Joseph Hipps and Eugene Protz v. Biglari Holdings, Inc., Sardar Biglari, Philip L. Cooley, Ruth J. Person, Kenneth R. Cooper, James P. Mastrian, BH Merger Company, and NBHSA, Inc. ( 2019 )

FILED
Dec 04 2019, 9:39 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Brad A. Catlin Scott S. Morrisson
Price Waicukuauski Joven & Catlin, Mark J.R. Merkel
LLC Krieg DeVault, LLP
Indianapolis, Indiana Carmel, Indiana
Eric L. Zagar Libby Yin Goodknight
Justin O. Reliford Krieg DeVault, LLP
J. Daniel Albert Indianapolis, Indiana
Christopher Windover Michael E. Bern
Kessler Topaz Meltzer & Check, LLP Latham & Watkins, LLP
Radnor, Pennsylvania Washington, District of
Jeremy Friedman Columbia
David Tejtel Christopher Clark
Friedman Oster & Tejtel, PLLC Latham & Watkins, LLP
New York, New York New York, New York
Robert T. Dassow
William Fredrick Eckhart
Hovde Dassow & Deet, LLC
Indianapolis, Indiana
Stephen J. Oddo
Robbins, LLC
San Diego, California
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 1 of 30
Joseph Hipps and Eugene Protz, December 4, 2019
Appellants-Plaintiffs, Court of Appeals Case No.
19A-CT-101
v. Appeal from the Hamilton
Superior Court
Biglari Holdings, Inc., Sardar The Honorable Steven R. Nation,
Biglari, Philip L. Cooley, Ruth J. Judge
Person, Kenneth R. Cooper, Trial Court Cause No.
James P. Mastrian, BH Merger 29D01-1801-CT-760
Company, and NBHSA, Inc.,
Appellees-Defendants.
Tavitas, Judge.
Case Summary
[1] Joseph Hipps and Eugene Protz, individually and on behalf of a class of
common shareholders (“Shareholders”) of Biglari Holdings, Inc. (“Biglari
Holdings”) appeal the trial court’s grant of a motion to dismiss filed by the
Defendants, Biglari Holdings, BH Merger Company, NBHSA, Inc., Sardar
Biglari (“S. Biglari”), and the other members of the Biglari Holdings board of
directors—Phillip Cooley, Kenneth Cooper, James Mastrian, and Ruth Person
(collectively, the “Board”). We affirm. 1
1
We held oral argument in this matter on October 7, 2019, at the University of Notre Dame Law School.
We thank the Law School for its hospitality and counsel for their presentations.
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 2 of 30
Issue
[2] Shareholders raise one issue, which we restate as whether the trial court
properly dismissed their complaint against Defendants.
Facts
[3] Biglari Holdings is a publicly-traded company incorporated in Indiana that,
among other things, franchises and operates two restaurant chains—Western
Sizzlin and Steak ‘n Shake. S. Biglari is the CEO and chairman of the Board of
Biglari Holdings. Cooley, Cooper, Mastrian, and Person are the remaining
members of the Board.
[4] The Lion Fund and the Lion Fund II (collectively, “the Lion Funds”) are
private limited partnerships that each own substantial shares of Biglari
Holdings. In turn, Biglari Holdings is the majority limited partner of the Lion
Funds. Biglari Capital Corp. (“Biglari Capital”) is the general partner of the
Lion Funds, and S. Biglari is the chairman, CEO, and sole owner of Biglari
Capital. 2
2
In April 2010, Biglari Holdings acquired Biglari Capital for $4.1 million. In July 2013, Biglari Holdings
sold Biglari Capital back to S. Biglari for $1.7 million. Biglari Capital also “distributed to [Biglari Holdings]
almost all of Biglari Capital’s limited partnership interests in the Lion Fund, totaling $5.8 million,” but
Biglari Capital retained the general partnership interest in the Lion Funds. Appellants’ App. Vol. II pp. 29-
30. This transaction and others were addressed in a shareholder derivative action in federal court. See In re
Biglari Holdings, Inc. Shareholder Derivative Litigation, 93 F. Supp. 3d 936 (S.D. Ind. 2015). The action was
dismissed by the district court. The Seventh Circuit affirmed the district court’s dismissal of the action. See
In re Biglari Holdings, Inc. Shareholder Derivative Litigation, 813 F.3d 648 (7th Cir. 2016).
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 3 of 30
[5] In 2011 and 2012, Biglari Holdings unsuccessfully sought to create a dual-class
capital structure at Biglari Holdings, which required shareholder approval. The
dual-class structure would have redesignated common stock as Class A and
Class B common stock.
[6] S. Biglari then sought to acquire voting control over Biglari Holdings. Through
a series of complex transactions, Biglari Holdings contributed hundreds of
millions of dollars in securities and cash to the Lion Funds in exchange for
additional limited partnership interests in each of the Lion Funds. The Lion
Funds then acquired additional common stock of Biglari Holdings. As a result
of these transactions, S. Biglari, through his control of Biglari Capital and the
Lion Funds, gained control of 54.7% of the Biglari Holdings common shares.
[7] Having gained voting control over Biglari Holdings, S. Biglari then sought to
implement the dual class capital structure previously rejected by the
shareholders. On December 21, 2017, Biglari Holdings entered into an
agreement (“Reclassification Agreement”) whereby Biglari Holdings would
merge with BH Merger Company to create NBHSA, Inc. Upon completion of
the merger, NBHSA would be renamed Biglari Holdings, Inc. (“New Biglari
Holdings”). Under the Reclassification Agreement, shareholders of Biglari
Holdings would become shareholders of New Biglari Holdings. Biglari
Holdings would be a wholly-owned subsidiary of New Biglari Holdings and
renamed OBH, Inc.
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 4 of 30
[8] For every ten shares of common stock in Biglari Holdings, shareholders would
receive ten shares of Class B stock and one share of Class A stock of New
Biglari Holdings. Owners of Class B stock would have no voting rights. The
purpose of this change was “[t]o sustain the dual goal of maintaining the
founder’s control and of preserving the option of issuing equity in acquisitions,
financings or for other purposes.” Appellants’ App. Vol. II p. 42. Minority
shareholders voiced significant disapproval of the merger plan.
[9] On January 29, 2018, Hipps filed a class action complaint in Hamilton County
that sought to enjoin the Reclassification, and Defendants removed the
litigation to federal court. Hipps also filed a second state court action, which
was removed to federal court. While Hipps’ actions were pending in federal
court, Protz filed a class action complaint in Hamilton County on March 26,
2018. Protz sought injunctive relief to prevent the merger. In April 2018, the
parties reached an agreement whereby: (1) Defendants consented to remand to
Hamilton County from federal court; and (2) Shareholders abandoned their
request for injunctive relief, agreed to consolidate the actions, and agreed to
challenge the Reclassification after it was consummated. The Reclassification
plan was finalized on April 30, 2018.
[10] On May 17, 2018, Shareholders filed a consolidated class action complaint
against Defendants. The Shareholders’ main complaints relate to: (1) the shares
acquired by the Lion Funds and the treatment of these shares as voting stock,
which Shareholders contend violates the Indiana Business Corporations Law
(“IBCL” or “BCL”); and (2) the consummation of the Reclassification
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Agreement. According to Shareholders, the voting and alleged improper
treatment of the Lion Funds shares allowed S. Biglari to gain voting control of
Biglari Holdings and consummate the Reclassification Agreement.
[11] The complaint included the following counts:
(1) Count I, a claim against S. Biglari, as Biglari Holdings’
controlling shareholder, for breach of fiduciary duty “by
exploiting his position of control to cause [Biglari Holdings] to
enter into the Reclassification on terms unfairly beneficial to
himself and detrimental to the Class”;
(2) Count II, a claim against the Board for breach of fiduciary
duty “by, among other things, facilitating and approving the
Reclassification, which only serves to benefit S. Biglari at the
expense of Plaintiffs and the Class”;
(3) Count III, a claim against Biglari Holdings and the Board for
breach of the company’s articles of incorporation by violating the
IBCL by deeming shares acquired by the Lion Funds to be voting
shares;
(4) Count IV, a claim against S. Biglari for unjust enrichment by
maintaining his voting control “in perpetuity” through
consummation of the Reclassification Agreement;
(5) Count V, a claim for declaratory relief against Biglari
Holdings and the Board that the voting of the shares acquired by
Lion Funds “and treatment of said shares as voting stock violated
the IBCL” and the articles of incorporation; and
(6) Count VI, a claim for declaratory relief against Biglari
Holdings, New Biglari Holdings, and BH Merger Company that
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 6 of 30
the Reclassification Agreement was “invalid, void, voidable
and/or unenforceable” because the Reclassification Agreement
“is the product of breaches of fiduciary duty by S. Biglari and the
other members of the Board.”
Appellants’ App. Vol. II pp. 56-59.
[12] Pursuant to Indiana Trial Rule 12(B)(6), Defendants filed a motion to dismiss
the complaint with an attached exhibit. Shareholders filed a response brief with
exhibits, and Defendants filed a reply brief in support of their motion to
dismiss. After a hearing, the trial court summarily granted Defendants’ motion
to dismiss. Shareholders now appeal.
Analysis
[13] Shareholders appeal the trial court’s grant of Defendants’ motion to dismiss.
Indiana Trial Rule 12(B)(6) allows a party to request dismissal for “[f]ailure to
state a claim upon which relief can be granted . . . .” A motion to dismiss under
Trial Rule 12(B)(6) “tests the legal sufficiency of the [plaintiffs’] claim, not the
facts supporting it.” Bellwether Properties, LLC v. Duke Energy Indiana, Inc., 87
N.E.3d 462, 466 (Ind. 2017) (citation omitted). Dismissals are improper under
Trial Rule 12(B)(6) “‘unless it appears to a certainty on the face of the
complaint that the complaining party is not entitled to any relief.’” Id. (quoting
State v. American Family Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008)). We
review a Trial Rule 12(B)(6) dismissal “de novo, giving no deference to the trial
court’s decision.” Id. “In reviewing the complaint, we take the alleged facts to
be true and consider the allegations in the light most favorable to the
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nonmoving party, drawing every reasonable inference in that party’s favor.” Id.
The dismissal of a complaint under Trial Rule 12(B)(6) “is seldom appropriate”
because such dismissals “undermine the policy of deciding causes of action on
their merits.” BloomBank v. United Fid. Bank F.S.B., 113 N.E.3d 708, 720 (Ind.
Ct. App. 2018), trans. denied.
[14] Although not raised by the parties, we note that Indiana Trial Rule 12(B)
provides:
If, on a motion, asserting the defense number (6), to dismiss for
failure of the pleading to state a claim upon which relief can be
granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56. In
such case, all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.
[15] Here, both parties submitted matters outside of the pleading in arguing the
motion to dismiss. Our Court has held:
when examination of the face of a complaint alone reveals that
the plaintiff will not be entitled to relief under any set of
circumstances, consideration of external materials aimed at
substantiating or contradicting the complaint’s factual allegations
is irrelevant, because a fortiori the complaint fails to state a claim
upon which relief can be granted under any factual scenario.
Dixon v. Siwy, 661 N.E.2d 600, 603 (Ind. Ct. App. 1996); see also Thomas v.
Blackford Cty. Area Bd. of Zoning Appeals, 907 N.E.2d 988, 990 (Ind. 2009) (“If
affidavits or other materials are attached to the 12(B)(6) motion, it is treated as
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 8 of 30
one for summary judgment under Rule 56.”). “In that instance, the trial court
should exclude materials outside the pleadings which are submitted with a
12(B)(6) motion, rather than convert the motion into one for summary
judgment, because the external materials are irrelevant to the motion.” Id.
[16] The trial court here did not exclude the evidence outside the pleadings, but
there is no indication the extraneous materials played a part in the trial court’s
decision. See, e.g., Bd. of Commissioners of Union Cty. v. McGuinness, 80 N.E.3d
164, 167 (Ind. 2017) (“[I]t is apparent from the trial court’s disposition of this
motion that the designated affidavit played no part in its decision. Thus while it
was error for the trial court to not formally exclude the affidavit in its order, that
error was harmless.”). At oral argument for this matter, both parties agreed
that we should apply the motion to dismiss standard of review. As such, we
address this matter under the motion to dismiss standard of review, base our
decision solely upon the Shareholders’ complaint, and exclude the extraneous
materials submitted by the parties.
[17] This appeal involves a direct action by shareholders of a publicly-held
corporation. This type of action by shareholders was described by our Supreme
Court in G&N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 234 (Ind. 2001):
A direct action is “[a] lawsuit to enforce a shareholder’s rights
against a corporation.” BLACK’S LAW DICTIONARY 472 (7th ed.
1999). This action may be brought in the name of the
shareholder “to redress an injury sustained by, or enforce a duty
owed to, the holder.” 2 PRINCIPLES OF CORPORATE
GOVERNANCE § 7.01, at 17 (A.L.I. 1994). Direct actions are
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typically appropriate to enforce the right to vote, to compel
dividends, to prevent oppression or fraud against minority
shareholders, to inspect corporate books, and to compel
shareholder meetings.[ 3] Id.
In this direct action, the Shareholders’ claims pertain to: (1) the voting of the
Lion Funds shares; and (2) the Reclassification Agreement, which implemented
the merger. We must determine whether the trial court properly dismissed each
of the Shareholders’ claims.
I. Counts III and V - Voting of the Lion Funds Shares
[18] Because many of the Shareholders’ arguments depend upon whether the Lion
Funds properly voted their shares in Biglari Holdings, we begin by addressing
this issue. In Count III, Shareholders allege that Biglari Holdings and the
Board breached the company’s articles of incorporation and violated the IBCL
by “reacquir[ing] hundreds of thousands of shares of its common stock through
the Lion Funds” and deeming those shares “legally outstanding” and eligible
3
Our Supreme Court also discussed another type of shareholder action—a derivative action:
Derivative actions, on the other hand, are suits “asserted by a shareholder on the corporation’s
behalf against a third party . . . because of the corporation’s failure to take some action against
the third party.” BLACK’S at 455. They are brought “to redress an injury sustained by, or
enforce a duty owed to, a corporation.” A.L.I. at 17. Derivative actions are brought in the
name of the corporation and are governed by Trial Rule 23.1 and Indiana Code section 23-1-32-
1. To bring a derivative action[,] a shareholder must satisfy four requirements. They are: (1) the
complaint must be verified; (2) the plaintiff must have been a shareholder at the time of the
transaction of which he complains; (3) the complaint must describe the efforts made by the
plaintiff to obtain the requested action from the board of directors; and (4) the plaintiff must
fairly and adequately represent the interests of the shareholders. Examples of actions that are
typically required to be brought derivatively include actions to recover for loss of a corporate
opportunity, to recover corporate waste, and to recover damages to a corporation caused by an
officer or director’s self-dealing.
G&N Aircraft, Inc., 743 N.E.2d at 234-35.
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for voting. Appellants’ App. Vol. II p. 57. Similarly, in Count V, Shareholders
request declaratory relief that “the voting of the Reacquired Shares and
treatment of said shares as voting stock violated the IBCL and the Charter.” Id.
at 58.
[19] In the transactions at issue, Biglari Holdings used company funds to purchase
additional shares of the Lion Funds. The Lion Funds then used the funds to
purchase additional shares of Biglari Holdings. This system allowed S. Biglari,
who is the sole owner of Biglari Capital—the general partner of the Lion
Funds—to gain control over 54.7% of the voting stock of Biglari Holdings.
[20] Shareholders argue the Lion Funds’ voting of these shares violated two IBCL
statutes—Indiana Code Section 23-1-27-2(a) and Indiana Code Section 23-1-30-
2. Shareholders also contend that, “[e]ven if the trial court believed that these
statutory provisions did not independently prohibit S. Biglari’s misconduct, it
should have read these provisions in conjunction to fulfill the legislative intent
underlying the IBCL as a whole.” Appellants’ Br. p. 35.
[21] Shareholders’ arguments require that we interpret these statutes. The first step
in statutory interpretation is determining if the legislature has spoken clearly
and unambiguously on the point in question. Siwinski v. Town of Ogden Dunes,
949 N.E.2d 825, 828 (Ind. 2011). If a statute is clear and unambiguous on its
face, no room exists for judicial construction. Id. “We are not at liberty to
construe a facially unambiguous statute.” Id. “However, if a statute contains
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ambiguity that allows for more than one interpretation, it opens itself up to
judicial construction to effect the legislative intent.” Id.
A. Non-Voting Shares
[22] Indiana Code Section 23-1-27-2(a) provides: “A corporation may acquire its
own shares. Unless a resolution of the board of directors or the corporation’s
articles of incorporation provide otherwise, shares so acquired constitute
authorized but unissued shares.” Shareholders contend that unissued shares are
not entitled to vote.
[23] No Indiana or federal courts have addressed this statute. Under the plain,
unambiguous language of the statute, however, the statute is not applicable
here. The statute addresses a corporation acquiring its own shares. As
Defendants point out, the Biglari Holdings shares were acquired by the Lion
Funds, not Biglari Holdings. Biglari Holdings did not acquire its own shares,
and accordingly, the statute is inapplicable.
[24] Shareholders, however, argue that the share acquisitions at issue by Lion Funds
were “in sum and substance, reacquisitions by the Company that render the
Reacquired shares no longer entitled to vote.” Appellants’ Br. p. 23. According
to Shareholders, the Lion Funds are “mere instrumentalities” of Biglari
Holdings, and Shareholders advocate that we should disregard the “separate
corporate existences” between the Lion Funds and Biglari Holdings. Id. at 24.
[25] Corporate identity may be disregarded where one corporation is so organized
and controlled and its affairs so conducted that it is a mere instrumentality or
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 12 of 30
adjunct of another corporation. Konrad Motor & Welder Serv., Inc. v. Magnetech
Indus. Servs., Inc., 973 N.E.2d 1158, 1165 (Ind. Ct. App. 2012). “Indiana courts
will not recognize corporations as separate entities where evidence shows that
several corporations are acting as one.” Id. “A subset of piercing the corporate
veil to hold one corporation liable for the actions of another is the corporate
alter ego doctrine.” Id.
“The corporate alter ego doctrine is a device by which a plaintiff
tries to show that two corporations are so closely connected that
the plaintiff should be able to sue one for the actions of the
other.” [Ziese & Sons Excavating, Inc. v. Boyer Constr. Corp., 965
N.E.2d 713, 719 (Ind. Ct. App. 2012)] (quotation omitted). “The
purpose of the doctrine is to avoid the inequity that results when
one corporation uses another corporation as a shield from
liability.” Id. When a plaintiff seeks to pierce the corporate veil
using this doctrine, we consider additional factors, including
whether: (1) similar corporate names were used; (2) the
corporations shared common principal corporate officers,
directors, and employees; (3) the business purposes of the
corporations were similar; and (4) the corporations were located
in the same offices and used the same telephone numbers and
business cards. Id. Corporate identity may be disregarded under
the alter ego doctrine where multiple corporations are operated
as a single entity; where they are “manipulated or controlled as a
single enterprise through their interrelationship to cause illegality,
fraud, or injustice or to enable one economic entity to escape
liability arising out of an operation conducted by one corporation
for the benefit of the whole enterprise.” Id. (quotation omitted).
Factors indicating that a corporation is the alter ego of another
may include the intermingling of business transactions, functions,
property, employees, funds, records, and corporate names in
dealing with the public. Id.
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Konrad Motor & Welder Serv., 973 N.E.2d at 1165.
[26] The parties have not directed us to any cases applying the corporate alter ego
theory for the purpose of determining whether a corporation’s shares can be
voted. As we have noted, the corporate alter ego doctrine allows a plaintiff to
show that two corporations are so closely connected that the plaintiff should be
able to sue one for the actions of the other. That is not the situation we have
here; rather, the argument here concerns whether the Lion Funds were entitled
to vote its shares in Biglari Holdings. We decline Shareholders’ invitation to
twist the corporate alter ego doctrine and the clear language of the statute to fit
this situation. Indiana Code Section 23-1-27-2(a) is inapplicable here.
B. Circular Ownership
[27] Next, Shareholders argue that Indiana Code Section 23-1-30-2 was violated.
Indiana Code Section 23-1-30-2 provides:
(b) Absent special circumstances, the shares of a corporation are
not entitled to vote if they are owned, directly or indirectly, by a
second corporation, domestic or foreign, and the first corporation
owns, directly or indirectly, a majority of the shares entitled to
vote for directors of the second corporation.
(c) Subsection (b) does not limit the power of a corporation to
vote any shares, including its own shares, held by it in or for an
employee benefit plan or in any other fiduciary capacity.
[28] The Statute’s Official Comments state:
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(b) The [Indiana General Corporation Act (“GCA”) 4] prohibited
an issuing corporation from voting any share that “belongs” to
the corporation, IC 23-1-2-9(g), an unexplained term generally
considered to prohibit a subsidiary from voting shares of its
parent but whose application in other contexts was unclear. The
BCL expressly prohibits a subsidiary from voting shares of its
parent corporation, if the parent owns a majority of the
subsidiary’s shares. This language does not prohibit, however,
the voting of a corporation’s own shares in other circumstances
where the corporation may have the power to direct the voting,
such as shares owned by a limited partnership of which the
corporation is the general partner.
(c) The clause “in or for an employee benefit plan or in any
other” was added immediately before the words “fiduciary
capacity” to state expressly that a corporation has the right to
vote shares held by it in or for an employee benefit plan.
Ind. Code § 23-1-30-2, Official Commentary. The Official Commentary may be
used by this Court “to determine the underlying reasons, purposes, and policies
of this article and may be used as a guide in its construction and application.”
I.C. § 23-1-17-5. 5
4
The GCA was the predecessor to the IBCL.
5
Indiana Code Section 23-1-17-5 provides in full:
Official comments may be published by the general corporation law study commission
(P.L.237-1986) and the business law survey commission (IC 23-1-54-3). After their publication,
the comments may be consulted by the courts to determine the underlying reasons, purposes,
and policies of this article and may be used as a guide in its construction and application.
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[29] As explained by Professor Paul Galanti in the Indiana Practice Series on
Business Organizations, “[t]his restriction on circular ownership is designed to
prevent management from perpetuating control by direct or indirect corporate
ownership of its own shares.” 18 IND. PRAC., Business Organizations § 20.8
(2019). “Section 23-1-30-2(b) of the IBCL is not intended to affect the possible
applications of common law principles invalidating circular holding situations
not within its literal prohibition such as where the issuing corporation owns a
large but not a majority interest in the corporation voting the shares.” Id.
[30] Again, under the plain language of Indiana Code Section 23-1-30-2, the statute
is inapplicable here. The statute limits voting rights in certain circumstances
between two corporations. The Lion Funds, however, are limited partnerships,
not corporations. The Official Commentary specifically addressed a similar
situation involving a limited partnership when it stated: “This language does
not prohibit, however, the voting of a corporation’s own shares in other
circumstances where the corporation may have the power to direct the voting,
such as shares owned by a limited partnership of which the corporation is the
general partner.” Ind. Code § 23-1-30-2, Official Commentary. The circular
ownership prohibition of Indiana Code Section 23-1-30-2, accordingly, does not
apply here.
[31] We are constrained by the specific language of Indiana Code Section 23-1-20-2.
We acknowledge that Defendants structured these transactions in such a way
that the actions of Defendants are not prohibited by the IBCL. The statute,
however, unambiguously does not apply here.
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C. Conclusion Regarding Counts III and V
[32] Because Indiana Code Section 23-1-27-2(a) and Indiana Code Section 23-1-30-2
are inapplicable here, Shareholders’ claims that the voting of the Lion Funds
shares violated the IBCL fail. Even accepting Shareholders’ facts as stated in
their complaint as true, considering the allegations in the light most favorable to
the Shareholders, and drawing every reasonable inference in the Shareholders’
favor, we conclude that Shareholders are not entitled to relief on Counts III and
V. The trial court properly dismissed Counts III and V.
II. Counts I, II, IV, and VI - Indiana Dissenters’ Rights Statute
A. Summary
[33] We next address Defendants’ argument that the Shareholders’ remaining claims
are barred by the Indiana Dissenters’ Rights Statute, Indiana Code Chapter 23-
1-44. 6 In general, the Dissenters’ Rights Statute allows a shareholder to dissent
from certain corporate actions, including a merger, and obtain payment for the
fair value of the shareholder’s shares. Professor Galanti has explained that:
In lieu of the right to block the transaction, shareholders who
object to extraordinary corporate matters are given the right to
require the corporation to buy their shares at a value determined
in a statutorily defined manner. This permits them to withdraw
from the corporation while permitting the enterprise to continue
with those shareholders agreeable to the changes.
6
Defendants also argue that Counts III and V were barred by the Dissenters’ Rights Statute. Given our
resolution of Counts III and V, however, we need not address this argument.
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20 IND. PRAC., Business Organizations § 43.1 (2019) (footnote omitted). The
Dissenters’ Rights Statute provides the shareholder’s exclusive remedy in most
circumstances.
[34] If the merger at issue here is covered by the Dissenters’ Rights Statute, this
Court must determine whether the remaining Shareholders’ claims, which
relate to the Reclassification Agreement and merger, are covered by the
Dissenters’ Rights Statute and, therefore, barred. Count I claims that S. Biglari
breached his fiduciary duty by causing Biglari Holdings to enter into the
Reclassification Agreement. Count II similarly claims that the Board breached
its fiduciary duty by approving the Reclassification. Count IV is an unjust
enrichment claim against S. Biglari related to the consummation of the
Reclassification Agreement. Count VI seeks declaratory relief that the
Reclassification Agreement is void. Each of these claims relates to the
Reclassification Agreement, which implemented the merger.
B. Applicability of the Dissenters’ Rights Statute
[35] The Dissenters’ Rights Statute applies to the following corporate actions:
(1) Consummation of a plan of merger to which the corporation
is a party if:
(A) shareholder approval is required for the merger by IC
23-1-40, IC 23-0.6-1-7, or the articles of incorporation; and
(B) the shareholder is entitled to vote on the merger.
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(2) Consummation of a plan of share exchange to which the
corporation is a party as the corporation whose shares will be
acquired, if the shareholder is entitled to vote on the plan.
(3) Consummation of a sale or exchange of all, or substantially
all, of the property of the corporation other than in the usual and
regular course of business, if the shareholder is entitled to vote on
the sale or exchange, including a sale in dissolution, but not
including a sale pursuant to court order or a sale for cash
pursuant to a plan by which all or substantially all of the net
proceeds of the sale will be distributed to the shareholders within
one (1) year after the date of sale.
(4) The approval of a control share acquisition under IC 23-1-42.
(5) Any corporate action taken pursuant to a shareholder vote to
the extent the articles of incorporation, bylaws, or a resolution of
the board of directors provides that voting or nonvoting
shareholders are entitled to dissent and obtain payment for their
shares.
(6) Election to become a benefit corporation under IC 23-1.3-3-2.
I.C. § 23-1-44-8(a). 7 Because the corporate action challenged by Shareholders is
a merger that required shareholder approval, the Dissenters’ Rights Statute is at
issue here.
7
Indiana Code Section 23-1-44-8 was amended effective January 1, 2018, to insert “IC 23-0.6-1-7” in
subsection (a)(1)(A). See Pub. L. No. 118-2017, Sec. 20 (eff. Jan. 1, 2018).
Court of Appeals of Indiana | Opinion 19A-CT-101 | December 4, 2019 Page 19 of 30
[36] Shareholders’ main argument, however, is that the Dissenters’ Rights Statute is
inapplicable because the merger was not approved by a majority of properly
voting shareholders. 8 Defendants argue that the Shareholders did not make this
argument below and that the argument is waived. Shareholders contend the
issue was raised in the complaint and argued at the motion to dismiss hearing.
See Appellants’ App. Vol. II p. 19 (“[T]he Reclassification would not have been
approved but for S. Biglari’s illegal voting of the Reacquired Shares in favor of
this unfair transaction.”); Tr. Vol. II p. 30 (“[T]he Dissenters’ Rights Statute
only gives finality to mergers that were approved by a majority. So we’re
asking the Court here to actually enforce the will of the majority that was
entitled to vote on this reclassification.”). We do not find this issue waived.
8
With little explanation and no citations to authority, Shareholders also argue that the Dissenters’ Rights
Statute does not bar their “breach of contract and declaratory judgment claims to the extent they seek
prospective relief barring these shares from remaining outstanding and entitled to vote.” Appellants’ Br. p.
39. This argument appears to relate to Counts III and V. We conclude that this argument is waived for
failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8); Zavodnik v. Harper, 17 N.E.3d 259, 264
(Ind. 2014) (waiving a claim due to failure to support the claim with cogent argument or citation to relevant
authority).
Shareholders also contend that S. Biglari structured the Reclassification of shares as a merger specifically to
take advantage of the Dissenters’ Rights Statute. According to Shareholders, the Reclassification of shares
could have been accomplished through “a charter or bylaw amendment,” but S. Biglari structured it as a
merger to strip shareholders of their rights. Appellants’ Br. p. 42. Defendants point out that this argument
was addressed by our Supreme Court in Fleming v. Int’l Pizza Supply Corp., 676 N.E.2d 1051, 1056 (Ind. 1997),
where it held:
[W]e think it unmistakably clear that the legislature meant to reject the [Gabhart v. Gabhart, 370
N.E.2d 345 (1972),] analysis that a merger which has no valid corporate purpose is a de facto
dissolution. In our view, the legislature clearly disapproved not only the alternative dissolution
remedy but also the notion the judicial inquiry into the purpose of the merger was permitted.
And we would also observe that the legislature’s approach incorporated Gabhart’s teachings that
a shareholder’s appraisal right could not be enforced by enjoining the merger, 267 Ind. at 383,
370 N.E.2d at 353; and that the judiciary should not intrude into corporate management to the
extent of passing upon the “entire fairness” of a merger. 267 Ind. at 388, 370 N.E.2d at 356.
Based on Fleming, the Shareholders’ argument fails.
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[37] According to Shareholders, the Lion Funds shares were not entitled to vote on
the merger. Shareholders contend that “only transactions that require and
receive approval from a majority of shareholders—and, therefore, comport with
the ‘majority rule’ policy—trigger the dissenters’ rights statute. The
Reclassification cannot pass that test because it did not receive approval by a
majority of the shares ‘entitled to vote’ on it.” Appellants’ Br. p. 40. We have,
however, concluded that the Lion Funds properly voted its shares. See supra
Section I. Accordingly, Shareholders’ argument fails, and the Dissenters’
Rights Statute is applicable here.
C. Statutory Remedies
[38] In the event of the above corporate actions, including a merger, Indiana Code
Section 23-1-44-8(a) provides that “[a] shareholder is entitled to dissent from,
and obtain payment of the fair value[ 9] of the shareholder’s shares.” The statute
provides very specific instructions on notices required to be sent to
shareholders, procedures for payment to dissenting shareholders, and judicial
determination of the fair value of shares in the case of a closely-held
corporation. See Ind. Code Chapter 23-1-44.
[39] The remedy for a shareholder of a publicly-traded company, however, is
different. Indiana Code Section 23-1-44-8(b) provides:
9
“Fair value” means “the value of the shares immediately before the effectuation of the corporate action to
which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action
unless exclusion would be inequitable.” Ind. Code § 23-1-44-3.
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This section [Indiana Code Section 23-1-44-8] does not apply to
the holders of shares of any class or series if, on the date fixed to
determine the shareholders entitled to receive notice of and vote
at the meeting of shareholders at which the merger, plan of share
exchange, or sale or exchange of property is to be acted on, the
shares of that class or series were a covered security under
Section 18(b)(1)(A) or 18(b)(1)(B) of the Securities Act of 1933,
as amended.
As a result, Professor Galanti has explained that “[d]issenters’ rights are not
available for the shareholders of corporations party to a merger, plan of share
exchange, or sale or exchange of property, when the shares are publicly traded.”
20 IND. PRAC., Business Organizations § 43.3 (2019). “This is the market
exception to dissenters’ rights, sometimes referred to as the Wall Street Rule
because shareholders who are dissatisfied with the terms of a merger can sell
their shares.” Id. Because Biglari Holdings is a publicly traded company, the
Shareholders do not have the ability to obtain payment from the company for
the “fair market value” of the shares through a valuation proceeding; rather, the
Shareholders’ sole remedy is to sell their shares on the market.
D. Exclusivity of Remedies
[40] The remedies provided in the Dissenters’ Rights Statute are the exclusive
remedies for dissenting shareholders. Indiana Code Section 23-1-44-8(d) states:
A shareholder:
(1) who is entitled to dissent and obtain payment for the
shareholder’s shares under this chapter; or
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(2) who would be so entitled to dissent and obtain payment but
for the provisions of subsection (b);
may not challenge the corporate action creating (or that, but for
the provisions of subsection (b), would have created) the
shareholder’s entitlement.
[41] The Official Commentary to subsection (d) of the statute provides some
background and explanation of this subsection:
Subsection (d), which establishes the exclusivity of Chapter 44’s
dissenters’ rights remedies, deletes [Revised Model Business
Corporation Act (“RMA”)] language stating that such rights are
exclusive “unless the action is unlawful or fraudulent with
respect to the shareholder or the corporation.” Deletion of this
language reflects a conscious response to the Indiana Supreme
Court’s decision in Gabhart v. Gabhart, 370 N.E.2d 345 (1972).
The omission of this language was continued in the 2009
amendments to the BCL.
Gabhart involved the interpretation of the GCA exclusivity
provision, IC 23-1-5-7(c) (repealed 1986), which provided:
Every shareholder who did not vote in favor of such
merger, consolidation, or exchange and who does not
object in writing and demand payment of the value of his
shares at the time and in the manner stated in this section
shall be conclusively presumed to have assented to such
merger, consolidation, or exchange.
Notwithstanding this language, the Gabhart court held that a
minority shareholder was entitled to challenge a “freeze-out”
merger as a de facto dissolution if the merger did not have a
“valid purpose” - defined by the Court as a purpose intended to
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advance a corporate interest. Gabhart refused to adopt the
approach of the then-leading Delaware case, Singer v. Magnavox
Co., 380 A.2d 969 (Del. 1977) (later overruled in Weinberger v.
UOP, Inc., 457 A.2d 701, 703 (Del. 1983)), which permitted
judicial inquiry into the entire fairness of the transaction on the
basis of fiduciary duty owed to minority shareholders. The
Gabhart court also found that IC 23-1-5-7(c) (repealed 1986) did
establish the exclusive remedy for mergers with a “valid
purpose.” Absent such a “valid purpose,” however, Gabhart held
that minority shareholders were not limited to statutory appraisal
rights but could also seek to enjoin the corporate transaction
creating those rights.
Whether or not Gabhart correctly interpreted the GCA’s
exclusivity provision, the Commission believed the decision
created substantial uncertainty about whether and to what extent
minority shareholders could seek to enjoin or undo corporate
transactions authorized by statute and approved by the majority.
Given the potential for disruption of corporate transactions were
a Gabhart rule applied to the BCL, the General Assembly
adopted subsection (d)[ 10] as a categorical statutory rule that
shareholders entitled to dissenters’ rights may not challenge the
corporate action creating that entitlement. Hence, the kind of
minority shareholder challenge to corporate action permitted by
Gabhart under IC 23-1-5-7(c) (repealed 1986) is not permitted
under subsection (d). Consistent with this approach, the revised
RMA exception to exclusivity for transactions between a
10
Again, Indiana Code Section 23-1-44-8(d) provides:
A shareholder:
(1) who is entitled to dissent and obtain payment for the shareholder’s shares under this chapter;
or
(2) who would be so entitled to dissent and obtain payment but for the provisions of subsection
(b);
may not challenge the corporate action creating (or that, but for the provisions of subsection (b),
would have created) the shareholder’s entitlement.
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corporation and certain interested parties has not been included
in the BCL.
In 1987, subsection (d) was amended to extend this categorical
prohibition to shareholders who would be entitled to dissenters’
rights but for the “market exception” of subsection (b). Such
shareholders, who have the ability to sell their shares in a
recognized market and at a market price, also may not challenge
the corporate action that (but for the “market exception”) would
have created dissenters’ rights.
Consequently, the Dissenters’ Rights Statute “provides the exclusive remedy for
minority shareholders challenging a proposed merger.” Settles v. Leslie, 701
N.E.2d 849, 853 (Ind. Ct. App. 1998).
[42] A shareholder’s ability to bring a breach of fiduciary duty claim in the context
of a merger or other covered corporate action is also limited by the Dissenters’
Rights Statute. In the context of a closely-held corporation, our Supreme Court
has held that the Dissenters’ Rights Statute gives the minority shareholder the
opportunity to raise such a claim only during judicial valuation proceedings.
Fleming v. Int’l Pizza Supply Corp., 676 N.E.2d 1051, 1057 (Ind. 1997). The
shareholder may argue during those proceedings that the shares were valued
too low due to breach of fiduciary duty and fraud by majority shareholders. Id.
The Supreme Court held:
We conclude that the legislature meant to limit a dissenting
shareholder seeking payment for the value of the shareholder’s
shares to the statutory appraisal procedure. This accords with
the policies of corporate majority rule and of ascertaining
dissenters’ claims on a timely basis. But we also conclude that
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the legislature did not foreclose the ability of dissenting
shareholders to litigate their breach of fiduciary duty or fraud
claims within the appraisal proceeding. That is, it is perfectly
consistent with the shareholder’s claim for payment in the
appraisal process for the shareholder to allege that the value
assigned to the shares in the merger or asset sale was too low
because of the breach of fiduciary duty or fraud on the part of
majority shareholders.
Id. The Court agreed that “the expression ‘corporate action to which the
dissenter objects’ as used in Ind. Code § 23-1-44-3 includes not only the merger
or asset sale itself but genuine issues of breach of fiduciary duty and fraud
affecting the value of the shares at the time of the transaction.” Id. at 1058; see
also Lees Inns of Am., Inc. v. William R. Lee Irrevocable Tr., 924 N.E.2d 143, 155-
161 (Ind. Ct. App. 2010) (discussing the proper valuation of a dissenting
shareholder’s shares where breach of fiduciary duties was demonstrated), trans.
denied.
[43] For example, in Trietsch v. Circle Design Group, Inc., 868 N.E.2d 812 (Ind. Ct.
App. 2007), in the context of a closely-held corporation, a shareholder sought
money damages for the directors’ actions that resulted in a sale of assets. We
held that the shareholder was precluded from recovering such damages because
Indiana’s Dissenters’ Rights Statute was the exclusive remedy for actions or
omissions in a merger or sale of assets. Trietsch, 868 N.E.2d at 820 (citing
Galligan v. Galligan, 741 N.E.2d 1217, 1225-26 (Ind. 2001)).
[44] Here, as shareholders of a publicly-traded corporation, the Shareholders’
remedies under the Dissenters’ Rights Statutes are limited to selling their shares,
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and the exclusivity provisions limit their ability to challenge the corporate
action, even through a breach of fiduciary action claim. Despite these
provisions, Shareholders argue that they are entitled to monetary damages for
their breach of fiduciary duty and unjust enrichment claims:
[A]llowing post-closing claims for purely monetary damages—
like Plaintiffs’ breach of fiduciary duty and unjust enrichment
claims here—in situations where shareholders would otherwise
lack any judicial remedy at all comports with both (1) what
Defendants identify as the purpose of the dissenters’ rights statute
(i.e., to deter injunctive claims), and (2) “the Supreme Court of
Indiana[’s] . . . strong reluctance to foreclose all judicial remedies
for a director’s breach of duty.”
Appellants’ Br. p. 43 (footnote omitted, citations omitted). This argument,
however, goes against the exclusivity provisions of the Dissenters’ Rights
Statute.
[45] In support of their arguments, Shareholders rely on Shepard v. Meridian Insurance
Group, 137 F. Supp. 2d 1096 (S.D. Ind. 2001). 11 Shepard addressed the
Dissenters’ Rights Statute in the context of a publicly-traded company’s “cash-
out” merger, but a “cash-out” merger is not at issue here.12 The shareholder in
11
Shareholders also rely on Orlando v. CFS Bancorp, Inc., No. 2:13-CV-261 JD, 2013 WL 5797624 (N.D. Ind.
Oct. 28, 2013). The Court in Orlando, however, specifically did not address whether the Indiana Dissenters’
Rights Statute barred plaintiff’s requested relief. Id. at *4. Consequently, Orlando is not persuasive here.
12
“[A] ‘freeze-out’ or ‘cash-out’ merger . . . occurs when the target corporation is merged into a wholly
owned subsidiary of the acquirer, and the minority shareholders in the target corporation are forced to
surrender their shares.” 19 AM. JUR. 2D Corporations § 2181; see also 19 AM. JUR. 2D Corporations § 2165.
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Shepard alleged that the company’s directors “breached their duties to him and
to other shareholders by failing to exercise reasonable care and by failing to
secure a better offer” for the company’s shares in the cash-out merger. Shepard,
137 F. Supp. 2d at 1099. The shareholder sought injunctive relief to block the
merger and compensatory and punitive damages.
[46] The issue in Shepard was “whether and how Indiana law would provide
shareholders or the corporation any remedy for the directors’ assumed breach of
their duty of loyalty and due care to the corporation and to its shareholders
when approving a cash-out merger for a publicly traded corporation.” Id. at
1103. The court noted the differences between the Dissenters’ Rights Statute
remedies for publicly-traded companies and privately-held companies. “A
shareholder who dissents from a merger of a privately held company may reject
the company’s offer of ‘fair value,’ which forces the company to file a judicial
appraisal proceeding under the dissenters’ rights statute to determine ‘fair value’
for the shares pursuant to Ind. Code § 23-1-44-19.” Id. at 1102. On the other
hand, in the case of a publicly-traded company, the shareholder must simply
sell his or her shares at the market price.
Because the proposed merger with State Auto is a “cash-out”
merger, Shepard contends that a sale of his shares at the market
price would not provide him with a meaningful remedy for the
wrongs he alleges here. The market price for MIGI stock reflects
the agreed price for the merger. Shepard claims that the directors
breached their duties by agreeing to that very price. Also, there is
no reason to expect that the prospect of any future derivative
claims could be factored into that price. As discussed below, if
and when the merger closes, all the shareholders hurt by the
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alleged wrongs will lose their shares and thus also their standing
to pursue such claims.
Id. at 1102-03 (emphasis added). The court considered several options and
ultimately predicted that, in the case of a cash-out merger, the Indiana Supreme
Court would allow “a post-merger direct action by an individual shareholder for
monetary relief.” Id. at 1112.
[47] Shareholders argue that Shepard “conclusively” proves that the Dissenters’
Rights Statute is not a “categorial bar to every conceivable challenge to a
merger.” Appellants’ Reply Br. p. 20. Shepard, however, merely left open the
possibility that the Indiana Supreme Court might allow a direct action by
shareholders for monetary damages after a cash-out merger. Indiana courts
have not addressed this issue since Shepard.
[48] Moreover, the Biglari Holdings merger does not involve a cash-out merger.
Shepard also noted:
In many situations, such a sale may provide a dissenting
shareholder with an adequate remedy. The market exception is
based on the assumption that the market price of the shares
reflect a current fair valuation of those shares. Even if officers
and directors have breached their duties in ways that have
depressed the price of the stock (for example, by agreeing to a
sale of assets at too low a price), one could expect, at least
theoretically, that the market price would also include an
adjustment or valuation for any potential shareholder derivative
claims against the officers or directors for earlier wrongs.
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Shepard, 137 F. Supp. 2d at 1099. This is exactly the situation we have here.
Shareholders’ sole remedy under the Dissenters’ Rights Statute was to sell their
shares; a direct action for post-closing monetary damages for breach of fiduciary
duty or unjust enrichment was not permitted by the Statute.
E. Conclusion Regarding Counts I, II, IV, and VI
[49] Counts I, II, and IV included breach of fiduciary duty and unjust enrichment
claims related to the Reclassification Agreement, while Count VI sought
declaratory relief that the Reclassification Agreement is void. We conclude that
each of these claims, which relates to the merger, is barred by the Dissenters’
Rights Statute. Even accepting Shareholders’ facts as stated in their complaint
as true, considering the allegations in the light most favorable to the
Shareholders, and drawing every reasonable inference in the Shareholders’
favor, we conclude that Shareholders are not entitled to relief on Counts I, II,
IV, and VI. The trial court properly granted Defendants’ motion to dismiss
regarding Counts I, II, IV, and VI of the complaint.
Conclusion
[50] The trial court properly dismissed Shareholders’ complaint. We affirm.
[51] Affirmed.
Crone, J., and Altice, J., concur.
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