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Central Laborers' Pension Fund v. Blankfein

Supreme Court of New York, First Department

September 17, 2013

Central Laborers' Pension Fund, etc., Plaintiff-Appellant,
Lloyd C. Blankfein, et al., Defendants-Respondents, Claes Dahlbäck, et al., Defendants, The Goldman Sachs Group, Inc., Nominal Defendant-Respondent. Index 600036/10

In this consolidated action, plaintiffs Central Laborers' Pension Fund, The Security Police and Fire Professionals of America Retirement Fund, Judith A. Miller and Robert Brown, appeal from the order of the Supreme Court, New York County (Bernard J. Fried, J.), entered September 26, 2011, which, insofar as appealed from as limited by the briefs, denied their motion for an award of attorneys' fees and reimbursement of litigation expenses.

Grant & Eisenhofer, P.A., Wilmington, DE (Michael J. Barry of the bar of the State of Minnesota, admitted pro hac vice, of counsel), Grant & Eisenhofer P.A., New York (Jay W. Eisenhofer of counsel), and The Grant Law Firm, PLLC, New York (Lynda J. Grant of counsel), for appellants.

Sullivan & Cromwell LLP, New York (David M.J. Rein and Matthew A. Peller of counsel), for respondents.

Richard T. Andrias, J.P. David Friedman Rolando T. Acosta Helen E. Freedman Darcel D. Clark, JJ.


This putative shareholder derivative action — which plaintiffs commenced without making a pre-suit demand for a reduction in employee compensation on the board of nominal defendant The Goldman Sachs Group, Inc. (GSG), a Delaware corporation — was based on plaintiffs' prediction that GSG would announce excessive employee compensation for 2009. The first of the three consolidated complaints was filed on December 14, 2009. Exactly six weeks later, on January 25, 2010, plaintiffs declared that, with GSG's January 21 announcement that 2009 compensation would be at a lesser level than plaintiffs had forecast, the action had attained its objective, and stated their intention to move for a voluntary dismissal of the matter and, at the same time, for an award of legal fees pursuant to Business Corporation Law § 626(e). [1]

The primary question on this appeal is whether an award of attorneys' fees pursuant to Business Corporation Law § 626(e) is available to the plaintiff in a putative shareholder derivative action even though the plaintiff did not satisfy the threshold requirement of § 626(c) of making a pre-suit demand upon the board for the desired action and did not show that such a demand would have been futile. Supreme Court held that, where the demand requirement of § 626(c) is neither satisfied nor excused by futility, the plaintiff in a putative shareholder derivative suit is not entitled to recover the "reasonable expenses" of the suit pursuant to § 626(e), regardless of any contention that the action nonetheless resulted in a substantial benefit to the corporation. Accordingly, the court denied plaintiffs' application for an award of attorneys' fees and reimbursement of litigation expenses, based on its determination (not challenged by plaintiffs on appeal) that the demand requirement was neither satisfied nor excused as futile in this case. We affirm.

As noted, this action was based on the claim that GSG's announcement of employee compensation for 2009 — which was imminent when the three consolidated complaints were filed in December 2009 and January 2010 — was likely to earmark around 50% of the firm's net revenues for that purpose, as had been done in previous years [2]. Plaintiffs contended that such a level of compensation would be excessive, given their view that GSG's 2009 revenues were due, not to the performance of its employees, but to "accounting trickery" and government intervention in the wake of the 2008 financial meltdown. Regarding the pre-suit demand requirement, plaintiffs alleged that they did not make a demand upon GSG's board because the anticipated compensation announcement would "not [be] a product of a valid exercise of the business judgment of the Defendants [the GSG directors], who participated in, approved, and/or permitted the wrongs." Plaintiffs further alleged that, "because the Board is beholden to [GSG] and its executives, the Board is not disinterested and lacks sufficient independence to exercise its business judgment in setting a compensation policy." [3]

By letter dated January 12, 2010, defendants informed the court and plaintiffs that they intended to move to dismiss the actions on the ground, among others, that plaintiffs "ha[d] not made a pre-suit demand on the [GSG] Board, and ha[d] not adequately pleaded that demand is excused." On January 21, 2010, before defendants made any motion to dismiss, GSG issued a press release discussing its 2009 financial performance and announcing its compensation and benefits expenses for that year. The press release revealed that GSG's ratio of compensation and benefits to net revenues for 2009 was 35.8%, as compared to 48% for 2008. Four days later, on January 25, plaintiffs filed papers with Supreme Court in which they asserted that the actions were moot because the announcement of the employee compensation that GSG's board had set for 2009 "essentially conceded the merits of Plaintiffs' claims, " and stated their intention to move to dismiss the actions voluntarily. [4]

On April 8, 2010, plaintiffs moved for a voluntary dismissal of the action (the three actions by then having been consolidated) and, at the same time, for an award of attorneys' fees in the amount of $5 million pursuant to Business Corporation Law § 626(e) [5]. The basis for the fee application was plaintiffs' contention that the action was "successful" within the meaning of § 626(e) because its filing had induced the GSG board to approve $5 billion less in employee compensation than otherwise would have been the case. Defendants opposed the motion, arguing that the demand requirement had been neither satisfied nor excused, that the complaint otherwise failed to state a cause of action, and that the record established that the litigation was not the cause of any "substantial benefit" to GSG.

In the order appealed from, Supreme Court granted plaintiffs' motion only to the extent of dismissing the consolidated action; the application for an award of attorneys' fees and reimbursement of litigation expenses was denied. The fee application was denied on the ground that plaintiffs had not complied with Business Corporation Law § 626(c), which requires the complaint in a shareholder derivative action to "set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort." Noting plaintiffs' admission that they had not made a pre-suit demand, the court determined that plaintiffs had not made particularized allegations that, if true, would have established the futility of demanding action by the board under Delaware law (applicable on matters of substance because GSG is a Delaware corporation). Specifically, the court found that plaintiffs did not make any allegations from which it could be inferred that the setting of employee compensation at the level plaintiffs had anticipated would have constituted a waste of corporate assets or would otherwise have been outside the protection of the business judgment rule, nor did plaintiff's allegations place in doubt the disinterest or independence of the 10 non- employee directors of GSG [6]. Accordingly, because the court held that, under New York law, "the fee award provision of [Business Corporation Law § ] 626(e) is not available to a plaintiff who has not satisfied the pleading requirements of section 626(c), " it denied plaintiffs' application for attorneys' fees. [7]

We are in substantial agreement with Supreme Court's analysis. At the outset, we note that, in their appellate briefs, plaintiffs have not taken issue with Supreme Court's determination that they failed to plead particularized facts that would have established the futility of demanding action by the board so as to excuse the demand prerequisite to a derivative suit under Delaware law (see Delaware Court of Chancery Rule 23.1) [8]. Accordingly, plaintiffs have abandoned any challenge on appeal to that determination (see e.g. Edelman v Emigrant Bank Fine Art Fin., LLC, 89 A.D.3d 632 [1st Dept 2011]), and it is established, for purposes of this appeal, that plaintiffs had no excuse for their admitted failure to make a pre-suit demand for the corporate action they desired.

Plaintiffs argue that Business Corporation Law § 626(e) (quoted in pertinent part at footnote 5, supra) does not expressly require a showing that the demand requirement was complied with or excused as a prerequisite to an award of attorneys' fees for bringing an action that brought a substantial benefit to the corporation (as plaintiffs claim — and defendants deny — that this action did). Plaintiffs further argue that there is no reason to construe the statute to imply such a requirement. We disagree.

To begin, plaintiffs' analysis is internally inconsistent. They concede that a derivative plaintiff cannot recover attorneys' fees under § 626(e), regardless of any benefit the action may have caused the corporation to realize, if the plaintiff was not a shareholder at the time of the challenged transaction and at the time the action was commenced, as required by subsections (a) and (b) of § 626. Thus, plaintiffs concede that standing to bring a derivative action has some relevance to the fee determination under § 626(e). But subsection (e) no more refers to the shareholding requirements of subsections (a) and (b) than it does to the demand requirement of subsection (c). In this regard, we agree with defendants that the phrase "on behalf of the corporation" in the opening clause of § 626(e) ("If the action on behalf of the corporation was successful" [emphasis added]) implies that the plaintiff, to be entitled to a fee award, must meet all requirements for ...

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