Shareholders Can Enforce Derivative Fraud Claims Against Officers and Directors Notwithstanding Delicto Betting Context – Criminal Law

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I wrote and explained the so-called in delicto bet defense in actions for fraud. To see In Pari Delicto prevents the same wrongdoer from seeking damages related to his own fraudulent conduct. Basically, in the corporate context, if corporate officers and/or directors are involved in fraud on behalf of the company, shareholders are prohibited from asserting derivative claims on behalf of that same company because the fault of agents is blamed on society and society is not allowed to profit from its own misdeeds.

In Pari Delicto

As a leading decision of the Court of Appeal explains: “[W]here the conduct comes under the authority of the agents, everything they know or do is imputed to their principals. . all corporate acts – including fraudulent ones – are subject to the presumption of imputation [and]As with in pari delicto, strong public policy considerations underlie this precedent: imputation incentivizes a principal to select honest agents and to delegate tasks carefully. » Kirschner v KPMG LLP15 NY3d 446 (2010).

There is a well-known exception to this defense of in delicto bet-the adverse interest exception-when fraudulent proxies act only in their own interest and not in the interest of the company, then the company is entitled to sue them, or in the case of a shareholder, to assert a derivative claim against them on behalf of the company for the harm the fraud caused to the company.

A new decision of the Appellate Division, First Department, Community Association of the E. Harlem Triangle, Inc. v Butts, 2021 NY Slip Op 07503 (1st Dep’t Decided on December 28, 2021), implies an interesting factual context for the application of the adverse interest exception.

In butts, the plaintiffs were shareholders of the corporation in question thereby suing its officers and directors, and others who joined them, in connection with the sale of the corporation’s real estate. Plaintiffs’ Amended Complaint alleged that individual defendant officers and directors concealed from the board of directors an offer to purchase the subject property for $42 million and convinced a majority of the board to vote to approve the sale of the property to another entity for only $39 million. The plaintiffs allege that the company suffered damages equivalent to the difference of $3 million or the difference between the value of the property at the time of the sale and the purchase price of $39 million paid by the accepted buyer. .

The New York County Commercial Division denied the defendants’ motion to dismiss the fraud allegations and the First Department upheld the relevant part.

The First Department considered and rejected a number of arguments advanced by the defendants in their attempt to dispense with the allegations of fraud at the pleadings stage.

Reimbursable damages

First, the First Department accepted the theory of damages alleged in the Amended Complaint because there was a specific confirmed alternative offer for more money than the Defendants squandered:

Plaintiffs have adequately pleaded non-speculative damages and their claims are not barred by the out-of-pocket rule (see Lama Holding Co. v. Smith Barney88 NY2d 413, 421 [1996]). The plaintiffs allege that a specific alternative offer for the property for an additional $3 million was made around the same time as Extell’s offer, that the higher offer was hidden from them, and that they unknowingly passed on this offer by approving the $39 million sale. (see Bernstein versus Kelso & Co.231 AD2d 314, 322 [1st Dept 1997]; People v Coventry First LLC52 AD3d 345, 346 [1st Dept 2008], affd for other reasons 13 NY3j 108 [2009];Connaughton vs. Chipotle Mexican Grill, Inc.29 NY3d 137, 141-143 [2017]). Integrated/Peebles’ alternative offer of $42 million and the terms of the term sheet had been agreed upon and therefore did not constitute mere speculative damages. The deal was never written into a contract because defendant Charles Simpson, counsel for EHAT Corp., allegedly colluded with the other defendants to direct the sale to Extell, and never drafted and handed over the contract to the principal of Peebles.

For a more detailed discussion of the damage issues related to this factual scenario, see my article on the Chipotle decision.

Intention

The First Department then allowed inferences to fill gaps in the allegation of required intent to defraud, citing Court of Appeals case law that recognized more lenient pleadings when the facts are particularly known to defendants. (Pludeman v Northern Leasing Sys., Inc.10 NY3d 486, 491 [2008]; see Bernstein231 AD2d at pages 321-322; Houbigant, Inc. v. Deloitte & Touche303 AD2d 92, 98 [1st Dept 2003]).). In this regard, the First Department has taken note of the evidence demonstrating that even though one of the defendant directors was not in fact at the Board meeting at which the vote took place, he worked directly with the other defendant who was at the meeting and was also aware of the other offer, among other things. The First Department also rejected defense arguments that they stood to gain from a higher sale, so they could not have committed fraud by orchestrating a lower price. At the pleading stage, the First Department found this argument unnecessary, especially since the defendants did not advance any legitimate reason to reject the superior sale.

Exception of interest unfavorable to In Pari Delicto

After supporting allegations of aiding and abetting the fraud against other defendants, including the company’s real estate brokers who were involved in the sale in question, and rejecting the defense based on the rule of appreciation at this stage, the first department recognized that the defense in pari delicto was also insufficient to dispose of the allegations of fraud at the pleadings stage:

The court correctly held that the interest exception contrary to the in pari delicto doctrine applies. Drawing all findings in favor of Plaintiffs, we conclude that it is sufficiently alleged that Defendants have wholly abandoned the interests of EHAT Corp. and defrauded her out of $3 million in the sale, which harmed EHAT Corp., and that the ADC defendants were acting entirely for their own purpose in directing the sale to Extell rather than Peebles/Integrated (see Kirschner v KPMG LLP15 NY3d 446, 464-467 [2010]).

Remark

The Commercial Division and the First Department were clearly sufficiently concerned about the seemingly suspicious nature of the sale transaction to let these fraud claims proceed to the pleadings stage. The significant difference between the two bids for ownership and the concealment of the higher bid laid a solid foundation for plaintiffs to explore and pursue their fraud claims, overcoming several well-known potential defenses. As many fraud claims depend on how the courts view the factual context of the alleged fraud, this scenario has served to bring claims to life for other litigation.

Originally published on January 03, 2022

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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