their business, the reasons behind this reticence to become beholden to a bank is not uncommon.  Sometimes, a company truly cannot get a bank loan.  However, resorting to alternate methods to raise capital can have dire consequences.

In one company, the founding shareholders owned 60% and 40%, respectively.  The majority owner gave away a 5% interest to three separate investors (15% in total), reducing his interest to 45%, but raising almost $1 million for the company in the process.  He thought that he had a responsibility to “his company” to do this, even though the 40% shareholder refused to give up a single share. The former majority shareholder believed he was protected because he remained the single largest shareholder.  Plus, he took a long-term note back for the value of the shares that he “sold,” so that he would be repaid years down the road, when the company was sold.

Of course, it is obvious where this story is going – at least on this website.  Once the new shareholders “ganged up” on him with the 40% owner, and he was outvoted 55%-45%, his world had changed.  He could no longer dictate the direction of the company that he had run for years.  Nor could he set his own compensation.  At first, he was a minority shareholder without a remedy, because not everything that majority shareholders do that the minority disagrees with is actionable.  And when the new majority coalition finally went too far and engaged in action that he could sue over, it was hardly a day to celebrate.  An unceremonious firing, followed by two years of litigation, led to a multi-million dollar buyout that certainly did not leave him destitute.  However, while he may be a rich man today, he would much rather have remained in charge of his “own” company, with the opportunity to see what it could have achieved under his stewardship.

The worst part is, when I asked him why he didn’t just borrow the money the company needed from the bank, he confided that the interest rate was too high.  Well, at least he saved that.

The point is, while minority shareholders (and now, LLC members) do have significant rights in New Jersey, those rights are no substitute for control.  So, if you ever find yourself on Shark Tank, don’t take the money, unless you deparately need it and have no other alternative, if the “Shark” is asking for 51% of your company.  It will probably turn out worse than you can imagine.

Creative Ways to Contractually Minimize the Chances of Shareholder Dispute Litigation

When two new clients recently came in to have an Operating Agreement prepared for their newly created LLC, they indicated that they had read my website.  Since I had experience in litigating shareholder disputes, they wanted to know how to make a “bulletproof” Operating Agreement, so that there would never be litigation if they disagreed over an issue.

We spent a considerable amount of time trying to come up with a dispute resolution mechanism, but they could not agree on a third party to decide any significant disputes if they ever had one.  The only person they both trusted was a minister, but they did not want him making business decisions on their behalf.

After going several rounds trying to figure out how to contract against every possible contingency, they finally realized that what I told them in the first meeting we had was correct – you can’t possibly guard against, and contract around, every single contingency.  The best you can do is limit the odds of such litigation by making the agreement as fair to everyone as possible.

We came up with the idea of creating spheres of expertise for both of them and ensuring that the other was comfortable ceding control over such area.  For example, at the end of their negotiation, one of them had the final word on all matters relating to sales and marketing, while the other had final say on personnel, staffing and salary issues.  They also agreed that, if they could not agree on something truly major – like whether they should construct a new facility instead of leasing, or whether to expand the company – the business partnership likely would not work in the long run if a solution were forced upon them from the outside.

The compromise reached was, if one of them wanted to undertake a major change (like expansion) and the other did not, the one who wanted to take action had the right to buy out the other at fair market value.

As a shareholder dispute litigator, I found it truly refreshing that these two business owners found a way to contractually limit, as much as possible, the risk of costly litigation in the future.  By taking the time to really think through these issues at the outset, and spending just a few thousand dollars in legal fees, they went a long way toward ensuring that they would not some day have to spend hundreds of thousands of dollars on shareholder dispute litigation.

If everyone thought through these issues as carefully as these clients at the outset, shareholder dispute litigators would be all but out of business.