Chitwood v. Vertex Pharmaceuticals, Inc. , 476 Mass. 667 ( 2017 )

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SJC-12101
FRED CHITWOOD vs. VERTEX PHARMACEUTICALS, INC.
Suffolk. November 9, 2016. - March 20, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.1
Corporation, Stockholder, Custodian of corporate records.
Civil action commenced in the Superior Court Department on
August 15, 2013.
The case was heard by Janet L. Sanders, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Steven J. Purcell, of New York (Justin Sherman, of New
York, & Mitchell J. Matorin also present) for the plaintiff.
R. Todd Cronan (William B. Brady also present) for the
defendant.
Ben Robbins & Martin J. Newhouse, for New England Legal
Foundation, amicus curiae, submitted a brief.
GANTS, C.J. Under G. L. c. 156D, § 16.02 (b), of the
Massachusetts Business Corporation Act (act), a shareholder of a
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
corporation, upon written notice, is entitled to inspect and
copy various categories of corporate records if the shareholder
makes the demand "in good faith and for a proper purpose," and
if the particular records sought to be inspected are "directly
connected" with that purpose. The plaintiff, Fred Chitwood, a
shareholder of the defendant Vertex Pharmaceuticals, Inc.
(Vertex or the corporation), made a demand for corporate records
pursuant to § 16.02 (b), claiming that inspection of the records
was needed to investigate his allegation that the board of
directors had committed a breach of its fiduciary duty of
oversight with regard to Vertex's financial reporting and
insider stock sales. Vertex "rejected" the demand, claiming
that the demand was "invalid under Massachusetts law" and that
it was improper because the board, following a reasonable
inquiry by a special committee of independent directors, had
rejected his earlier demand to commence derivative litigation
based on the same allegations of misconduct. The plaintiff
commenced an action in the Superior Court, seeking an order
compelling Vertex to make the requested corporate records
available to the plaintiff. After a bench trial, the judge
dismissed the complaint with prejudice, concluding that the
plaintiff had failed to meet his burden of showing a proper
purpose.
3
The issue on appeal is whether the judge applied the
correct standard regarding the proper purpose required to
inspect corporate records under § 16.02 (b). We conclude that
she did not. Because the judge applied too demanding a standard
and because the scope of the demand made by the shareholder far
exceeded the authorized scope of inspection under § 16.02 (b),
we vacate the judgment dismissing the shareholder's claim for
inspection and remand the case for further proceedings
consistent with this opinion.2
The right of inspection. Under § 16.02, a shareholder of a
Massachusetts corporation is entitled to inspect two categories
of corporate records. The first category of records, delineated
in G. L. c. 156D, § 16.01 (e), includes the corporation's
articles of organization and bylaws (and all amendments
thereto); resolutions adopted by the board of directors creating
one or more classes of shares, and setting the rights,
preferences, and limitations of those classes of shares (where
the shares issued are outstanding); the minutes of all
shareholders' meetings, as well as the records of all actions
taken by shareholders without a meeting, for the past three
years; all written communications to shareholders within the
past three years, including the annual financial statements
2
We acknowledge the amicus brief submitted by the New
England Legal Foundation.
4
provided to shareholders, for the past three years; the names
and business addresses of the corporation's current directors
and officers; and the corporation's most recent annual report
delivered to the Secretary of State. To inspect the corporate
records in this first category, a shareholder need only provide
written notice at least five business days before the
shareholder wishes to inspect and copy; no showing of good faith
or proper purpose is required. G. L. c. 156D, § 16.02 (a).
The second category of records, delineated in G. L.
c. 156D, § 16.02 (b), includes records of "excerpts from minutes
reflecting action taken" by the board of directors or a
committee acting in place of the board;3 the "accounting records
of the corporation, but if the financial statements of the
corporation are audited by a certified public accountant,
inspection shall be limited to the financial statements and the
supporting schedules reasonably necessary to verify any line
item on those statements;" and the list of the names and
addresses of all corporate shareholders, showing the number and
class of shares held by each. See G. L. c. 156D, § 16.01 (c).
3
The full text of G. L. c. 156D, § 16.02 (b) (1), provides
for the inspection and copying of "excerpts from minutes
reflecting action taken at any meeting of the board of
directors, records of any action of a committee of the board of
directors while acting in place of the board of directors on
behalf of the corporation, minutes of any meeting of the
shareholders, and records of action taken by the shareholders or
board of directors without a meeting, to the extent not subject
to inspection under [§ 16.02 (a)]."
5
To inspect this second category of corporate records a
shareholder not only must provide five days' written notice but
also must meet the following three requirements: (1) the
shareholder must show that the "demand is made in good faith and
for a proper purpose," (2) the shareholder must describe "with
reasonable particularity his purpose and the records he desires
to inspect," and (3) the shareholder must show that "the records
are directly connected with his purpose." G. L. c. 156D,
§ 16.02 (c). In interpreting the meaning of these requirements,
we are guided by the comments prepared by the task force on the
revision of the Massachusetts business corporation law that
drafted the act, "which included more than fifty experienced
Massachusetts corporate lawyers." See Halebian v. Berv, 457
Mass. 620, 625 (2010), citing comment to G. L. c. 156D, 25 Mass.
Gen. Laws Ann. at 48 (West Supp. 2010).
"A 'proper purpose' means a purpose that is reasonably
relevant to the demanding shareholder's interest as a
shareholder." Comment to G. L. c. 156D, 25A Mass. Gen. Laws
Ann. at 46 (West Supp. 2016) (comment). The drafters also noted
that the phrase "proper purpose" is "well understood" and that
the "very substantial case law defining 'proper purpose' will
continue to be applicable." Id. That case law recognizes that
"[s]tockholders are the beneficial owners of all the assets of
the corporation, and they are entitled to reliable information
6
as to the financial condition of the corporation, the manner in
which business has been conducted and its affairs have been
managed, and whether those to whom they have entrusted their
property have acted faithfully and efficiently in the interests
of the corporation." Albee v. Lamson & Hubbard Corp., 320 Mass.
421, 424 (1946). A proper purpose is one that protects the
shareholder's rights as an owner in the corporation and that
advances the interests of the corporation itself. Id. A
shareholder's purpose is improper where it is driven by "mere
curiosity," speculation, or vexatious motives (citation
omitted). Gavin v. Purdy, 335 Mass. 236, 239 (1957). See
Albee, supra (shareholder has no "right to an examination if his
purpose be to satisfy his curiosity, to annoy or harass the
corporation, or to accomplish some object hostile to the
corporation or detrimental to its interests").
"Good faith," paired as it is with "proper purpose," means
that the stated proper purpose also must be the shareholder's
true purpose. See Gavin, 335 Mass. at 239 (shareholder must act
with "an honest purpose, not adverse to the interests of the
corporation"); Albee, 320 Mass. at 424 (stockholder "who is
acting in good faith" for proper purpose "is generally entitled
to examine the corporate records and accounts"). This
understanding of the meaning of good faith is supported by the
Uniform Commercial Code's definition of "good faith," which
7
requires "honesty in fact and the observance of reasonable
commercial standards of fair dealing." G. L. c. 106, § 1-201
(20).
The other requirements -- that the shareholder state his or
her purpose and the records sought with reasonable
particularity, and that the records sought be connected with
that purpose -- allow a fact finder to test whether the
shareholder's true purpose is a proper purpose. See comment,
supra at 46 (eliciting "more meaningful statements of purpose"
avoids "harassment under the guise of inspection"). Where the
specific records sought have no relevant connection to the
shareholder's stated purpose, a fact finder may infer that the
stated purpose for inspection is not the true purpose, and that
inspection of those records is sought for another purpose that
the shareholder chose not to articulate because it would likely
be found improper.4
Where a shareholder makes a demand in good faith and for a
proper purpose, stated with reasonable particularity, for
records that are relevant to that purpose, the corporation must
allow the inspection unless it can show that it has "determined
in good faith that disclosure of the records sought would
4
The drafters note that, where a corporation disputes the
"connection" or relevancy of the requested records, a judge may
review the records in camera before determining the validity of
the claim. Comment to G. L. c. 156D, § 16.02, 25A Mass. Gen.
Laws Ann. at 46 (West Supp. 2016).
8
adversely affect the corporation in the conduct of its business
or, in the case of a public corporation, constitute material
non-public information at the time when the shareholder's notice
of demand to inspect and copy is received by the corporation."
G. L. c. 156D, § 16.02 (c) (4). Where the corporation for any
reason does not allow the inspection and copying of the
requested records within a reasonable time, the shareholder may
apply to the Superior Court for an order to permit inspection
and copying, and that application shall be adjudicated "on an
expedited basis." G. L. c. 156D, § 16.04 (b).
The right of inspection under § 16.02 is "an independent
right of inspection"; it is not intended to substitute for or
diminish any rights of inspection that may exist under another
statute, the common law, or the right of discovery in
shareholder litigation. See G. L. c. 156D, § 16.02 (e);
comment, supra at 46.
Background. We turn now to the complaint under § 16.04 (b)
that initiated this litigation. According to that complaint,
the defendant corporation develops and manufactures drugs for
the treatment of serious diseases. In the spring of 2012, the
corporation announced in a press release the interim results of
"phase two" of a study regarding the effectiveness of two of its
drugs to treat cystic fibrosis. As a result of that
announcement, which suggested a medical breakthrough, the
9
corporation's stock price "rose precipitously." Three weeks
later, the corporation issued a new press release, which
suggested that the phase two study did not reflect a medical
breakthrough, and the corporation's stock price declined on this
news. Between the first and the second announcement, seven of
the corporation's officers and directors sold over $37 million
in corporation stock.
In November, 2012, the plaintiff5 sent a letter to the
corporation's board of directors detailing what he characterized
as the "false and misleading statements" in the first
announcement and identifying the officers and directors he
contended had wrongfully engaged in insider trading prior to the
second announcement. He demanded that the board initiate
litigation on behalf of the corporation against the parties
responsible for issuing the false and misleading statements,
require the insiders who profited from the insider trading to
disgorge the profits, and that the board institute meaningful
corporate reforms.
In response, the board established a special committee of
independent directors to investigate the plaintiff's
allegations, and retained outside counsel to assist in the
5
The plaintiff became the interested shareholder and
replaced the person identified in the November, 2012, letter to
the corporation's board of directors after it became clear that
the individual identified in the November letter was not in fact
a shareholder at the time of the relevant events.
10
investigation. In April, 2013, the board informed the plaintiff
by letter that the special committee had completed its
investigation and reported its findings to the board, and that a
majority of the independent directors had determined that there
was no breach of fiduciary duty by any officer or director of
the corporation and that a shareholder derivative action was not
in the best interests of the corporation. The letter briefly
described the conduct of the investigation and provided a
summary of its principal findings, but did not append the
written report provided by the special committee to the board.
On June 19, 2013, the plaintiff shareholder made a written
demand under § 16.02 to inspect the corporation's books and
records "to investigate potential wrongdoing, mismanagement, and
breaches of fiduciary duties by the members of the [b]oard or
others in connection with the events, circumstances, and
transactions" described earlier. The shareholder asserted that
he did not believe the corporation's investigation "properly or
adequately responded to the concerns expressed" in the November,
2012, letter demanding the initiation of shareholder derivative
litigation. The shareholder demanded the inspection and copying
of seven categories of records, including the records and
minutes of all meetings of the board and the special committee
regarding these issues, the special committee's final report and
any drafts of the report, all documents distributed at any
11
meeting of the board or the special committee, all documents
concerning the results of the internal review of the phase two
study, copies of all policy and procedure manuals and other
documents describing the corporation's internal control
practices regarding the selection and oversight of contractors
to perform drug trials and studies for the corporation, and
calendars to show the number and duration of meetings of the
board and the special committee.
On June 26, the board, through counsel, rejected the June
19 demand for inspection and identified four reasons for the
rejection. First, the board contended that the demand was not
made for a "proper purpose" because the shareholder sought the
inspection of the corporation's books and records under § 16.02
for the purpose of investigating potential wrongdoing but had
failed to present any credible basis to infer that that were
legitimate issues that warranted further investigation.
Second, the board contended that the demand lacked a
"proper purpose" because it essentially sought discovery in
support of the shareholder's derivative demand allegations that
the shareholder would be barred from obtaining had he brought a
shareholder derivative action under G. L. c. 156D, § 7.44. The
board noted that § 7.44 provides that a derivative action
commenced after rejection of a demand shall be dismissed on
motion of the corporation where a judge finds that a majority of
12
the independent directors present at a meeting of the board of
directors (where the independent directors constitute a quorum)
had determined in good faith after conducting a reasonable
inquiry that a derivative action would not be in the best
interests of the corporation. The board also noted that a court
may stay discovery in a derivative proceeding while the
corporation's motion to dismiss is pending. See G. L. c. 156D,
§ 7.43.
Third, the board claimed that the demand was "overbroad and
far exceeds the narrow scope of records available for
inspection" under § 16.02.
Fourth, the board claimed that it had made a good faith
determination that disclosure of the records sought would
adversely affect the corporation in the conduct of its business,
and that the requests call for the disclosure of non-public
material information.
On August 15, 2013, the shareholder filed suit under G. L.
c. 156D, § 16.04, seeking an order compelling the corporation to
allow the inspection and copying of the books and records he had
demanded in his June 19 letter. The shareholder's complaint,
which, under § 16.04 (b), was to be resolved on an "expedited
basis," was not resolved for nearly two years when, on August 4,
2015, final judgment entered dismissing the complaint with
prejudice. During those two years, cross motions for judgment
13
on the pleadings were denied, as was the corporation's motion
for summary judgment, and evidence was taken during a one-day
bench trial where the plaintiff shareholder and a board member
of the corporation, who also served as chair of its audit
committee, testified.
In her findings of fact and conclusions of law, the trial
judge recognized that the plaintiff shareholder's demand was
overbroad and that, if he prevailed, his right to inspect
corporate records under § 16.02 (b) would be limited to
"excerpts from minutes reflecting any action taken at any
meeting of the board of directors [and] records of any action
of" the special committee. The judge concluded that the
plaintiff was not entitled to inspect even this narrow swath of
records because he had failed to meet his burden of showing a
proper purpose. The judge noted that the chronology of events
regarding the sale of stock by corporate insiders after "the
admittedly erroneous May 7 press release" and before the "May 29
correction" had prompted a United States Senator to ask the
Securities and Exchange Commission to examine the matter. But
the judge declared that, where a shareholder seeks to inspect
corporate records under § 16.02 (b) to investigate allegations
of corporate wrongdoing and mismanagement, the shareholder "must
present some evidence of wrongdoing; simply relying on the
timing of certain events is not sufficient" (emphasis in
14
original).6 The judge found that the shareholder had offered no
evidence "calling into question the independence of the
[s]pecial [c]ommittee or the diligence of its efforts."
The judge found additional support for her conclusion that
the plaintiff is not entitled to inspection of the records under
§ 16.02 because she concluded that, if the shareholder were to
bring a derivative suit under G. L. c. 156D, § 7.44, based on
the evidence he presented at trial, he would not be entitled to
any discovery. The judge noted that a corporation in a
derivative action is entitled to dismissal if a majority of the
independent directors present at a board of directors meeting
(where the independent directors constitute a quorum) determine
"in good faith after conducting a reasonable inquiry upon which
its conclusions are based that the maintenance of the derivative
proceeding is not in the best interests of the corporation."
§ 7.44 (a). The judge also noted that, if the corporation were
to move to dismiss a derivative action, all discovery would be
stayed pending resolution of the motion unless the judge, on
6
The judge found guidance in a Massachusetts Superior Court
decision which declared that "a purpose to investigate possible
waste, mismanagement or other wrongdoing is a proper purpose
under [the Delaware inspection statute, [Del. Code Ann. tit. 8,
§ 220 (LexisNexis 2011)], provided that the shareholder presents
some evidence that establishes a credible basis from which a
court can infer the existence of legitimate issues as to such
conduct warranting further investigation." Gent vs. Teradyne,
Inc., Superior Court, No. 07-04676-BLS2 (Oct. 8, 2010), citing
Seinfeld v. Verizon Communications, Inc., 909 A.2d 117, 118, 122
(Del. 2006).
15
good cause shown, ordered that specified discovery be conducted.
§ 7.44 (d). In the absence of good cause, discovery would
proceed only if the motion to dismiss were denied, and the
motion would be denied only where the shareholder had alleged
"with particularity" facts that rebutted the facts presented by
the corporation showing that a majority of the board of
directors was independent when the independent directors decided
not to proceed with the derivative action and that their
determination was made in good faith after conducting a
reasonable inquiry. Id. The judge concluded that allowing
inspection under § 16.02 would render those limitations on
discovery "meaningless."
Discussion. Viewed from the perspective of the appellate
bench, this was an expensive litigation war of attrition that
was fought over nearly nothing. The seven categories of records
that the shareholder demanded under § 16.02 far exceed the scope
of records that are within the right of inspection under
§ 16.02. They are precisely the type of records that a
plaintiff shareholder might seek in discovery in a derivative
action in an attempt to show that the special committee's
inquiry into the allegations was not reasonable or that the
independent directors did not act in good faith. But, as the
judge found, within these seven categories of records, the only
records within the scope of the right of inspection under
16
§ 16.02 were the excerpts of minutes or comparable records that
reflected the actions taken at meetings of the board of
directors or meetings of the special committee. The drafters'
comments make clear that they intended "to permit inspection of
votes or action taken on relevant matters, not of reports,
discussion or decisions not to act on a matter." Comment, supra
at 45. The drafters added, "Shareholders may have a legitimate
interest in reviewing whether action was properly taken by the
board of directors, but giving them a statutory right to examine
the remainder of the minutes of a board or committee meeting
could inhibit frank discussion or the disclosure of sensitive
matters to the directors to enable them to exercise their
fiduciary responsibilities." Id. In short, under § 16.02, a
shareholder is entitled to inspect the original minutes of a
board or committee meeting only to learn what action was taken
at those meetings; it does not provide a right of inspection of
the documents that were provided to board members for
consideration of that proposed action or of the minutes
memorializing the debate at the board or committee meeting as to
whether to take that action.
Where, as here, a shareholder demands that the corporation
initiate a derivative action based on allegations of insider
trading after an inaccurate public announcement of the results
of drug testing that suggested an apparent scientific
17
breakthrough, and where the corporation declines to do so, a
shareholder has a proper purpose in asking to inspect the
excerpts of the original minutes of the meetings of the board of
directors and the special committee that reflect the actions
taken at those meetings regarding the requested derivative
action.7 The minutes may well say nothing different regarding
these actions from what the corporation's attorney described in
the letter informing the shareholder of the corporate decision
to decline to proceed with the derivative action, but the
shareholder is entitled, as the Russian proverb says, to "trust
but verify."8 The shareholder need not, as the judge ruled,
provide evidence of wrongdoing beyond the timing of the press
releases and the insider trades to obtain these excerpts of the
original minutes. The desire to verify the action taken by the
special committee and the board in response to these allegations
is a purpose that is "reasonably relevant to the demanding
shareholder's interest as a shareholder." See comment, supra at
46.
7
The mere fact that the plaintiff's request was indeed
overbroad does not alone establish an absence of good faith.
8
The Russian proverb "trust, but verify" became famous in
the United States when former President Ronald W. Reagan quoted
it with respect to his nuclear disarmament discussions with the
Soviet government. See e.g., The Signing: 'Universal
Significance for Mankind,' N.Y. Times, Dec. 9, 1987, at A21.
18
The judge erred in applying a standard derived from
Delaware law in determining whether the shareholder had a proper
purpose. In Delaware, as in Massachusetts, a shareholder's
desire to investigate corporate wrongdoing or mismanagement is a
proper purpose. See Seinfeld v. Verizon Communications, Inc.,
909 A.2d 117, 121 (Del. 2006); Varney v. Baker, 194 Mass. 239,
240-241 (1907). But the scope of corporate records that
potentially may be inspected to conduct such an investigation
under the Delaware counterpart of § 16.02 is far greater than
under § 16.02, because the Delaware statute permits inspection
of a corporation's "books and records," without specifying which
books and records. See Del. Code Ann. tit. 8, § 220(b)(1)
(LexisNexis 2011). Under Delaware law, a shareholder may
identify the category of corporate records he or she seeks to
inspect, and the scope of inspection is left to the sound
discretion of the judge. See Del. Code Ann. tit. 8, § 220(c)(3)
("The Court may, in its discretion, prescribe any limitations or
conditions with reference to the inspection, or award such other
or further relief as the Court may deem just and proper");
United Techs. Corp. v. Treppel, 109 A.3d 553, 557-558 (Del.
2014) (court has broad discretion to determine scope of
inspection and use of information gathered); Security First
Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563, 569 (Del.
19
1997) (judge "has wide latitude in determining the proper scope
of inspection").
In Seinfeld, supra at 118-119, the shareholder alleged that
three corporate executives were paid more than authorized in
their employment contracts, and the shareholder sought to
inspect the corporate books and records related to their
compensation. Where an inspection's purpose is to investigate
possible corporate wrongdoing or mismanagement, the Delaware
Supreme Court requires the shareholder to show, "by a
preponderance of the evidence, a credible basis from which the
[court] can infer there is possible mismanagement that would
warrant further investigation." Id. at 123. "That 'threshold
may be satisfied by a credible showing, through documents,
logic, testimony or otherwise, that there are legitimate issues
of wrongdoing." Id., quoting Security First Corp., 687 A.2d at
568.
This burden is modest but it is more demanding than is
appropriate for the more limited scope of books and records
subject to inspection under § 16.02. The inverse of the
Biblical adage that to whom much is given, much is expected is
that to whom less is given, less is expected. See Luke 12:48
(Revised Standard Version). The corporate records sought in
Seinfeld might be outside the scope of inspection in
Massachusetts under § 16.02, as might many investigative
20
requests for corporate books and records that may be permissible
under Delaware law. Where a shareholder seeks corporate books
and records under § 16.02 and claims a proper purpose of
investigating corporate wrongdoing or mismanagement, the
shareholder demonstrates a proper purpose where he or she
identifies particular facts or circumstances that permit a
reasonable inference that the requested books and records could
possibly reveal information that would tend to indicate the
existence of corporate wrongdoing or mismanagement. Such a
showing, if made in good faith, suffices to show that the
shareholder's purpose is not driven by "mere curiosity" or
speculation. See Gavin, 335 Mass. at 239.
The judge also erred in concluding that, where a
shareholder's derivative demand has been declined by the
corporation, the shareholder, to show a proper purpose, must
present some evidence that the majority of the board of
directors who voted to decline were not independent or that
their determination was not made in good faith or that the
inquiry on which they based they determination was not
reasonable. Essentially, the judge imposed a burden on the
shareholder seeking to inspect corporate books and records under
§ 16.02 that was comparable to the burden placed on a plaintiff
shareholder under § 7.44 (d) to defeat a motion to dismiss
brought by the corporation that had declined the plaintiff's
21
derivative demand.9 Section 16.02, however, provides "an
independent right of inspection," and its drafters made clear in
their comments that the right of inspection under § 16.02 is
available "at any time." Comment, supra at 45, 46. A demand
for inspection under § 16.02 may be made before or after the
filing of a shareholder derivative action, and the definition of
"proper purpose" is not altered by its timing. Indeed, a
shareholder has a right of inspection under § 16.02 even if the
shareholder derivative action he or she sought to initiate has
been dismissed. To be sure, the dismissal of a related
shareholder derivative action may be relevant in determining
whether the demand for inspection under § 16.02 is made in good
faith or to harass the corporation, but the right of inspection
under § 16.02 is not restricted by the limits of discovery under
§ 7.44 (d).10
9
We understand why the judge believed that the allowance of
inspection of the plaintiff shareholder's overbroad request for
books and records would have frustrated the limitations of
discovery under § 7.44, because the vast majority of those
documents are outside the scope of § 16.02 and would be
available only through civil discovery in a shareholder
derivative suit. But the appropriate course of action is to
isolate which of the documents in the inspection request fall
within the scope of § 16.02, and then determine whether there is
a proper purpose to order inspection of that subset of
documents.
10
Because the shareholder here did not assert a common-law
right to inspect corporate books and records, we do not address
whether the common-law right of inspection survives after the
enactment of G. L. c. 156D, §§ 16.01 and 16.02, or, if it does
22
Conclusion. The judgment of dismissal is vacated, and the
case is remanded to the Superior Court for further proceedings
consistent with this decision.
So ordered.
survive, whether it provides a shareholder with a greater right
of inspection than provided under these statutes.