LISA, SA v. Mayorga
| Decision Date | 20 April 2010 |
| Docket Number | 2009.,No. 410,410 |
| Citation | 993 A.2d 1042 |
| Parties | LISA, S.A., a Panamanian Corporation, Plaintiff Below, Appellant, v. Juan Jose Gutierrez MAYORGA, Campero USA Corp., a Delaware Corporation, Campero, Inc., a Delaware Corporation, Campero International, S.A., a Panamanian Corporation, Campero International, Ltd., a Barbados Corporation, Defendants Below, Appellees. |
| Court | United States State Supreme Court of Delaware |
Peter B. Ladig and Stephen B. Brauerman, Esquires, of Bayard, P.A., Wilmington, DE; of Counsel: Bruce W. Sanford, Mark A. Cymrot (argued) and Ronald F. Wick, Esquires, of Baker & Hostetler, LLP, Washington, DC, for appellant.
Arthur L. Dent (argued) and Brian C. Ralston, Esquires, of Potter Anderson & Corroon, LLP, Wilmington, DE; of Counsel: Edward H. Davis, Jr., Edward M. Mullins and Annette C. Escobar, Esquires, of Astigarraga Davis Mullins & Grossman, Miami, FL, for appellees.
Before HOLLAND, JACOBS and RIDGELY, Justices.
Lisa, S.A. ("Lisa"), the plaintiff below, appeals from a Court of Chancery order dismissing Lisa's complaint on grounds of forum non conveniens and lack of personal jurisdiction. The complaint, which was filed in 2006, related to a 1992 sale of shares in a group of family-owned corporations incorporated in Guatemala and El Salvador. That 1992 sale of shares, in turn, was the subject of a prior action brought by Lisa in Florida in 1998 against affiliates of the defendants in this action. We conclude, on forum non conveniens grounds, that the Court of Chancery properly dismissed the complaint, and therefore, affirm.
The plaintiff, Lisa, is a Panamanian corporation.
Defendant Campero International, S.A. ("Campero Panama") is a Panamanian corporation that franchised the Pollo Campero chain of restaurants in the United States from 2001 to 2003. Defendant Campero International, Ltd., incorporated in Barbados ("Campero Barbados"), is a wholly owned subsidiary of Campero Panama. Defendant Campero, Inc., a Delaware corporation ("Campero Delaware"), is a wholly owned subsidiary of Campero Barbados. Defendant Campero USA Corp., a Delaware corporation ("Campero USA"), is a wholly owned subsidiary of Campero Delaware, and the franchisor of the Pollo Campero restaurants in the United States.
Defendant Juan Jose Gutierrez Mayorga ("Mayorga") is an officer and/or director of all the aforementioned defendant corporations. Mayorga is also the president of Pollo Campero, S.A. ("Pollo Campero Guatemala"), a Guatemalan corporation that originated the Pollo Campero chicken restaurant concept.
The Campero Group is a chicken production and retail venture that, through various entities, operates a chain of fast food restaurants. During the period relevant to this case, the Campero Group consisted of several foreign corporations: Pollo Campero Guatemala owned the Pollo Campero name and recipes, and operated the Pollo Campero restaurants in Guatemala. Avicola Salvadoreña, S.A. de CV was an El Salvador corporation that operated poultry production facilities in El Salvador. And, Pollo Campero de El Salvador, S.A. de CV, was an El Salvador corporation that operated the Pollo Campero restaurants in El Salvador.2
Before 1992, the owners of the Campero Group were four corporations, of which three represented different branches of the Gutierrez family: (1) the Gutierrez Strauss family, (2) the Bosch Gutierrez family, and (3) the Gutierrez Mayorga family.3 The fourth corporation was owned in equal shares by the Gutierrez Family corporations and by executives of the Campero Group who owned shares through a profit sharing plan.
Since 1982, the daily operations of the Campero Group have been controlled by Mayorga, Juan Luis Bosch ("Bosch"), and Dionisio Gutierrez Mayorga ("Dionisio"). Mayorga has served as the chief executive officer of the Campero Group at all relevant times. Between 1987 and 1991, Bosch and Dionisio (acting on behalf of Mayorga) provided Lisa with financial information showing the purported net profits of the Campero Group and other companies jointly owned by the three branches of the Gutierrez family. In its complaint, Lisa alleges that the information furnished by Bosch and Dionisio, materially understated the actual net profits of the Campero Group.
In November 1992, Lisa sold its interest in the Campero Group to the Gutierrez Mayorga and Bosch Gutierrez Families for $20.25 million. Lisa claims that during the sale negotiations, Bosch and Dionisio (acting on behalf of Mayorga) repeatedly misstated financial information relating to the Campero Group.
Five years later, in December 1997, Lisa obtained copies of Campero Group financial statements, and discovered that those statements were substantially inconsistent with those furnished to Lisa before the 1992 sale of its interest in the Campero Group. In 1998, Lisa learned of a series of allegedly fraudulent transactions that occurred at the direction of Bosch and Dionisio. Those transactions allegedly falsified Campero Group's financial statements, including the net profit representations that had formed the basis of the negotiations over the 1992 purchase price of Lisa's Campero Group shares.
In November 1998, Lisa filed an action in the Florida Circuit Court ("the 1998 Florida Action") against multiple defendants: Bosch, Dionisio, Pollo Campero Guatemala, the remaining corporations comprising the Campero Group, and the corporations representing the interests of the Bosch Gutierrez and the Gutierrez Mayorga families. Lisa sought rescission of the sale of its interest in the Campero Group, and money damages.
In February 1999, Lisa filed a second action in the Florida Circuit Court ("the 1999 Florida Action"), against Bosch, Dionisio, Mayorga, other individuals, and several other corporate entities. Lisa claimed that the defendants had defrauded it in connection with Avicola Villalobos S.A ("Villalobos"), a chicken production operation in which Lisa remains a shareholder.
In July 2002, Lisa filed a third action in the United States District Court for the Southern District of Florida ("the Federal Action") against Dionisio, Mayorga, Bosch, other individuals, the corporations comprising the Campero Group, and other corporations. Lisa alleged that the defendants in the Federal Action had engaged in racketeering activity relating to the operation of Villalobos.
During this period, Lisa also commenced various related actions in Guatemala.4
Ultimately, the 1999 Florida Action and the Federal Action were dismissed on forum non conveniens grounds.5 The 1998 Florida Action was dismissed on different grounds. These three dismissals were affirmed on appeal by the Florida State courts and the Eleventh Circuit, respectively.6
On November 22, 2006, Lisa filed this action in the Court of Chancery. Lisa claims that after it commenced its 1998 Florida Action, Mayorga and other members of the Gutierrez Mayorga and Bosch Gutierrez families, fraudulently reorganized the Campero Group specifically to eliminate or diminish Lisa's ability to obtain relief in the 1998 Florida Action— namely, to recover damages or be reinstated as a stockholder of the Campero Group. Lisa claims that the defendants caused the Campero Group to transfer the U.S. rights to the Pollo Campero franchise to Campero USA (through Campero Panama and Campero Delaware) for no consideration, all as part of a continuing scheme and conspiracy to defraud Lisa.
As amended, the Delaware complaint asserted five claims. Count I alleged that the defendants conspired to defraud Lisa. Count II alleged that the defendants were unjustly enriched by the fraudulent reorganization of the Campero Group. Count III alleged that Mayorga breached his fiduciary duty owed to Lisa as a shareholder of the Campero Group. Count IV sought an order sequestering the capital stock of Campero Delaware and Campero USA (the "Delaware corporate defendants") to compel the appearance of Campero Barbados and Campero Panama, or satisfy any judgment awarded to Lisa. Count V sought injunctive relief enjoining the sale or transfer of any assets of the Delaware defendants, or interests therein, until any judgment Lisa obtained against the defendants was satisfied.
The defendants moved to dismiss the Chancery action on various grounds, including forum non conveniens and lack of personal jurisdiction. On October 29, 2007, the Court of Chancery stayed the Delaware action in favor of the then-pending first-filed 1998 Florida Action, and held the motion to dismiss in abeyance pending the outcome of Lisa's appeal in that Florida action.
The dismissal of the 1998 Florida Action was affirmed by the Florida Third District Court of Appeal. Thereafter, the Court of Chancery dismissed all claims against the defendants on June 22, 2009. The Vice Chancellor held that Delaware courts had no personal jurisdiction over any defendants other than the Delaware corporate defendants. The trial court dismissed the defendants over which it lacked jurisdiction, and denied Lisa's request for jurisdictional discovery.7 As for the Delaware corporate defendants, the Vice Chancellor dismissed Counts III and V of the complaint for failure to state a claim upon which relief can be granted, and dismissed the remaining Counts (conspiracy to defraud and unjust enrichment) on forum non conveniens grounds.8 This appeal followed.
We first address Lisa's claim that the Court of Chancery erroneously dismissed Lisa's fraud and unjust enrichment counts against the Delaware corporate defendants. Lisa argues that the Vice Chancellor misapplied the forum non conveniens standard, under which (Lisa says) the defendants were required to establish that they would be subjected to "overwhelming hardship" if forced to litigate in Delaware.9 Lisa argues that although the...
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