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| Would Florida Courts Recognize the Shareholder Oppression Cause of Action and the Buy-Out Remedy? |
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Author:
Eric Fryar
Eric Fryar
The shareholder oppression cause of action is an equitable remedy for shareholders (generally in closely‐held corporations) and members
of limited liability companies who are “squeezed out” or otherwise have their rights and interests so totally ignored and violated that their
ownership interest is essentially taken from them by those in control of the corporation. Typical facts include firing a shareholder/employee
and thus eliminating his ability to get an economic return on his investment and excluding him from participation in management, denying
that the he is a shareholder; manipulating the corporate finances to give preferential dividends to the controlling members at the expense of
the minority; withholding information and violation of inspection rights. The test is generally stated that the conduct of those in control of the
corporation has “substantially defeated the objectively reasonable expectations of the minority shareholder” with respect to the rights,
benefits and status as a shareholder. Establishing the existence of oppression is done through proving a continuing pattern of oppressive
conduct. The remedy is usually a court‐ordered buy‐out of the minority shareholder for the fair value of his shares as determined by the
court. The remedy is similar to the appraisal process used in the context of dissenter’s rights, such as in a cash-out merger, but there is no
offer or counteroffer, and the finder of fact (judge or jury), not an appointed appraiser, usually determines the value. Generally, the legal
basis of the shareholder oppression claim is a fiduciary duty that a controlling shareholder owes to a minority shareholder (as distinct that
those duties owed to the corporation). These cases are often brought with derivative claims (i.e., claims belonging to the corporation for the
breach of duties owed to the corporation, which are asserted by the minority shareholder on behalf of the corporation) because the same
conduct can be often result both in oppression of a minority shareholder and a violation of the duty of loyalty to the corporation. However,
shareholder oppression is a direct claim belonging to the minority shareholder individually. When the plaintiff prevails on both the derivative
claims and the oppression claims, then the court must fashion a remedy that takes both into account—usually, by awarding damages to the
corporation and ordering a distribution or by ordering the damages be paid directly to the shareholders or by adjusting the valuation of
plaintiff’s shares upward to account for the value of the corporate asset represented by the derivative claim. The leading cases developing
this cause of action are as follows: Donahue v. Rodd Electrotype Co., 328 N.E. 505 (Mass. 1975); Matter of Wiedy’s Furniture Clearance
Center, 487 N.Y.S.2d 901 (N.Y. App. 1985); McCauley v. Tom McCauley & Son, Inc., 724 P.2d 232 (N.M. App. 1986); Davis v. Sheerin, 754
S.W.2d 375 (Tex. App.—Houston [1st Dist] 1988, writ denied); Hollis v. Hill, 232 F.3d 460 (5th Cir. 2000).
Would Florida Courts Recognize the Shareholder Oppression Cause of Action and the Buy-Out Remedy?
Florida has no statutory provisions dealing with shareholder oppression. In fact, unlike the majority of jurisdictions, “oppression” is not a
stated basis for relief under Florida’s dissolution statute. No Florida case explicitly recognizes the shareholder oppression cause of action
or buy-out remedy. However, a close examination of the reported cases in Florida strongly indicate that Florida courts would recognize a
cause of action for shareholder oppression and would apply the buy-out remedy.
The only reported opinion to discuss expressly a claim for shareholder oppression under Florida law is Hodges v. Buzzeo, 193 F.Supp.2d
1279 (M.D. Fla. 2002). In that case, the majority shareholder of a Pennsylvania corporation entered into an agreement to sell the bulk of
his shares, thus becoming a minority shareholder. The new majority shareholder later sued the now-minority shareholder for fraud in
connection with that sale, and the minority shareholder counterclaimed for shareholder oppression. Apparently, everything happened in
Florida, so the District Court considered both Pennsylvania and Florida law in ruling on a motion to dismiss the counterclaim. The majority
shareholder argued that there was no cause of action for shareholder oppression in Florida. Without discussion, the District Court
accepted that proposition, but countered that minority shareholders did have a cause of action for breach of fiduciary duties against majority
shareholder. 193 F.Supp.2d at 1288 (citing Tillis v. United Parts, Inc., 395 So.2d 618, 619 (Fla. App. 5th Dist. 1981). The Court
characterized the pleading of “shareholder oppression” as a “misnomer.” Id. Nevertheless, the court dismissed the counterclaim on the
grounds that the minority shareholder had alleged derivative rather than direct claims. Id. at 1289. The specific wrongdoing alleged was
mismanagement resulting in loss of value of the shares, stripping assets of the corporation, and misappropriating those assets for personal
gain. While the minority shareholder alleged that this misconduct was “taken in an effort to oppress the other Company shareholders,” the
District Court held that the pleadings alleged only breaches of duty to the corporation and only indirect injury to the minority shareholder,
therefore the claims had to be brought derivatively. Id. (citing Alario v. Miller, 354 So.2d 925, 927 (Fla. App. 2nd Dist. 1978). However, the
court did permit the minority shareholder to replead the claims to state direct injury.
Despite the absence of any express discussion in Florida case law, an careful examination of the common law governing treatment of
minority shareholders in Florida strongly indicates that Florida would recognize the shareholder oppression cause of action and apply the
shareholder oppression doctrine consistent with the majority of the other jurisdictions. Generally, jurisdictions that have recognized the
shareholder oppression cause of action and the buy‐out remedy base the existence of such a remedy on fiduciary duties owed by
controlling shareholders directly to minority shareholders. Florida courts have held that such duties exist under Florida law. See Orlinsk v.
Patraka, 971 So. 2d 796, 801 (Fla. App. 3rd Dist. 2007); Zold v. Zold, 880 So.2d 779, 781 (Fla. App. 5th Dist. 2004); Mortellite v. American
Tower, L.P., 819 So.2d 928, 934 (Fla. App. 2nd Dist. 2002); Cohen v. Hattaway, 505 So.2d 105, 107 (Fla. App. 5th Dist. 1992); Biltmore
Motor Corp. v. Roque, 291 So.2d 114, 115 (Fla. App. 3rd Dist. 1974); Watson v. Khachab, 334 So.2d 78, 79 (Fla. App. 3rd Dist. 1976);
Hodges v. Buzzeo, 193 F.Supp.2d 1279, 1288 (M.D. Fla. 2002); Everdell v. Preston, 717 F.Supp. 1498, 1501 (M.D.Fla. 1989).
In Tillis v. United Parts, Inc., 395 So2d 618 (Fla. App. 5th Dist. 1981), the minority shareholders sued the majority shareholders for having
caused the corporation to buy back stock from the majority owners at an inflated price, where the same offer was not made to minority
shareholders. The court held that the transaction was essentially a preferential dividend to the majority shareholders and violated fiduciary
duties to the minority shareholders. Id. at 620‐21. “Corporate directors owe a fiduciary obligation to the corporation and to the stockholders
and must act in good faith and in the best interests of the corporation.” Id. at 620 (citing Orlando Orange Groves Co. v. Hale, 107 Fla. 304,
144 So. 674 (1932); Chipola Valley Realty Co. v. Griffin, 94 Fla. 1151, 115 So. 541 (1927); Etheredge v. Barrow, 102 So.2d 660 (Fla. 2d
DCA 1958)). “Corporate officers, controlling the corporation through ownership of a majority of the stock, have a fiduciary relation to
minority stockholders.” Id. at 620. The court of appeals reversed the dismissal of the plaintiffs’ claims, holding that the plaintiffs had stated
claims for both breach of fiduciary duties to the corporation and for breach of fiduciary duties “as majority stockholders to not utilize their
control of the corporation to their advantage as against the minority stockholders.” Id.
The buy‐out remedy was developed in other jurisdictions based on the court of equity’s inherent power to fashion a remedy. Equity will not
suffer a wrong to go without a remedy. Farrington v. Flood, 40 So.2d 462, 465 (Fla. 1949). In many other states, the buy‐out remedy has
been developed where the corporations statute provides a dissolution remedy for “oppression,” and the courts exercise their inherent
authority to fashion a less harsh remedy, such as a buy-out. See, e.g., Davis v. Sheerin, 754 S.W.2d 375, 380 (Tex. App.—Houston [1st
Dist.] 1988, writ denied). Unlike the business corporations laws of most states, the Florida dissolution statute, FSA §607.1430, lists
misapplication of assets or waste as ground for dissolution, but does not mention oppression. However, Nevada corporation statute also
omits oppression, and the Fifth Circuit nevertheless held that the shareholder oppression cause of action, including the buy‐out remedy,
would exist under Nevada common law. Hollis v. Hill, 232 F.3d 460, 468 (5th Cir. 2000). Furthermore, in Finn Bondholders v. Dukes, 26 So.
2d 802, 803 (Fla. 1946), the Florida Supreme Court held that dissolution of a corporation was too drastic a remedy for minority
shareholders’ claims that the majority shareholder was looting the corporation. However, the court expressly stated that Florida courts have
the “inherent power to redress such wrong” though other remedies. Id.
In Tillis v. United Parts, Inc., 395 So.2d at 620, the court of appeals cited with approval and as authoritative the case of Donahue v. Rodd
Electrotype Company of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975). This is significant because Donahue is the leading
shareholder oppression case in the country and imposed a buy‐out remedy.
In Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139 (Fla. App. 4th Dist. 2008), the court of appeals affirmed the imposition of a buy‐out
remedy. In that case, there was an agreement between the two founders of a corporation that they would each receive 50% of the shares.
One of the founders handled the incorporation and issued himself all of the shares. Thereafter, he refused to issue shares to the other
founder and ultimately fired him. The ousted founder sued for a declaratory judgment that he was a shareholder and for involuntary
dissolution and for breach of fiduciary duties. The trial court found that the plaintiff was a 50% shareholder. The trial court awarded the
plaintiff 50% of the distributions that the other shareholder had taken out of the corporation since inception and awarded him almost $2
million for the value of his shares. Although the relief requested was dissolution, the court did not order the corporation dissolved; rather the
court ordered the defendant to purchase the plaintiff’s shares for the value found by the court and imposed a constructive trust on all the
shares of the corporation until the purchase was accomplished. The court of appeals affirmed in all respects. Although this case was not
called an oppression case, that is clearly what it was.
Two recent cases involving the appraisal remedy also recognize that, in the corporate context, the court has the equitable power to fashion
remedies that go beyond the statute. Specifically, in these cases, the courts held that courts have the equitable power to grant remedies in
addition to the statutory appraisal where the plaintiff can prove that the transaction involved unfairness to a minority shareholder. See
Foreclosure Freesearch, Inc. v. Sullivan, 12 So.3d 771 (Fla. App. 4th Dist. 2009); Williams v. Stanford, 977 So.2d 722 (Fla. App. 1st Dist.
2008). Additionally, dicta in Erp v. Erp, 976 So.2d 1234, 1238 (Fla. App. 2nd Dist. 2008), notes the Florida public policy of protecting
minority shareholders against oppression at the hands of majority shareholders.
The court’s opinion in Williams v. Stanford relies heavily on Delaware cases stressing the power of courts to fashion equitable remedies.
977 So.2d at 728‐30. The court notes that “Delaware case law provides guidance to our construction of the statute.” Id. at 727. Given the
deference that Florida courts give Delaware corporate law, it might be argued that Florida would not recognize the shareholder oppression
cause of action because Delaware rejected it in Nixon v. Blackwell, 626 A.2d 1366 (Del. 1993). However, this argument involves a common
misreading of the Nixon opinion and is completely unwarranted. The Nixon court did reject the reasoning of the Donahue opinion that
shareholders In a closely‐held corporation owed heightened fiduciary duties to each other; however, the Nixon opinion agreed that majority
shareholders do owe fiduciary duties to minority shareholders and held that the breach of those duties must be addressed under the
Delaware “entire fairness” standard for breach of fiduciary duties rather than by creating a separate cause of action for shareholder
oppression. The Fifth Circuit rejected this same argument when attempted with regard to Nevada law in Hollis v. Hill, 232 F.3d at 469. Many
courts applying Delaware law since Nixon have held that Delaware law provides a remedy for oppressive conduct. See Sokol v. Ventures
Educational Sys. Corp., 809 N.Y.S.2d 484 (N.Y. Sup. 2005); Reserve Solutions, Inc. v. Vernaglia, 438 F.Supp.2d 280 (S.D.N.Y. 2006); Minor
v. Albright, 2002 WL 1516729 (N.D. Ill. 2001); see also Litle v. Waters, 1992 WL 25758 (Del. Ch. 1992).
of limited liability companies who are “squeezed out” or otherwise have their rights and interests so totally ignored and violated that their
ownership interest is essentially taken from them by those in control of the corporation. Typical facts include firing a shareholder/employee
and thus eliminating his ability to get an economic return on his investment and excluding him from participation in management, denying
that the he is a shareholder; manipulating the corporate finances to give preferential dividends to the controlling members at the expense of
the minority; withholding information and violation of inspection rights. The test is generally stated that the conduct of those in control of the
corporation has “substantially defeated the objectively reasonable expectations of the minority shareholder” with respect to the rights,
benefits and status as a shareholder. Establishing the existence of oppression is done through proving a continuing pattern of oppressive
conduct. The remedy is usually a court‐ordered buy‐out of the minority shareholder for the fair value of his shares as determined by the
court. The remedy is similar to the appraisal process used in the context of dissenter’s rights, such as in a cash-out merger, but there is no
offer or counteroffer, and the finder of fact (judge or jury), not an appointed appraiser, usually determines the value. Generally, the legal
basis of the shareholder oppression claim is a fiduciary duty that a controlling shareholder owes to a minority shareholder (as distinct that
those duties owed to the corporation). These cases are often brought with derivative claims (i.e., claims belonging to the corporation for the
breach of duties owed to the corporation, which are asserted by the minority shareholder on behalf of the corporation) because the same
conduct can be often result both in oppression of a minority shareholder and a violation of the duty of loyalty to the corporation. However,
shareholder oppression is a direct claim belonging to the minority shareholder individually. When the plaintiff prevails on both the derivative
claims and the oppression claims, then the court must fashion a remedy that takes both into account—usually, by awarding damages to the
corporation and ordering a distribution or by ordering the damages be paid directly to the shareholders or by adjusting the valuation of
plaintiff’s shares upward to account for the value of the corporate asset represented by the derivative claim. The leading cases developing
this cause of action are as follows: Donahue v. Rodd Electrotype Co., 328 N.E. 505 (Mass. 1975); Matter of Wiedy’s Furniture Clearance
Center, 487 N.Y.S.2d 901 (N.Y. App. 1985); McCauley v. Tom McCauley & Son, Inc., 724 P.2d 232 (N.M. App. 1986); Davis v. Sheerin, 754
S.W.2d 375 (Tex. App.—Houston [1st Dist] 1988, writ denied); Hollis v. Hill, 232 F.3d 460 (5th Cir. 2000).
Would Florida Courts Recognize the Shareholder Oppression Cause of Action and the Buy-Out Remedy?
Florida has no statutory provisions dealing with shareholder oppression. In fact, unlike the majority of jurisdictions, “oppression” is not a
stated basis for relief under Florida’s dissolution statute. No Florida case explicitly recognizes the shareholder oppression cause of action
or buy-out remedy. However, a close examination of the reported cases in Florida strongly indicate that Florida courts would recognize a
cause of action for shareholder oppression and would apply the buy-out remedy.
The only reported opinion to discuss expressly a claim for shareholder oppression under Florida law is Hodges v. Buzzeo, 193 F.Supp.2d
1279 (M.D. Fla. 2002). In that case, the majority shareholder of a Pennsylvania corporation entered into an agreement to sell the bulk of
his shares, thus becoming a minority shareholder. The new majority shareholder later sued the now-minority shareholder for fraud in
connection with that sale, and the minority shareholder counterclaimed for shareholder oppression. Apparently, everything happened in
Florida, so the District Court considered both Pennsylvania and Florida law in ruling on a motion to dismiss the counterclaim. The majority
shareholder argued that there was no cause of action for shareholder oppression in Florida. Without discussion, the District Court
accepted that proposition, but countered that minority shareholders did have a cause of action for breach of fiduciary duties against majority
shareholder. 193 F.Supp.2d at 1288 (citing Tillis v. United Parts, Inc., 395 So.2d 618, 619 (Fla. App. 5th Dist. 1981). The Court
characterized the pleading of “shareholder oppression” as a “misnomer.” Id. Nevertheless, the court dismissed the counterclaim on the
grounds that the minority shareholder had alleged derivative rather than direct claims. Id. at 1289. The specific wrongdoing alleged was
mismanagement resulting in loss of value of the shares, stripping assets of the corporation, and misappropriating those assets for personal
gain. While the minority shareholder alleged that this misconduct was “taken in an effort to oppress the other Company shareholders,” the
District Court held that the pleadings alleged only breaches of duty to the corporation and only indirect injury to the minority shareholder,
therefore the claims had to be brought derivatively. Id. (citing Alario v. Miller, 354 So.2d 925, 927 (Fla. App. 2nd Dist. 1978). However, the
court did permit the minority shareholder to replead the claims to state direct injury.
Despite the absence of any express discussion in Florida case law, an careful examination of the common law governing treatment of
minority shareholders in Florida strongly indicates that Florida would recognize the shareholder oppression cause of action and apply the
shareholder oppression doctrine consistent with the majority of the other jurisdictions. Generally, jurisdictions that have recognized the
shareholder oppression cause of action and the buy‐out remedy base the existence of such a remedy on fiduciary duties owed by
controlling shareholders directly to minority shareholders. Florida courts have held that such duties exist under Florida law. See Orlinsk v.
Patraka, 971 So. 2d 796, 801 (Fla. App. 3rd Dist. 2007); Zold v. Zold, 880 So.2d 779, 781 (Fla. App. 5th Dist. 2004); Mortellite v. American
Tower, L.P., 819 So.2d 928, 934 (Fla. App. 2nd Dist. 2002); Cohen v. Hattaway, 505 So.2d 105, 107 (Fla. App. 5th Dist. 1992); Biltmore
Motor Corp. v. Roque, 291 So.2d 114, 115 (Fla. App. 3rd Dist. 1974); Watson v. Khachab, 334 So.2d 78, 79 (Fla. App. 3rd Dist. 1976);
Hodges v. Buzzeo, 193 F.Supp.2d 1279, 1288 (M.D. Fla. 2002); Everdell v. Preston, 717 F.Supp. 1498, 1501 (M.D.Fla. 1989).
In Tillis v. United Parts, Inc., 395 So2d 618 (Fla. App. 5th Dist. 1981), the minority shareholders sued the majority shareholders for having
caused the corporation to buy back stock from the majority owners at an inflated price, where the same offer was not made to minority
shareholders. The court held that the transaction was essentially a preferential dividend to the majority shareholders and violated fiduciary
duties to the minority shareholders. Id. at 620‐21. “Corporate directors owe a fiduciary obligation to the corporation and to the stockholders
and must act in good faith and in the best interests of the corporation.” Id. at 620 (citing Orlando Orange Groves Co. v. Hale, 107 Fla. 304,
144 So. 674 (1932); Chipola Valley Realty Co. v. Griffin, 94 Fla. 1151, 115 So. 541 (1927); Etheredge v. Barrow, 102 So.2d 660 (Fla. 2d
DCA 1958)). “Corporate officers, controlling the corporation through ownership of a majority of the stock, have a fiduciary relation to
minority stockholders.” Id. at 620. The court of appeals reversed the dismissal of the plaintiffs’ claims, holding that the plaintiffs had stated
claims for both breach of fiduciary duties to the corporation and for breach of fiduciary duties “as majority stockholders to not utilize their
control of the corporation to their advantage as against the minority stockholders.” Id.
The buy‐out remedy was developed in other jurisdictions based on the court of equity’s inherent power to fashion a remedy. Equity will not
suffer a wrong to go without a remedy. Farrington v. Flood, 40 So.2d 462, 465 (Fla. 1949). In many other states, the buy‐out remedy has
been developed where the corporations statute provides a dissolution remedy for “oppression,” and the courts exercise their inherent
authority to fashion a less harsh remedy, such as a buy-out. See, e.g., Davis v. Sheerin, 754 S.W.2d 375, 380 (Tex. App.—Houston [1st
Dist.] 1988, writ denied). Unlike the business corporations laws of most states, the Florida dissolution statute, FSA §607.1430, lists
misapplication of assets or waste as ground for dissolution, but does not mention oppression. However, Nevada corporation statute also
omits oppression, and the Fifth Circuit nevertheless held that the shareholder oppression cause of action, including the buy‐out remedy,
would exist under Nevada common law. Hollis v. Hill, 232 F.3d 460, 468 (5th Cir. 2000). Furthermore, in Finn Bondholders v. Dukes, 26 So.
2d 802, 803 (Fla. 1946), the Florida Supreme Court held that dissolution of a corporation was too drastic a remedy for minority
shareholders’ claims that the majority shareholder was looting the corporation. However, the court expressly stated that Florida courts have
the “inherent power to redress such wrong” though other remedies. Id.
In Tillis v. United Parts, Inc., 395 So.2d at 620, the court of appeals cited with approval and as authoritative the case of Donahue v. Rodd
Electrotype Company of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975). This is significant because Donahue is the leading
shareholder oppression case in the country and imposed a buy‐out remedy.
In Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139 (Fla. App. 4th Dist. 2008), the court of appeals affirmed the imposition of a buy‐out
remedy. In that case, there was an agreement between the two founders of a corporation that they would each receive 50% of the shares.
One of the founders handled the incorporation and issued himself all of the shares. Thereafter, he refused to issue shares to the other
founder and ultimately fired him. The ousted founder sued for a declaratory judgment that he was a shareholder and for involuntary
dissolution and for breach of fiduciary duties. The trial court found that the plaintiff was a 50% shareholder. The trial court awarded the
plaintiff 50% of the distributions that the other shareholder had taken out of the corporation since inception and awarded him almost $2
million for the value of his shares. Although the relief requested was dissolution, the court did not order the corporation dissolved; rather the
court ordered the defendant to purchase the plaintiff’s shares for the value found by the court and imposed a constructive trust on all the
shares of the corporation until the purchase was accomplished. The court of appeals affirmed in all respects. Although this case was not
called an oppression case, that is clearly what it was.
Two recent cases involving the appraisal remedy also recognize that, in the corporate context, the court has the equitable power to fashion
remedies that go beyond the statute. Specifically, in these cases, the courts held that courts have the equitable power to grant remedies in
addition to the statutory appraisal where the plaintiff can prove that the transaction involved unfairness to a minority shareholder. See
Foreclosure Freesearch, Inc. v. Sullivan, 12 So.3d 771 (Fla. App. 4th Dist. 2009); Williams v. Stanford, 977 So.2d 722 (Fla. App. 1st Dist.
2008). Additionally, dicta in Erp v. Erp, 976 So.2d 1234, 1238 (Fla. App. 2nd Dist. 2008), notes the Florida public policy of protecting
minority shareholders against oppression at the hands of majority shareholders.
The court’s opinion in Williams v. Stanford relies heavily on Delaware cases stressing the power of courts to fashion equitable remedies.
977 So.2d at 728‐30. The court notes that “Delaware case law provides guidance to our construction of the statute.” Id. at 727. Given the
deference that Florida courts give Delaware corporate law, it might be argued that Florida would not recognize the shareholder oppression
cause of action because Delaware rejected it in Nixon v. Blackwell, 626 A.2d 1366 (Del. 1993). However, this argument involves a common
misreading of the Nixon opinion and is completely unwarranted. The Nixon court did reject the reasoning of the Donahue opinion that
shareholders In a closely‐held corporation owed heightened fiduciary duties to each other; however, the Nixon opinion agreed that majority
shareholders do owe fiduciary duties to minority shareholders and held that the breach of those duties must be addressed under the
Delaware “entire fairness” standard for breach of fiduciary duties rather than by creating a separate cause of action for shareholder
oppression. The Fifth Circuit rejected this same argument when attempted with regard to Nevada law in Hollis v. Hill, 232 F.3d at 469. Many
courts applying Delaware law since Nixon have held that Delaware law provides a remedy for oppressive conduct. See Sokol v. Ventures
Educational Sys. Corp., 809 N.Y.S.2d 484 (N.Y. Sup. 2005); Reserve Solutions, Inc. v. Vernaglia, 438 F.Supp.2d 280 (S.D.N.Y. 2006); Minor
v. Albright, 2002 WL 1516729 (N.D. Ill. 2001); see also Litle v. Waters, 1992 WL 25758 (Del. Ch. 1992).
| Last Updated: 2/23/2011 |