IX. Oppression of Minority Shareholder
The ninth claim for relief seeks recovery against the individual
defendants alone on the ground that the cancellation of plaintiff's
shares constituted oppression of a minority shareholder.
It is difficult to understand what plaintiff is driving at here.
Certainly plaintiff, as a minority shareholder, enjoyed all statutory
rights afforded to shareholders generally and was the beneficiary of
fiduciary duties owed shareholders by corporate officers and directors.
Plaintiff argues that he should be permitted "to avail himself of any
remedial statute addressing the issue" of minority shareholder
oppression.*fn59 The only statute he cites, however, is Section 623 of
the Business Corporation Law.*fn60 But Section 623 — which
establishes the procedure governing the appraisal rights of shareholders
dissenting from certain corporate actions*fn61 — has absolutely no
bearing on this case, as plaintiff was not a shareholder as of the
effective date of the merger. In any case, Section 623 applies only where
some other statute confers an appraisal right, and plaintiff points to no
such statute. Accordingly, the ninth claim for relief is insufficient.
X. Civil Conspiracy
The tenth claim for relief charges the individual defendants and
Commissioner.com with conspiracy to defraud, to convert plaintiff's
shares, and to oppress him as a minority stockholder.
In view of the dismissal of the conversion and oppression of a minority
shareholder claims, as well as part of the fraud claim, this claim ought
to be repleaded.
For the foregoing reasons, the motions by the individual defendants and
by defendants SportsLine.com, Inc. and Commissioner.com, Inc. to dismiss
the third amended complaint are granted to the extent that
(a) the first, second, fourth, fifth, seventh, ninth and tenth claims
for relief are dismissed with leave to replead, on or before June 10,
2002, only the first and tenth claims and those only to the limited
extent indicated above, and
(b) the third and eighth claims for relief are dismissed as against
The motions are denied in all other respects. What remains of the
action, absent the filing of an amendment to the complaint pursuant to
the leave granted in paragraph (a) above, therefore are the third and
eighth claims for relief against the individual defendants and the sixth
claim for relief. For the sake of convenience, the plaintiff shall not
file a fourth amended complaint. Should plaintiff avail himself of the
leave granted herein, he shall serve and file an amendment to the
complaint repleading only the first and tenth claims for relief in