Corporate Freeze Out

Investing in a new company is always risky. The minority shareholders, however, usually bear more risk than the majority shareholders, given their relative lack of power. Sometimes the majority shareholders decide to force out minority shareholders (known as a freeze-out or squeeze-out) and there is very little that the minority shareholders can do about it. The majority shareholders have a few different ways that they can accomplish this, as our Chicago shareholder lawsuit attorneys are aware.

Dilutive Financing:

This happens when a sale of equity is made at a lower price than that at which the company is valued. Dilutive financing can be a legitimate way to raise money if the company's value has gone down. On the other hand, it can also be used to dilute a shareholder's interest in the company. In order to determine whether the dilutive financing was done to freeze out minority shareholders, courts have a couple of different factors they usually consider, including whether the financing was legitimately needed, and whether the majority shareholders stood to gain from the dilutive financing.

In the event that the minority shareholders file a lawsuit alleging that the dilutive financing was conducted for the sole purpose of freezing them out, the plaintiffs carry the burden of providing sufficient evidence that there was conflict of interest among the directors of the company. The majority shareholders then have the responsibility of proving that there was "entire fairness" in the transaction (meaning that the minority shareholders were treated fairly and received a fair price for their shares).

Short-Form Merger:

This is when a parent corporation, which owns at least 90% of each class of stock in a subsidiary company, decides to merge with the smaller company. In this event, the minority shareholders in the smaller company are forced out for a fair value cash buyout, meaning the company will reimburse them for their lost shares at the value of those shares. When this happens, the minority shareholders have no choice but to exchange their shares for cash. Based in the Chicago area, our shareholder lawsuit lawyers can explore whether a short-form merger was properly conducted.

Long-Form Merger:

Short-form mergers are only permitted in certain states. For corporations operating in states which don't allow short-form mergers, the option of performing a long-form merger can sometimes be used to obtain the same ends. However, majority shareholders in all states bear a fiduciary duty to their minority shareholders and courts will consider this duty when determining whether a short-form or a long-form merger was conducted for the sake of freezing out minority shareholders. In the event that minority shareholders challenge a long-form merger, courts generally consider a variety of factors to determine if the majority shareholders breached their fiduciary duty. These factors include:

  • Which people and entities are majority shareholders of the company both before and after the merger;
  • Which people are directors of the company both before and after the merger;
  • Whether the majority shareholders are given the option of continuing to participate in the equity of the surviving company, while the minority shareholders have no choice but to trade in their shares for cash;
  • Whether the sole purpose of the merger was to freeze out minority shareholders;
  • The price paid to the minority shareholders for their shares;
  • Procedural fairness of the transaction, including how it was timed, initiated, structured, financed, developed, how and when it was disclosed to the independent directors and shareholders of the company, and how the necessary approvals for the merger were obtained.

Sometimes long-form mergers are conducted for the sake of legitimate business interests, and the courts will leave those alone, even if they have a negative effect on minority shareholders. If it can be reasonably shown, though, that the merger was conducted for the sole purpose of freezing out minority shareholders, then the company and its majority shareholders may face litigation from the minority shareholders to whom they owed a fiduciary responsibility.

The Chicago shareholder lawsuit lawyers at Lubin Austermuehle, P.C. are experienced at defending minority shareholders who have been subjected to a freeze out. We are dedicated to protecting the rights of investors and we have the skills and knowledge to do so effectively. With offices conveniently located in Elmhurst and Chicago, Illinois, we have represented investors all over the Midwest, including Indiana, Iowa, and Wisconsin. To consult a shareholder lawsuit attorney in the Chicago area today, contact us online or give us a call at 630-333-0333.

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