Daniel O'Neill v. Warburg, Pincus & Company

• Decision Date: 10 April 2007
• Docket Number: 721.,722.
• Citation: 39 A.D.3d 281,2007 NY Slip Op 03006,833 N.Y.S.2d 461
• Parties: LAWRENCE DANIEL O'NEILL et al., Appellants, v. WARBURG, PINCUS & COMPANY et al., Respondents. PHILIP BAILLIEU et al., Appellants, v. WARBURG, PINCUS & COMPANY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 281

833 N.Y.S.2d 461

2007 NY Slip Op 03006

LAWRENCE DANIEL O'NEILL et al., Appellants, v.WARBURG, PINCUS & COMPANY et al., Respondents.

PHILIP BAILLIEU et al., Appellants, v.WARBURG, PINCUS & COMPANY et al., Respondents.

721.

722.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided April 10, 2007.

Orders, Supreme Court, New York County (Herman Cahn, J.), entered January 26 and February 6, 2006, granting defendants' respective motions for summary judgment dismissing plaintiffs' claims for damages based on lost profits or the "salvageable" value of QoS, and dismissing the complaints, unanimously affirmed, with costs.

"[U]nder common-law rules matters of procedure are governed by the law of the forum"(Martin v Dierck Equip. Co.,43 NY2d 583, 588[1978]).The question whether plaintiffs had standing to bring this action is a procedural matter (seeMertz v Mertz,271 NY 466, 473[1936]).We reject their argument that the motion court erred in applying New York law, as opposed to Irish law, to this issue.

"An individual shareholder has no right to bring an action in his own name and in his own behalf for a wrong committed against the corporation"(General Motors Acceptance Corp. v Kalkstein,101 AD2d 102, 106[1984], appeal dismissed63 NY2d 676[1984]).A claim for diminution of the value of stock holdings is a derivative cause of action belonging to that corporation and not to plaintiffs individually (seeElghanian v Harvey,249 AD2d 206, 207[1998]).Because the heart of the alleged injury is the diminution in the value of shares of QoS Networks Limited, a start-up company in which plaintiffs were minority shareholders, the argument that plaintiffs are entitled to bring a direct action against Warburg, the majority shareholder, is unavailing under New York law.

Nor do plaintiffs establish that Warburg's conduct falls inside the exception to the general rule for breach of fiduciary duty.A minority shareholder in a close corporation is owed a fiduciary duty by the majority shareholders.In Richbell Info. Servs. v Jupiter Partners(309 AD2d 288, 302[2003]), we held that the majority could be in breach of its fiduciary duty to minority shareholders, even when exercising an express contractual right, if it acted malevolently and in bad faith, solely for its own gain, and in a manner not contemplated by the parties' agreement.There, under a "secret agreement,"the defendant exercised a right malevolently for its own gain and to deprive the plaintiffs of the benefit of the joint venture.Here, by contrast, Warburg exercised its contractual right in exactly the manner contemplated by the parties.Warburg acted to protect its priority status in QoS's capital structure for which it had bargained and for which it had invested $30 million in the company.This fact, without more, places this case outside the exception created by Richbell.

We further reject plaintiffs' argument that Warburg breached its implied duty of good faith and fair dealing.Implicit in every contract is a promise of good faith and fair dealing, which is breached when a party"acts in a manner that, although not expressly forbidden by any contractual provision,...