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AGENTS OF
CORPORATIONS
Authority
Actual
Apparent
Inherent
Ratification
Estoppel
RTA s.2.01
RTA s.2.03
RSA 8A
(RTA Strikes)
RTA 4.01
RTA s2.05
P to A
P to TP
P gen. Undiscl.
P ratifies A
NO AGENT
Power held by
A to affect P
when TP rbly
believes A has
authority to act
based on Ps
manifestation
to TP
P liable for A if As
acts are within auth
usually confided in
an agent who
normally has that
auth (can K out)
Affirmance of prior
act done by A
No act or app P
may be liable to TP
based on A if:
Express
Implied
Agent acts
reasonably on
Ps
manifestations
that P wants A
so to act.
App Imp
Authority: put
agent in place
for TP to rbly
believe A has
auth.
Conduct,
words, or
implied by
conduct
Based on As
reasonable
perception
R3rd s.6.03
Duty is on A to disclose P
Undisclosed
Principal
Or
Rogue A
P is
intention
or
careless
of TP
belief
P is on
notice of
TP belief
and does
not try to
stop
IMPLIED
affirmance = P
conduct, P
must have
reason to
know
P must have
choice, cannot
be AFTER act
Look for
undisclosed P
Such powers
are as
reasonably
necessary to
carry out the
duties
P acts to
justify rnbl
assumptn
of consent
A must be
acting ON Ps
BEHALF!
RSA 161
Sub Agent
RTA 1.04(8)
A of A to
conduct Ps
business in
scope of A
authority
Look to past
conduct
Manifest
assent
that act
will affect
legal
relations
Liability of P on
TP on Tort
Not on Agency, on KIND of Ag
Look to K to
clarify As
authority
Employee
Liability of
Agent on K
Undisclosed
Principal
A & TP ARE
party UNLESS
agree
otherwise
Unidentified
Principal
A IS party
UNLESS
agree
otherwise
P liable if
within scope of
employment
CONTROL
Disclosed
Principal
A is NOT party
UNLESS
agree
otherwise
Nonemplee
Agent
P NOT liable
unless:
Nonagent Ind.
Contractor
P assert control
RTA 7.03(1)
Direct
RTA 7.07
Employee
RTA 7.08
Apparent A
P negligent
Non-delegable
P volunteers to
take duty
Apparent
Authority
Nuisance per
se
Incompt
Contractor OR
Financ. Incom.
Nondelegable
duty
7.07 SCOPE:
Engaging in conduct subject
to Ps control
Liability = if harm is
foreseeable from conduct of
EEs
7.07 Intentional
Look at type of tort
Agents Duties
If Breach:
P MAY consent to
Conflict of Interest
8.01
Fiduciary
Duties
Disclose
MATERIAL
information
A must act in
good faith
Ps consent
must be
specific to act
or transaction
Deal fairly
Disgorge
profits to P
Waiver
Duty of Care
RTA 8.08, .09
Reasonable
Care 8.08
Worse than K
case b/c not
damages,
disgorge
Good Conduct
catch-all 8.10
Loyalty
Personal
Benefit
8.02
Adverse
Dealings
8.03
Competing
8.04
Proprietary
Inform
8.05
Waiver
Waiver
Waiver
Waiver
When in
connection to
agency
relationship
Not use
property of P
for own or TP
Personal
Profits from
Position
Reading
Grabbing &
Leaving
Town &
Contry
Usurping
Business
Singer
Trade secured
through years
of bus. and
advertise, $$
Partnership
Duty
RUPA 404(b):
duty of loyalty,
inc approp of
partnership
opportunity
Punctilio of an
honor most
sensative
Meinhard
Partnership
101(6); assc of
2 or more as
co-owners, for
profit
101(10):
almost any
entity can be
partner
(1) Agreement
b/t parties
Notice
+
Opportunity
RUPA 103b3:
Cannot elim loyalty,
but can id certain
categories, if not
manifestly
unreasonable
201(a): PS is
distinct from
partners
RUPA is basis
default rules
(4) Share in
profits,
presumed,
UNLESS
(5) Share in
management
401(f)
Partnership Windup
306(a): All
Ps j/s
liable for
all
liabilities
807(a):
after
creditors,
surplus to
PS by
rights to
distribution
308(e): if
not PSs w/
each
other, not
PSs to 3rd
parties
305(a): PS is
liable for act of
Ps if act in
ordinary
course of
business
306(a): all Ps j/
s/l for all
wages
Late-Coming
Partners NOT
liable for
previous
incurred oblg
rent
RUPA
404(d):
PS must
discharge w/
obligation of
good faith &
fair dealing
Duty of Loyalty,
Care, Good Faith,
Inspection
Non-Waivable
(6) Partners
may be
creditors
(7) Look at
whos at risk at
dissolution
debt
301(1): Each partner is agent
of all UNLESS (1) P does not
have authority, AND (2) TP
knows or should know P
doesnt have author
Interested party
cannot vote in
ratification of selfinterested
opportunity
Perreta v.
Prometh
Annuity/retire
Partnership By Estoppel
Debt service
Sale goodwill
or property
Partnership
Disassociation
P must show
express or
implied
holding out of
PS by D
Represent
was made by
D or person
alleged PS
Reason.
Reliance by
TP in good
faith
TP is harmed
Partnership Transfer
RUPA 601(3)
P may be
expelled as
terms of PS
Agr
RUPA 602b1:
Wrongful
expel ONLY
IF breach
express term
of PS Ag
PS FREEZEOUTS! P v. TP
305(c) & 401(c): PS is liable for
ordinary bus of P tort, must
indemnify P if in ordinary course
401(i):
All Ps must
consent to sell
PS interest
501:
P is not coowner of PS
property,
cannot
transfer
Effect of PS by Estoppel
If D purports
to be PS and
TP relies, D is
liable to TP
IF MADE IN
PUBLIC
MANNER, D
as PSbE is
liable even if
doesnt know
If PS liability,
then that
PSbE is liable
as if P were
partner
Partnership
Disassociation
603(a)
Continuation of Business
Article 7
602(a)
P may disass
any time, right
or wrong, by
express will
RUPA 701
(i) economic
purpose
frustrated
RUPA 801(5)
(ii) one P
engag in
conduct that
makes PS not
reasonably
conduct
(iii) no longer
reasonably
practicable to
contin PS
under PS Ag
FOR TERM
602(b)(2): if in
term:
Wind Up
Process
(i) P withdraws by
express will
(ii) P expelled by
judicial determ.
(iii) P becomes
debtor in bankrupt.
(iv) P expelled or
disass b/c dissolv
or termination
Direct
Shareholder Suits
Liquidation
value, OR
AT WILL
601(1): notice
by P to withdr
BUYOUT:
SH
Derivative
(recovery goes to Corp)
C
Who would recover?
MBCA 7.41
Blasius Standard:
(1) P must show Bd acts with
effort to deny SH vote right
(2) Bd must provide compelling
justification
Revlon Duty:
Duty of Bd
changes on
liquidation
duty to max
value for SHs
Standing
MBCA 7.42
Demand Requirement
FRCP 23.1 Must
state desired result
in demand
Demand Sent
BD Accepts
Denial is
subject to
BJR
If SH loses
derivative suit
SH may
have to pick
up tab for D/O
and must pay
own fees
Demand Requirement
When Ds are
def in case
Demand Futility (1 of 3)
If demand
made,
cannot
claim futility
NY
Auerbach standard
P-SH must
overturn
BJR to
pass denial
BUSINESS JUDGMENT
RULE
BD Denies
Some objective
determination of value
needed
Fair Market Value
602(c)
Wrongful
disass = P
liable for
damages to
PS for disass
EXPULSION: if not
permitted in PS Ag, cannot
expel, can seek dissolve but
404d
Value based
on sale of bus
as going
concern w/o
disass P
Value at
windup is
greater of:
(1) SLC
member selc
process
review
(2) proced
used by SLC
to reach sub
review
(3) Substan
outcome
NOT
reviewed
Del
Zapata standard
(1) Bd Indp &
good faith
(2) Bases
supp decision
(2) Ct applies
own indp BJ
whether to
dismiss
Corporation
Basics
Effect of
Corporation
Agency Costs
Cost of Contracting
Cost of Monitoring
MANAGER v.
SHAREHOLDER v.
DIRECTOR v. BUSINESS
FUTURE
Residual Loss
Corporate Name
Private
Publicly held
Big enterprise
More captz
Traded shares
Closely held
Smaller
Shares illiquid
Sm # of SHs
Like PSs
Mostly LLC now
# shares authorized
Equity v. Debt
Incorp
Contracts
Terms
MBCA 2.02
Public
Shareholders:
Bonding
Corporation
Creation
Public v
Private
Director names
Authorized Shares
Outstanding Shares
Treasury Stock
Book Value
Market Cap
Bylaw provisions
Limited liability of directors to SH
De Facto
Short-Form
Merger DGLC
253
Estoppel
Act
2.01
Cum/
Line
Voting
Mere Instrumentality
Rest T s.324a: P
may be liable if TP
relies on
Direct Liability
Proxy Issues
RECORD SH
Proxy Fraud
Rule 14a-9
Excluding Proxy
Rule 14a-8
SH $2000 or 1%
SH Record
Inspection
DGCL 220
If SH fails to
satisfy elig
or violates
14a-8i
Prove
Essen link
Mgmt
excludes w/
burden filing
to SEC
Includes
legal
rationale
Unity of interest in
ownership no diff
b/t Corp and SH
Generally same,
unity in ownership,
commingling,
holding as one,
same office, EEs
Adhering to fiction of
sep leads to (1)
FRAUD or (2)
injustice
Mgmt must
notify SH w/
option to
remedy
SEC
determ.
Undercapitalization
Commingling of
funds
Mix use of
assets
Election of Ds plurality of
votes cast
No maint C
form or records
Proxy Contest
Prove
material
Alter Ego
Limited
Liability
After Incorp
Third Party:
Negligence
is standard
Subject to
BJR if
excluded
Injunc
damages - reciss
Nonbinding
phrasing
Intris fairness
not aff def when
material fact
omitted if in
proxy, & proxy
was essen link
Revolves around
elections
Personal
grievance
Pertains to partic
Board seat or
procedure
Corporate
Fiduciary Duties
Standard of
Liability
Duty of Care
BJR
Stand of Conduct
(aspirational)
MBCA 8.30:
Good Faith
Reasonable Belief
Reasonable Care
Overcoming
Exculpation of DIR
(not officers)
Effect
Overturning
BJR
Semi-Strong: mrkt
incorporates PAST &
CURRENT information
Strong: Mrkts incorporate all
information (even not public)
Stock Author
MBCA 6.40
Distributions to
SHs
Money or other
property to SHs
subject to BJR
Right to Fire Off
Board Reliance
DGCL 141(e): DIR may rely on compensation experts & may trust
decisions of mgmt, employees, legal counsel, bd committee, etc.
Duty of Care:
Owed to Corp
Duty of Loyalty: Duty owed to the Corp to act with Good Faith & Reasonable Belief of acting in
Evaluate PROCESS
Action:
Loss b/c of ill
advised or
negligence
Best Int of Corp ALL Ds liable UNLESS dissent in writing (or absent)
Inaction:
Unconsid failure of
Bd to act when act
would prevent loss
Ds knew/
should
know of
wrongful
conduct
Bd took
no steps
in good
faith to
remedy
Flagrant
Diversion
Interested
Transactions
Executive
Compensation
Usurpation of
Corp Activity
Disclosure to
Shareholders
Essentially
stealing C
assets allows
C to sue for brh
D or O cause C
to enter deal
with personal
inter for D or O
When Os
salary > fair
mrkt value
D or O takes for
personal gain a
deal from C in
which prop int
Providing SHs
false or
deceptive info
to detriment
Inaction
was prox
cause of
the loss
To Defend
(1 of 3):
No
loyalty
prob in
fact
existed
Shareholder
Care/Action
SHs owe NO
fiduciary
duties to other
SHs
Trans
appd by
dis-int
Ds or
SHs
DGCL 144
Interested transaction not
voidable b/c of interest if
disclosed & appr by maj. of:
(1) Disinterested Directors
(2) SHs entitled to vote
(3) K or transaction is fair to C
If no rat by
disint SHs,
control SH
must prove
entire
fairness
(2) Interested
trans b/t
CORP &
CONTR SH
C is
finan.
able to
take
oppt
Mgmt uses
governing
structure to
divert power
Embr opp
would
create
conf b/t D
& Corp
interest
Disclosure: removes
judicial oversight
Del Standard
BJR:
Burden
on P to
rebut
Bds act
IFT:
Maj get
ben +
exc min
+ at exp
of min
Majority must
have legitimate
business pur
If yes, minor
must show other
means poss.
Ct must
balance
legit bus
pur agst
practi of
prop alt
Close Freeze-Out
Min Veto
Gross
Negl w/o
intent
Idemnification
Del Code
If rat by
major of
minor SH, P
must show
unfairness
C has
int. or
expectc
y in
oppor
Entrechment
Del Standard:
Entire
Trans
was
fair
Ratification
Insider
Information
Corporate Opportunity
Interested
Conduct
(1) Interested
trans b/t
CORP and
DIRECTORS
= ratif by
disinterested
SHs then
subject to BJR
DGCL 141(a)
Bd has right of
oversee mgmt
Derelict of
Duty
cons
disregard
Model Code
MB 8.51(a) Permissible indem if (1) good faith OR
(2) conduct which may/must be indem by C
Close Corp Ag
to Prevent
MB 7.30:
Voting Trust
MB 7.31: Voting
Agreements
SH Ag CANNOT
bind Directors as D
UNLESS
(1) Close Corp
(2) Min nonpart no
object, AND (3)
terms = reasonab
Basics
1933 Process
register
Attrib of Stock
Atrib of LLC
(1) contracted
allocation of prof, not
share
(2) membership not
freely alienable
(3) Mems cld pledge
econ int but not
control rights
Private
Placement
Test
Number of
offerees &
relation to
issuer
Number
of units
offered
Size
of
offering
Registration Statement
= Effective
Manner
of
offering
Total # offered,
sophistication,
access to info
Liabilities
Materiality:
Info an avg prudent investor ought reason. Have before purchasing
Manipulations
Recission remedy
Wash sale
options included
Matched sale
1933 Act
s.12(a)(2)
Material
Misrepresent
(fraud/deceit)
Exemptions from
Registration
Insider Trading
1934 s.16(b)
Scienter
(recklessness or
wrongful mind)
Connection to
sale of security
Min recklessness
required
Only purchasers or
buyers have standing
Reliance
Economic
Loss
Loss
Causation
1934 Act s. 4
Trans
Causation:
Fraud caused
the investment
S. 404 no loans to
company executives
Misappropriate Theory
Silence not
actionable
Sarbanes Oxley:
Transactions
Procedures - Sturct
Emphasis on
equal access to
information
Tipee
Must be in CONNECTION
with sale & must be insider
(actual or temp fiduciary)
Loss
Causation:
Fraud causes
the LOSS
Horizontal D
Strict Liab
Options = strike
+ premium