applying Delaware lawSummary of this case from In re Summit Metals, Inc.
Docket Nos. 139788, 141390.
Submitted October 5, 1993, at Grand Rapids.
Decided January 19, 1994, at 9:00 A.M.
Miller, Canfield, Paddock Stone (by Robert D. VanderLaan and Gary E. Mitchell), for Rapistan Corporation and Lear Siegler Holdings Corporation.
Varnum, Riddering, Schmidt Howlett (by Thomas J. Mulder, Stephen P. Afendoulis and N. Stevenson Jennette, III), for William R. Michaels, Michael J. Tilton, and Stephen J. O'Neill.
Gruel, Mills, Nims Pylman (by Grant J. Gruel), for Alvey Holdings, Inc.
These consolidated appeals involve a claim of usurpation of a corporate opportunity by the former management of plaintiff Rapistan Corporation. Plaintiffs Rapistan and Lear Siegler Holdings Corporation appeal as of right from a March 25, 1991, order and final judgment of no cause of action in favor of defendants William R. Michaels, Michael J. Tilton, Stephen J. O'Neill, and Alvey Holdings, Inc., and from a May 13, 1991, order and judgment requiring plaintiffs to pay costs in the amount of $35,300.05. We affirm.
In January 1987, Lear Siegler Holdings, a Delaware corporation, acquired Lear Siegler and its subsidiaries, which included Rapistan. Rapistan, also a Delaware corporation, is one of the nation's largest manufacturers and sellers of materials-handling conveyor equipment and systems. Rapistan's marketing focus is the warehouse-distribution market. At the time of the acquisition of Rapistan by Lear Siegler Holdings, Michaels, Tilton, and O'Neill were part of the management team at Rapistan. Specifically, Michaels was the president and chief executive officer of Rapistan. He also became a shareholder in Lear Siegler Holdings. Tilton served as the vice president of finance for Rapistan. O'Neill served as the vice president of marketing and sales. Michaels, Tilton, and O'Neill resigned their positions at Rapistan on September 6, 1988. The following day, the three former Rapistan executives signed employment agreements with Alvey Holdings, Inc., a corporation created by Raebarn, Inc., a merchant bank that arranges leveraged buyouts on its own behalf and on behalf of other investors, for the purpose of acquiring Alvey, Inc., a manufacturer of both conveyors and pallitizers. A pallitizer is a machine that stacks a uniform package into layers on a pallet for further conveyance or distribution. Approximately two-thirds of Alvey's business is the manufacture and sale of conveyors. The remaining one-third of Alvey's business is the manufacture and sale of pallitizers. A pallitizer has no application in the warehouse-distribution sector of the conveyor market. Instead, a pallitizer is used in the industrial sector of the market, in such industries as food, beverage, and paper manufacturing. Raebarn and its investors acquired Alvey on August 26, 1988. At the time of trial, Michaels served as the president, chief executive officer, and chairman of the board of Alvey and Alvey Holdings. Tilton served as the chief financial officer of Alvey. O'Neill served as the senior vice president of sales and marketing at Alvey.
After learning of the involvement of the three former Rapistan executives with Raebarn and the acquisition of Alvey, the degree of which was contested at trial, Lear Siegler Holdings and Rapistan filed a complaint against Michaels, Tilton, O'Neill and several other individuals, who are not parties to the instant appeals, in the circuit court, seeking monetary damages and injunctive, declaratory, and other equitable relief. The complaint contained allegations that the former Rapistan executives breached their fiduciary duties owed to Rapistan, misappropriated a Rapistan corporate opportunity, and misappropriated and misused confidential Rapistan information. Additionally, Lear Siegler Holdings and Rapistan sought to nullify a stock subscription agreement between Michaels and Lear Siegler Holdings, pursuant to which Michaels had acquired the opportunity to purchase 825 shares of Class B common stock in Lear Siegler Holdings. This complaint was subsequently amended to add Alvey Holdings as a defendant and to allege that Alvey Holdings aided and abetted and conspired with the former Rapistan executives in the breach of the fiduciary duties owed by the executives to Rapistan.
The trial court rejected the claims of Lear Siegler Holdings and Rapistan in an opinion delivered from the bench on February 20, 1991. Specifically, the court found that Michaels, Tilton, and O'Neill learned that Alvey was for sale in their capacities as individuals, not in their capacities as Rapistan managers, that the acquisition of Alvey was not essential to Rapistan, that there was no credible evidence that Rapistan had an expectation in Alvey, that Michaels, Tilton, and O'Neill had not embarked sufficient Rapistan corporate assets on the Alvey venture to require the intervention of equity to estop the executives from denying that Alvey was a Rapistan corporate opportunity, and that Lear Siegler Holdings and Rapistan had no cause of action against defendants. The court also found that Michaels, Tilton, and O'Neill were entitled to costs from Lear Siegler Holdings and Rapistan. These appeals followed.
We conclude that the trial court correctly chose to apply the Guth Corollary, as originally formulated in Guth v Loft, Inc, 23 Del. Ch. 255; 5 A.2d 503 (1939), and not the corollary as restated in Equity Corp v Milton, 43 Del. Ch. 160; 221 A.2d 494 (1966). We also conclude that the trial court correctly applied the law to the facts as presented and correctly determined that Michaels, Tilton, and O'Neill did not divert a corporate opportunity belonging to Lear Siegler Holdings and Rapistan to their personal use.
We review questions of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass'n, 437 Mich. 75, 80; 467 N.W.2d 21 (1991). The parties agree that the resolution of the questions before us with regard to application of the corporate opportunity doctrine is controlled by Delaware law.
The seminal Delaware case regarding the doctrine of corporate opportunity is Guth, supra. The general principles of the corporate opportunity doctrine announced in Guth have since been referred to as the Guth Rule and the Guth Corollary. The Guth Rule provides:
[I]f there is presented to a corporate officer or a director a business opportunity which the corporation is financially able to undertake, is, from its nature, in the line of the corporation's business and is of practical advantage to it, is one in which the corporation has an interest or a reasonable expectancy, and, by embracing the opportunity, the self-interest of the officer or director will be brought into conflict with that of his corporation, the law will not permit him to seize the opportunity for himself. [ 23 Del. Ch. 272-273.]
On the other hand, the Guth Corollary provides:
It is true that when a business opportunity comes to a corporate officer or director in his individual capacity rather than in his official capacity, and the opportunity is one which, because of the nature of the enterprise, is not essential to his corporation, and is one in which it has no interest or expectancy, the officer or director is entitled to treat the opportunity as his own, and the corporation has no interest in it if, of course, the officer or director has not wrongfully embarked the corporation's resources therein. [ 23 Del. Ch. 271.]
In the present case, the trial court, relying on Guth, concluded that the test for determining whether the nature of the opportunity presented by Alvey was corporate depended on whether the opportunity was first presented to Michaels, Tilton, and O'Neill in their capacities as individuals or as corporate representatives. Accordingly, the court began its analysis by examining the record evidence to determine whether the opportunity was presented to Michaels, Tilton, and O'Neill, individually. Plaintiffs argue that the trial court erred as a matter of law when it looked to the capacities of the former Rapistan executives rather than to the nature of the opportunity presented. We disagree.
Plaintiffs base their argument on the Delaware Supreme Court's restatement of the Guth Corollary in Equity Corp v Milton, 43 Del. Ch. 160; 221 A.2d 494 (1966). The court in Equity Corp paraphrased the Guth Corollary as follows:
A corollary of the Guth rule is that when a business opportunity comes to a corporate officer, which, because of the nature of the opportunity, is not one which is essential or desirable for his corporation to embrace, being an opportunity in which it has no actual or expectant interest, the officer is entitled to treat the business opportunity as his own and the corporation has no interest in it, provided the officer has not wrongfully embarked the corporation's resources in order to acquire the business opportunity. [ 43 Del. Ch. 164.]
A comparison of the language employed in the original expression of the corollary with the language employed in the Equity Corp court's paraphrasing of the corollary reveals that the Equity Corp court omitted the phrase "in his individual capacity rather than in his official capacity," from the original text of the corollary. Compare Guth, supra at 271, with Equity Corp, supra at 164. Plaintiffs rely on the absence of language concerning individual capacity to support their assertions that the Delaware Supreme Court has rethought and rejected the requirement that a court must determine whether the business opportunity came to the corporate officer in the officer's individual or corporate representative capacity and that the trial court in the present case erred as a matter of law when it concluded that the capacity in which the corporate officer first became aware of the opportunity determines whether the Guth Rule or the Guth Corollary applies.
We reject the argument that Equity Corp announced the abandonment of the individual capacity versus corporate representative capacity distinction of the Guth Corollary, as originally expressed by the Guth court, for the following reasons. First, the Equity Corp court never expressly repudiated the capacity distinction found in the original formulation of the Guth Corollary. To the contrary, the court expressly observed that the law with regard to corporate opportunity was settled in Delaware by Guth, supra, and Greene, supra. Equity Corp, supra at 164. Second, the Equity Corp court resolved the issues before it by application of the Guth Rule, not the Guth Corollary. Accordingly, the Equity Corp court's restatement of the Guth Corollary constitutes nonbinding dictum. Third, and most important, the Delaware Supreme Court, some five years after its decision in Equity Corp, revisited the corporate opportunity doctrine and applied the Guth Corollary as originally expressed in Guth, specifically relying on the individual versus corporate representative capacity distinction. Kaplan v Fenton, 278 A.2d 834, 836 (Del, 1971).
Given the continued vitality of the Guth Corollary as originally expressed in Guth, supra at 271, after Equity Corp, as demonstrated by Kaplan, supra at 836, we reach the following conclusions with regard to the corporate opportunity doctrine. First, a court, when determining whether a business opportunity is a corporate opportunity, must ascertain whether the opportunity was presented to a corporate officer in the officer's individual or representative capacity. Second, after determining the manner in which the opportunity was presented, the court must determine the nature of the opportunity. Third, the nature of the opportunity is analyzed differently, depending on whether the opportunity is presented to a corporate official in the official's individual or corporate representative capacity. Guth, supra at 271-280. Accordingly, we cannot say that the trial court committed legal error when it concluded that Delaware law required it to consider the capacity of the corporate officer at the time of the presentation of the opportunity as a factor in determining whether a corporate opportunity existed and when it concluded that Delaware law required it to view the nature of the opportunity in light of the capacity of the corporate officer when the opportunity was received.
We also cannot say that the trial court erred as a matter of law in its application of the law to the facts as presented at trial. We reject plaintiffs' assertion that the trial court erred as a matter of law when it failed to consider whether the acquisition of Alvey was desirable to Rapistan and when the court failed to recognize that its factual findings established the desirability of Alvey's acquisition by Rapistan. The Guth Corollary contains no requirement that the trial court examine the desirability of the opportunity. Guth, supra at 271.
We also reject the assertion that the trial court erred as a matter of law when it found that the opportunity to acquire Alvey was not "essential" to Rapistan. After reviewing the record evidence and the trial court's findings, we conclude that, although plaintiffs are correct in their belief that the business of Alvey was related to the business of Rapistan, the acquisition of Alvey was not so indispensably necessary to the conduct of the business of Rapistan that the deprivation of the acquisition threatened the viability of Rapistan. Johnston, supra at 485-486; Alexander Alexander of New York, Inc v Fritzen, 147 A.D.2d 241, 248; 542 N.Y.S.2d 530 (1989); Black's Law Dictionary (5th ed), p 490.
We further reject the assertion that the trial court erred as a matter of law when it failed to recognize that its factual findings demonstrated that Rapistan had an expectation or interest in the acquisition of Alvey. We cannot conclude, after reviewing the trial court's findings, that those findings establish that Rapistan had any urgent or practical need to acquire Alvey, Guth, supra at 279, or that the acquisition of Alvey fit into an established corporate policy or into the particular business focus of Rapistan, Equity Corp, supra at 164. See also Alexander, supra at 247-248.
We reject plaintiffs' assertion that the trial court substituted its judgment with regard to how important the Alvey acquisition would have been to Rapistan, thereby effectively adopting the claim of Michaels, Tilton, and O'Neill that Rapistan would not have been interested in the opportunity to acquire Alvey had they brought the opportunity to the attention of Rapistan and Lear Siegler Holdings. While it may be true that the best method for determining whether an opportunity is a corporate opportunity is to allow the corporation to decide at the time the opportunity is fully disclosed, see 3 Fletcher, Cyclopedia Corporations, § 861.1, p 288, it does not follow from this truth that all a corporation claiming that an opportunity was usurped need do to establish the claim is assert that, had an opportunity been disclosed, it would have seized the opportunity. Where a claim is raised that a corporate opportunity has been usurped, the claim is one for the trial court to resolve by reasonable inferences drawn from objective facts. Johnston, supra at 485-486; Guth, supra at 277. In the present case, the trial court examined the law of corporate opportunity, made findings of fact, applied the law to the facts as found, and reached a conclusion with regard to whether a corporate opportunity existed. It was required to do no less. Our review of the trial court's opinion does not support plaintiffs' characterization of the court's decision.
Lastly, we reject the assertion that the trial court erred in relying on the decision of the Maryland Court of Appeals in Maryland Metals, Inc v Metzner, 282 Md. 31; 382 A.2d 564 (1978). Plaintiffs' assertion is premised on two conclusions reached by plaintiffs: first, that Maryland Metals is factually inapposite because the case was a preparation-to-compete case where no usurpation of a corporate opportunity existed, whereas the present case is not a preparation-to-compete case and a usurpation of a corporate opportunity did occur; and second, that the trial court employed Maryland Metals to defeat plaintiffs' claim of usurpation of a corporate opportunity. Plaintiffs' conclusions are ill-founded for two reasons. First, our review of the trial court's opinion indicates that the court applied Delaware law concerning the doctrine of corporate opportunity to determine whether Michaels, Tilton, and O'Neill had usurped a corporate opportunity. The court did not rely on Maryland Metals to the exclusion of applicable Delaware law. Second, the corporate opportunity doctrine is frequently intertwined, sometimes inextricably, with the legal concept of fiduciary duty, see e.g., Guth, supra at 280; Science Accessories Corp v Summagraphics Corp, 425 A.2d 957, 962-964 (Del, 1980). In fact, plaintiffs' own complaint demonstrates this point. The complaint alleges both a misappropriation of a corporate opportunity and a breach of fiduciary duty premised on alleged activities undertaken by Michaels, Tilton, and O'Neill while employed by Rapistan. Accordingly, plaintiffs placed before the trial court not only the question whether a corporate opportunity existed, but also whether the former Rapistan corporate officers engaged in conduct that violated fiduciary duties owed Rapistan during their employment with Rapistan. Further, from the beginning, Michaels, Tilton, and O'Neill denied that they breached their fiduciary duties in any manner and characterized their actions as actions taken in preparation and furtherance of an employment opportunity. Given this factual background and given that Maryland Metals contains a well-developed discussion of the extent to which a corporate officer, before the termination of an employment relationship, may make preparations to compete with the corporate employer without violating fiduciary duties owed to the corporation, we conclude that the trial court properly sought guidance from Maryland Metals.
We conclude that the trial court did not err as a matter of law when it failed to find that the use of Rapistan corporate resources by Michaels, Tilton, and O'Neill to further the Alvey opportunity estopped the trio from denying that the acquisition of Alvey was a Rapistan corporate opportunity. The record evidence fails to establish a sufficient application of corporate assets to merit intervention as a matter of equity.
Even though a business opportunity may not constitute a corporate opportunity under the conventional tests employed in determining whether a corporate opportunity exists, a corporate representative will be estopped nevertheless from denying that the business opportunity was a corporate opportunity if the representative wrongfully embarked the corporation's assets in the development or acquisition of the business opportunity. Guth, supra at 271. Equity Corp, supra at 164; 3 Fletcher, Cyclopedia Corporations, § 861.1, p 287. "This is because the fiduciary is seen as having previously asserted to the corporation that the opportunity was worth pursuing, and as an equitable matter the fiduciary will not be allowed to deny the truth of his prior assertion." Id. The rationale behind this equitable rule was explained in greater detail in Graham v Mimms, 111 Ill. App.3d 751, 763-764; 67 Ill Dec 313; 444 N.E.2d 549 (1982), as follows:
Nevertheless, the "core principle" of the corporate opportunity doctrine is that a corporation's fiduciary will not be permitted to usurp a business opportunity which was developed through the use of corporate assets. (Brundney and Clark, 94 Harv L Rev 997, 1006 .) "The principle rests on the same considerations that forbid appropriations of the assets themselves, but adds the remedy of tracing the misappropriated assets into their product — a conventional remedy in the law of trusts." (94 Harv L Rev 997, 1007.) Therefore, when a corporation's fiduciary uses corporate assets to develop a business opportunity, the fiduciary is estopped from denying that the resulting opportunity belongs to the corporation whose assets were misappropriated, even if it was not feasible for the corporation to pursue the opportunity or it had no expectancy in the project.
As the court explained in In Re Trim-Lean Meat Products, Inc (D Del 1980) 4 Bankr L Rep 243, 247:
"[T]he proscription against appropriation of corporate property for private gain is of broader application than the corporate opportunity rule. The latter is but a specialized application of the former. It essentially treats a corporation's expectations regarding certain business opportunities which are in the corporation's line of business and of practical advantage to it as corporate property which may not be appropriated for personal gain. On the other hand, the general proscription against misapplication of corporate funds applies equally to business opportunities outside the corporation's line of business. Thus, a business opportunity falling outside a corporation's line of business and which would not otherwise be considered a corporate opportunity, nevertheless will be deemed a corporate opportunity if developed or financed with corporate funds."
The purpose of the equitable estoppel doctrine is to prevent fraud and injustice ( Dill v Widman [ 413 Ill. 448, 456; 109 N.E.2d 765, 769 (1952)]) by precluding a litigant from denying the truth of prior assertions ( Mills v Graves [ 38 Ill. 456, 464 (1865)]), on which another litigant has relied. ( Dill v Widman [ 413 Ill. 448, 455-56; 109 N.E.2d 765, 769 (1952)].)
A fiduciary's compensated time is regarded as a corporate asset; accordingly, the rule of estoppel applies to a person who uses "company" time to develop a business opportunity. Likewise, use of the compensated time of other corporate employees triggers an application of the estoppel doctrine. Graham, supra at 764; Fletcher, § 861.1, p 287; see also Phoenix Airline Serv v Metro Airlines, 194 Ga. App. 120, 124; 390 S.E.2d 219 (1990), rev'd on other grounds 260 Ga. 584; 397 S.E.2d 699 (1990). Corporate assets also include cash, facilities, contracts, goodwill, and corporate information. Brudney Clark, A New Look at Corporate Opportunities, 94 Harv L Rev 997, 1006-1007 (1981).
Generally speaking, estoppel is applied more consistently when "hard" assets, such as cash, facilities, and contracts, are used rather than when "soft" assets, such as good will, working time, and corporate information, are used. Id. at 1007. The use of hard assets is often dispositive of the usurpation-of-opportunity issue. Id. at 1007-1008. However, "the concept `corporate asset' and its relationship to the opportunity being diverted become less clear when what is involved is the time of an executive or information about a new project discovered by an officer during, but not strictly within, the course of his employment." Id. at 1008-1009.
Our review of the record evidence leads us to the conclusion that Rapistan funds, facilities, personnel, and compensated time, in minimal amounts, were used by Michaels, Tilton, and O'Neill to further Raebarn's attempt to acquire Alvey once the opportunity was presented to Raebarn. However, we observe that the estoppel doctrine is based on equity. Fletcher, § 861.1, p 287. Further, the doctrine "operates somewhat unpredictably in practice" when the concept of corporate asset and its relationship to the opportunity being diverted become less clear. Brudney Clark, supra at 1008-1009. Generally, it appears that estoppel applies where there has been a significant use of corporate assets by a fiduciary and where there is a direct and substantial nexus or causal connection between the assets embarked and the creation, pursuit, and acquisition of the business opportunity. See, e.g., Graham, supra at 763-764; Goodhue Farmers' Warehouse Co v Davis, 81 Minn. 210; 83 N.W. 531 (1900). Cf. Guth, supra. In the present case, the amount of assets embarked were minimal, especially in light of the $29.5 million cost of acquiring Alvey. Moreover, we find that the record evidence fails to demonstrate a direct and substantial nexus or causal connection between use of Rapistan assets and the creation, development, and acquisition of the Alvey opportunity. Lastly, the record evidence fails to establish that confidential or proprietary information was used by the former Rapistan executives. See, e.g., MBL (USA) Corp v Diekman, 112 Ill. App.3d 229, 236; 67 Ill Dec 938; 445 N.E.2d 418 (1983). Under such circumstances, we conclude that the present case is not the type of case in which the estoppel doctrine was meant to apply and that equity would not be well served by an application of the estoppel doctrine. Accordingly, we do not find that the trial court erred in its balancing of the equities or in its refusal to apply the estoppel doctrine in this case.
We conclude that the trial court properly rejected plaintiffs' conspiracy claim. Under Delaware law, a conspirator is jointly and severally liable for the acts of coconspirators committed in furtherance of the conspiracy. Nicolet, Inc v Nutt, 525 A.2d 146, 150 (Del, 1987). Accordingly, a third party who knowingly participates in a breach of a fiduciary's duty becomes liable to the beneficiaries of the trust relationship. Gilbert v El Paso Co, 490 A.2d 1050, 1057 (Del.Ch., 1984), aff'd 575 A.2d 1131 (Del, 1990). A corporation can be a conspirator if the corporation's participation in the conspiracy is shown. 10 Fletcher, Cyclopedia Corporations, § 4884, pp 369-370. In the present case, plaintiffs have failed to establish that the former Rapistan executives usurped a Rapistan corporate opportunity. Accordingly, plaintiffs also have failed to establish their conspiracy claim. There can be no conspiracy where there is no underlying wrong.
Finally, we decline to order the recision of the stock subscription agreement entered into between plaintiff Lear Siegler Holdings and defendant Michaels. The parties agree that resolution of the issue before us is controlled by the law of the State of New York.
Under New York law, a corporate officer owes a statutory duty of good faith and diligence to the corporation. The officer also owes a common-law duty of good faith and loyalty. Maritime Fish Products, Inc v World Wide Fish Products, Inc, 100 A.D.2d 81, 87-88; 474 N.Y.S.2d 281 (1984). An employee who breaches these duties forfeits rights to compensation for services performed during the period of the employee's disloyalty. Westwood Chemical Co, Inc v Kulick, 570 F. Supp. 1032, 1041 (SD NY, 1983). If an employee's compensation is allocated to periods of time or to the completion of specific items of work, then forfeiture is apportioned according to the specific periods of time or to the task completed. Musico v Champion Credit Corp, 764 F.2d 102, 112-114 (CA 2, 1985).
Plaintiffs provide no citation to any legal authority that holds that stock purchased pursuant to a stock subscription agreement constitutes compensation for purposes of the New York forfeiture rule. However, we conclude that stock purchased pursuant to a stock subscription agreement does constitute compensation subject to the forfeiture doctrine, given that a board of directors cannot make a gift of corporate funds to a corporate officer, given that a board of directors has no authority to apply corporate assets to a corporate officer for services already rendered, and given that the option to purchase stock in a corporation is generally given a corporate officer as incentive compensation. See, e.g., Wyles v Campbell, 77 F. Supp. 343, 346 (D Del, 1948); cf. Shipman v General Transistor Corp, 22 Misc.2d 632, 634; 198 N.Y.S.2d 852 (1960), aff'd 12 A.D.2d 529; 207 N.Y.S.2d 734 (1960).
We have reviewed the record evidence and find that Michaels breached no duty owed Rapistan between the effective date of the subscription agreement and the date of the vesting of one-third of the stock subject to acquisition under the agreement. Further, given that the stock option constituted incentive compensation and that Rapistan received an award from Lear Siegler Holdings at the April 1988 meeting of the presidents of all Lear Siegler Holdings subsidiaries for being the best-managed subsidiary, we find that Michaels earned the one-third vested stock, that Rapistan was not hurt by any conduct of Michaels that occurred during the one-year period, and that forfeiture would be inconsistent with the purpose of the subscription agreement. Accordingly, we cannot say that the trial court erred as a matter of law when it rejected plaintiffs' request for recision.