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Curbow Family LLC v. Morgan Stanley Investment Advisors

Supreme Court, New York County

July 18, 2012

Curbow Family LLC, et.al., Plaintiffs,
v.
Morgan Stanley Investment Advisors, et. al., Defendants. and INVESCO INSURED MUNICIPAL INCOME TRUST, Nominal Defendant. CLIFFORD T. ROTZ, JR., et.al., Plaintiffs,
v.
Van Kampen Asset Management, et. al., Defendants. and INVESCO VAN KAMPEN ADVANTAGE, et. al.,

Bernard Fried, J.

In these two shareholder derivative actions, motions seeking dismissal of the complaint based on documentary evidence and for failure to state a cause of action under CPLR §§ 3211(a)(1) and (a)(7), have been held in abeyance pending the resolution of plaintiffs' request for further discovery. Supplemental briefs on the discovery issue were filed, argument was held on February 17, 2012, and letters dated April, 2, 2012 (nominal defendants and defendants- NYSCEF Doc. No. 74 [ Curbow/Morgan Stanley Action], Doc. No. 84 [Rotz/ Van Kampen Action]) and April 4, 2012 (plaintiffs - NYSCEF Doc. No. 75 [ Curbow/Morgan Stanley Action], Doc. No. 85 [Rotz/ Van Kampen Action]) were received. Due to the commonality of the discovery issues, resolution of these discovery requests is combined in this memorandum decision. [1]

Briefly, these two consolidated and amended shareholder derivative complaints seek similar relief.

According to the Curbow/Morgan Stanley complaint (No.651059/2010), the action is brought on behalf of nominal defendants Invesco Insured Municipal Income Trust (formerly known as the Morgan Stanley Insured Municipal Income Trust) and Invesco Municipal Premium Income Trust (formerly known as the Morgan Stanley Municipal Income Trust) - the "Trusts" or the "Funds", seeking damages allegedly suffered from breaches of fiduciary duty committed by the Individual Defendants (certain current and former trustees and executive officers of the Funds), and the Funds' former investment advisor, defendant Morgan Stanley Investment Advisors, Inc., whose parent company is Morgan Stanley. In 2001, these Funds were sold to Invesco Ltd. and Invesco Advisers, Inc., a wholly owned subsidiary of Morgan Stanley, became the investment adviser.

The Rotz/ Van Kampen complaint (#651060/2010) was brought on behalf of different Funds, involving different Individual Defendants (executive officers of the Funds), and the former investment advisor, Van Kampen Asset Management, whose parent company is Morgan Stanley. In 2001 these Funds were also sold to Invesco Ltd. and Invesco Advisers, Inc.

As is relevant here, on October 18, 2011, following filing of separate motions to dismiss in these two cases, a joint status conference was held on the respective plaintiffs' requests that they be permitted to take limited discovery before responding to the Funds' motions to dismiss. At that conference I authorized supplemental submissions on the subject of whether plaintiffs are entitled to take such limited discovery.

In the Curbow/Morgan Stanley action, plaintiffs sent Demands to Boards, followed by commencement of these consolidated actions. Thereafter, the action was stayed by stipulation to permit the Special Litigation Committee ("SLC") to complete its investigation and for the Boards to consider the recommendations. During this time, the plaintiffs participated in the investigation, reviewed many of the documents submitted to the SLC, and entered into a Confidentiality Agreement. Ultimately, the SLC issued a 377-page Report, and the Boards accepted the recommendation to refuse the Demands and move to dismiss the action. Thereafter the stay was lifted and the Funds moved to dismiss the complaint, following which Plaintiffs sought discovery. The discovery demands were not responded to, and at a conference on October 18, 2011, I permitted Plaintiffs to make this written submission for discovery before responding the motion to dismiss.

It is undisputed that the Curbow/Morgan Stanley Plaintiffs have "all the documents" (tr. 2/12/2011, p. 14), "approximately 187, 760 pages of documents [2] " collected and reviewed by the SLC (Nom. Def. M.O.L. in Opp., p. 4). However, only a portion of these were contained in the five exhibit volumes to the Report. Although the Plaintiffs are in possession of "all" the documents, due to the Confidentiality Agreement, the Defendants offered to consent only to those documents in the "Report and the five exhibit volumes". This offer was rejected and this application followed, which also seeks to depose members of the SLC. Although the offer was withdrawn upon the filing of this application, by letter dated, April 2, 2012, the Defendants in both actions, have stated that they now "have no objection to plaintiffs [Curbow and Rotz [3] ] using the exhibits...to respond to the pending motions to dismiss" (p.1).

In the Rotz/ Van Kampen action, demand letters were sent in April 2010. The Funds responded and requested that the Plaintiffs provide substantive information. Instead, shareholder derivative actions were filed, which were subsequently consolidated. A SLC was also established, which ultimately prepared a 162-page Report with 2 volumes of exhibits. The Plaintiffs in this action do not have any of the underlying documents reviewed by the SLC; however, as noted, the Funds have now provided "the two volumes of exhibits...as well as the other exhibits specifically referred to in the Report..." (id., p. 2).

A threshold issue [4] is whether New York discovery rules apply here or whether discovery is controlled by Mass. Gen. Law, ch. 156D, § 7.44(d). That subsection provides that, if the corporation moves to dismiss a derivative suit brought after rejection of a demand, "it shall make a written filing with the court setting forth facts to show (1) whether a majority of the board of directors was independent at the time of the determination by the independent directors and (2) that the independent directors made the determination in good faith after conducting a reasonable inquiry upon which their conclusions are based. " The statutory paragraph continues: "[T]he court shall dismiss the suit unless the plaintiff has alleged with particularity facts rebutting the corporation's filing in its complaint or an amended complaint or in a written filing with the court"" The paragraph then provides: "All discovery proceedings shall be stayed upon the filing by the corporation of the motion to dismiss and the filing required by this subsection until the notice of entry of the order ruling on the motion; but the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted." (emphasis added).

The latter sentence concerning staying discovery is contained in the same paragraph of the statute as the other quoted statements. In other words, the presumptive stay of discovery, subject to an exception for good cause, is part of the pleading requirement in a demand-refused derivative lawsuit, under the Massachusetts statute.

The parties have cited no cases, and I have discovered none, that address the question of whether a New York court should follow the discovery rule set forth in § 7.44(d) in a demand-refused derivative case. Because New York is the forum state, New York choice of law principles determine whether the nature and effect of § 7.44(d) is procedural or substantive. See Tanges v. Heidelberg North America, Inc., 93 N.Y.2d 48, 54 (1999). Under the internal affairs doctrine, "[o]nly one State should have the authority to regulate a corporation's internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands." Hart v. General Motors Corp., 129 A.D.2d 179, 184 (1st Dept. 1987) (quoting Edgar v. MITE Corp., 457 U.S. 624, 645 (1982)). The "apparent purpose" of the Massachusetts statute is "to strengthen the role of directors in controlling matters affecting the corporation, absent specific facts to undermine the presumption that directors act with independence and in the exercise of legitimate business judgment." Slip op., Pinchuk v. Logue, Civ. No. 09-2930-BLS2, at 1-2 (Mass. Super. Ct. Dec. 9, 2009).

Generally, "matters of procedure are governed by the law of the forum." Marine Midland Bank, N.A. v. United Missouri Bank, N.A., 223 A.D.2d 119, 122 (1st Dept. 1996). New York courts have held that "matters dealing with the conduct of litigation are procedural for conflict of law purposes and are therefore governed by the law of the forum." NY Jur. 2d Conflict of Laws § 67 (citing, e.g., People ex. rel. Spitzer v. Greenberg, 50 A.D.3d 195, 198 (1st Dept. 2008) ("New York courts routinely apply the law of the place where the evidence in question will be introduced at trial or the location of the discovery proceeding when deciding privilege issues")); accord Federal Ins. Co. v. Fries, 78 Misc.2d 805, 808 (NY City Civ. 1974).

Here, however, the Massachusetts discovery provision is an integral part of the Massachusetts statute governing derivative proceedings. To me it is evident that this statute is designed to implicate the authority of the state of Massachusetts to regulate the internal affairs of a corporation organized under its laws. Therefore, I conclude that the discovery component of the substantive Massachusetts derivative action statute should be applied in this forum. This leads to the conclusion that, pursuant to ยง 7.44(d), all discovery proceedings are presumptively stayed ...


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