Articles Posted in Books and Records Inspections

In AmerisourceBergen Corp. v. Lebanon County Employees’ Retirement Fund1, the Delaware Supreme Court recently addressed the issue of whether a stockholder seeking inspection of a corporation’s books and records pursuant to Section 220 of the Delaware General Corporation Law (“Section 220”) for the purpose of investigating mismanagement or wrongdoing by the corporation or its fiduciaries must demonstrate that the alleged mismanagement or wrongdoing is actionable in order to establish a proper purpose for the inspection.

There is a divergence in decisions of the Delaware Court of Chancery as to this issue. Some Court of Chancery opinions have held that a stockholder must demonstrate that alleged corporate mismanagement or wrongdoing is actionable in order to state a proper purpose under Section 2202. Other Court of Chancery decisions have held that stockholders are not required to demonstrate that the alleged mismanagement or wrongdoing is actionable in order to assert their Section 220 inspection rights3. The position that stockholders must demonstrate actionable wrongdoing found some support in the Delaware Supreme Court’s summary affirmance of the Court of Chancery’s decision in Southeastern Pennsylvania Transportation Authority v. AbbVie, Inc.4. In AbbVie, the Supreme Court summarily affirmed a Court of Chancery decision holding that a stockholder had not stated a proper purpose for the requested inspection because the corporation’s directors were protected by an exculpatory provision of the corporation’s certificate of incorporation that was authorized by Section 102(b)(7) of the Delaware General Corporation Law (“DCGL”).5

However, in AmerisourceBergen, the Supreme Court squarely addressed the issue of whether a stockholder must establish the actionability of mismanagement or wrongdoing in order to demonstrate a proper purpose under Section 220 and held that a stockholder need not demonstrate that the alleged mismanagement or wrongdoing is actionable6. To the extent that its summary affirmance in AbbVie suggested otherwise, the AmerisourceBergen Court expressly overruled that decision.7

In Munroe-Diamond v. Munroe1, the Illinois Appellate Court recently addressed the issue of the rights of directors of a corporation to inspect the corporation’s books and records. Section 7.75 of the Illinois Business Corporation Act (BCA) provides shareholders with the right to examine certain corporate records provided that the examination is conducted for a proper purpose.2 However, the BCA contains no corresponding provision regarding the inspection rights of directors. While there is a well-developed body of case law regarding shareholders’ rights to examine books and records, there are very few reported decisions addressing the inspection rights of directors.

Munroe-Diamond arose out of a common fact pattern, a dispute between siblings who comprised the shareholders and directors of a closely held corporation over the value of the corporation’s shares during buyout negotiations. In this particular shareholder dispute, the divide occurred along gender lines. The brothers owned the majority shares of a moving company and the sisters owned minority shares. The board of directors had hired a valuation firm to provide a fair market valuation of the corporation’s stock. That firm valued the controlling shares, all of which were held by the brothers, at nearly twice the value of the minority shares. The board of directors authorized the corporation to redeem the shares held by minority shareholders for slightly more than the appraised value. While other minority shareholders’ shares were redeemed, the sisters refused to sell their shares for the amount offered.3

Rather, the sisters made a demand upon the corporation to make available for inspection and copying any and all documents pertaining to twenty-four listed categories. The demand did not state a purpose for the inspection. The brothers refused to comply with the demand on the ground that no purpose was put forward as to why the sisters needed access to the documents and no explanation was provided as to how the documents related to the sisters’ duties as directors.4

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