RICO — Dilution of Minority Shareholders through Extra Compensation to Majority = Derivative, Not Direct, Injury; Abusive Litigation Tactics ≠ Extortion; PSLRA Bars Claim that Purpose of Squeeze-Out was to Bar Minority from Follow-Up Merger

From Bixler v. Foster, 596 F.3d 751 (10th Cir. 2010):

According to the complaint, defendants Duncan, Sapper, and Malone were directors and majority shareholders of METCO, a New Mexico uranium mining company. ***[T]hey negotiated a trade of METCO's uranium mining claims to subsidiaries of defendant Uranium King, Ltd. (UKL), an Australian corporation. Defendants Duncan, Sapper, and Malone were also directors of UKL. UKL subsequently merged with another Australian corporation, Monaro Mining NL (Monaro).

Plaintiffs alleged that the transfer of mining claims provided for METCO to receive $6.5 million and for METCO to receive stock in UKL in exchange for METCO's uranium interests. The UKL stock was then to be distributed among the METCO shareholders on a pro rata basis. According to plaintiffs, after defendants Duncan, Sapper, and Malone transferred the METCO uranium claim deeds to UKL, UKL abandoned the agreement and paid neither the money nor the UKL stock to METCO. Consequently, plaintiffs lost the value of their investment in METCO. In addition, plaintiffs claimed that Duncan, Sapper, and Malone were highly compensated for arranging the transaction. ***

In general, the law is that conduct which harms a corporation confers standing on the corporation, not its shareholders. "[T]he [shareholder standing rule] is a longstanding equitable restriction that generally prohibits shareholders from initiating actions to enforce the rights of the corporation unless the corporation's management has refused to pursue the same action for reasons other than good-faith business judgment." Franchise Tax Bd. of Calif. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S. Ct. 661, 107 L. Ed. 2d 696 (1990). An exception to this rule "allow[s] a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation's rights are also implicated." *** Plaintiffs claim to fall within this latter exception.

[Footnote 4] "As a general matter, shareholders suffer injury in the Article III sense when the corporation incurs significant harm, reducing the return on their investment and lowering the value of their stockholdings." Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006). Shareholders, however, must also meet the "prudential requirements of the standing doctrine." Franchise Tax Bd. of Calif. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S. Ct. 661, 107 L. Ed. 2d 696 (1990). One of these is that the "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

Plaintiffs' allegations, however, merely assert the minority shareholders suffered a diminution in value of their corporate shares without receiving the same monetary compensation the majority shareholders received. Such an injury is not direct and personal for RICO purposes but is, rather, an injury to the corporation. To avoid this fundamental problem, the minority shareholders assert that their claims are based on injury to them, rather than the corporation. Specifically, they contend that (1) defendants' actions caused their proportionate corporate ownership to be diluted, and (2) that defendants have pursued abusive litigation against them in an effort to coerce them into abandoning their interests in METCO.

[Footnote 5] Plaintiffs also assert that shareholders have standing to sue if they have suffered a breach of a special duty or if a defendant has violated an independent duty owed to the shareholders. *** But plaintiffs have presented no reasoned argument explaining the nature of the duties defendants owed them or how any such duty was breached. Consequently, we do not consider this argument. See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003) ("We . . . will not consider issues that are raised on appeal but not adequately addressed."); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) ("Arguments inadequately briefed in the opening brief are waived[.]"); Fed. R. App. P. 28(a)(9)(A) (providing that an appellant's brief must contain "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies").

*** Plaintiffs' argument here is based on their allegations that the majority shareholders received personal compensation for arranging the mining-claim transaction, while the minority shareholders, including plaintiffs, did not. This argument fails to show that plaintiffs' corporate ownership was diluted because they have made no showing that more shares were issued or that the value of the majority shareholders' shares increased more than theirs. Rather, they allege that the majority shareholders received compensation for agreeing to the transaction, not that those defendants' shares in METCO increased in value disproportionately. Therefore, plaintiffs have not shown that their proportionate corporate ownership was diluted as set forth in Lochhead.

Plaintiffs suggest on appeal that they could have avoided these standing problems by amending their complaint to omit their allegations of securities fraud and insider trading. We conclude that amendment would have been futile because withdrawing the specific allegations of securities fraud and insider trading would not have altered the essential nature of plaintiff's claims, which were based on their status as minority METCO shareholders whose shares lost value. *** Next, plaintiffs claim that they were injured by the frivolous lawsuits defendants filed against them in order to force them to abandon their interests in METCO. Because this claim is not based solely on their status as METCO shareholders, "[t]o determine whether Plaintiff[s] properly alleged an injury to [their] business or property, we first examine the alleged predicate acts that purportedly caused the injury." *** Plaintiffs assert that defendants' litigation tactics were extortionate, with the purpose of coercing them to accept defendants' allegedly fraudulent acts. We have refused to "recogniz[e] abusive litigation as a form of extortion [because doing so] would subject almost any unsuccessful lawsuit to a colorable extortion (and often a RICO) claim." Therefore, plaintiffs' abusive-litigation claim does not state a RICO predicate act. ***

Because plaintiffs' injuries were based on the diminution of the value of their METCO shares, and not on direct injury to them, we conclude their claims are derivative of the corporation's. This conclusion accords with the uniform holdings of other circuits that have considered this question. According to these decisions, corporate shareholders do not have standing to sue under the civil RICO statute for alleged injuries to the corporation. [Citations omitted.]***

B. PSLRA Standing

Plaintiffs contend that the PSLRA exception to RICO does not apply because their claims did not involve the purchase or sale of securities. Although the minority shareholders did not purchase or sell their METCO shares as part of the alleged wrongdoing, their allegations that defendants defrauded them from receiving UKL stock as provided in the transaction, and the subsequent (allegedly fraudulent) merger of UKL and Monaro, describe a "purchase" and "sale" of securities. S.E.C. v. Nat'l Sec., Inc., 393 U.S. 453, 467, 89 S. Ct. 564, 21 L. Ed. 2d 668 (1969) ("[S]hareholders 'purchased' shares in [a] new company by exchanging them for their old stock."); accord Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir. 1999) ("When an exchange of shares facilitates the merger of two separate and distinct corporate entities, that exchange constitutes a 'purchase or sale' for purposes of bringing a Rule 10b-5 action."). Similarly, plaintiffs' claim that defendants transferred METCO's uranium interests to UKL with the intent not to honor the corresponding agreement to issue UKL stock to METCO or its shareholders, also describes a violation of Rule 10b-5. See Wharf (Holdings) Ltd. v. United Int'l Holdings, Inc., 532 U.S. 588, 596-97, 121 S. Ct. 1776, 149 L. Ed. 2d 845 (2001) (holding the defendant's sale of a security in the form of an option to purchase shares "while secretly intending from the very beginning not to honor the option" falls within § 10(b)'s policy of full disclosure). Plaintiffs also attempt to avoid the PSLRA bar by arguing that most of their alleged predicate acts do not describe securities fraud. They maintain that their allegations that defendants committed mail and wire fraud, bank fraud, extortion, obstruction of justice, and interstate travel in support of racketeering, described conduct not covered by the PSLRA. "Such conduct may well constitute [illegal and fraudulent acts], but it was also undertaken in connection with the purchase of a security. Thus, it cannot support a civil RICO claim after enactment of the PSLRA." Bald Eagle Area Sch. Dist., 189 F.3d at 330. Allowing plaintiffs to engage in "surgical presentation of the cause of action" would undermine the purpose of the RICO amendment. Id.; accord Gatz v. Ponsoldt, 297 F. Supp. 2d 719, 731 (D. Del. 2003) ("A plaintiff cannot circumvent the PSLRA's exclusion of securities fraud as a RICO predicate act through artful pleading.").

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