How a Special Litigation Committee Protects Minnesota Companies | Attorney Aaron Hall

How a Special Litigation Committee Protects Minnesota Companies


Setting up a Special Litigation Committee (“SLC”) is a great way to deal with a conflict of interest in a company. A Special Litigation Committee allows the company to keep control of legal claims and address issues in a way that puts the best interests of the company first. The main idea behind a Special Litigation Committee is to move a decision from the Board of Directors/Managers to people who are independent and disinterested.

Special Litigation Committee Overview

A special litigation committee is a committee appointed by the Board of Directors of a corporation that has been tasked with deciding whether to sue on a corporate claim or whether to continue an already commenced lawsuit against directors or officers of the corporation.

Special Litigation Committee Requirements

When appointing an SLC, the board of directors should be aware of certain requirements. Once an SLC is formed, it is to act independently, meaning it is not under the control of the board of directors despite the fact that the board appointed them. The SLC must be given full authority and control to make its decisions. The SLC’s procedures investigating claims must be “adequate, appropriate, and pursued in good faith.” Whether an SLC’s procedures are proper depends on the nature of the particular investigation and other factors including

  • the length and scope of the investigation,
  • the SLC’s use of independent counsel or experts,
  • the corporation or defendant’s participation, if any in the investigation, and
  • the adequacy and reliability of the info supplied to the SLC.

Once an SLC has reached a decision as to the course of action for the corporation, it is not allowed to improve or amend their investigation in any way. Depending on the jurisdiction you are in, decisions made by an SLC—and the process used to reach those decisions—are usually granted significant deference by a reviewing court. This essentially means that SLC’s decisions are binding, under the business judgment rule, barring a finding by a reviewing court that the SLC acted unlawfully or was not disinterested.

Tantamount to an SLC is its independence from the Board members who appointed them. The SLC member(s) must not have a relationship with the individual defendant or the suit itself that would impair an SLC member’s judgment. If a court reviewing the decision of an SLC finds the SLC lacked independence, the court may vacate the SLC’s recommendation. For example, SLC members will not be deemed independent if they are a defendant in the suit at hand. Independence can also be challenged if the SLC member has a significant financial stake in the corporation they are advising. See Hasan v. CleveTrust Realty Investors, 729 F.2d 372 (6th Cir. 1984). SLC recommendations lack independence when the committee is simply advising an entire board of directors, most of whom are defendants in the suit at hand, instead of acting with full power delegated by the board of directors. See Par Pharmaceuitcal Inc. Derivative Litig.¸750 F. Supp. 641 (S.D.N.Y. 1990).

SLCs are permitted to hire attorneys to represent the SLC. The SLC’s attorney may advise the SLC on compliance with the law. The SLC’s attorney may also conduct due diligence and investigations for the SLC, including interviews with witnesses, such as employees or past employees of the business.

Special Litigation Committee in the Minnesota Statutes

The framework of a Special Litigation Committee is specifically provided in the Minnesota Statutes.

Nonprofit Organizations

Nonprofit organizations are usually corporations, so the statutes for corporations apply. (See below.)

Corporations

For corporations, the Special Litigation Committee framework is provided in Minnesota Statutes section 302A.241, subdivision 1: “Committees may include a special litigation committee consisting of one or more independent directors or other independent persons to consider legal rights or remedies of the corporation and whether those rights and remedies should be pursued.”

In Minnesota, Minnesota Statutes section 302A.241 governs some of the basic rules regarding SLCs. Members of the SLC must be natural persons (they may not be another corporation); committees must contain at least two or more members; the makeup of an SLC can only be approved by a majority vote of the directors present (unless the articles or bylaws say otherwise); and the SLC has the power to appoint subcommittees.

LLCs

For limited liability companies (LLCs), the Special Litigation Committee framework is provided in Minnesota Statutes section 322C.0905:

Subdivision 1. Committee authorization. If a limited liability company is named as or made a party in a derivative proceeding, the company may appoint a special litigation committee to investigate the claims asserted in the proceeding and determine whether pursuing the action is in the best interests of the company. If the company appoints a special litigation committee, on motion by the committee made in the name of the company, except for good cause shown, the court shall stay discovery for the time reasonably necessary to permit the committee to make its investigation. This subdivision does not prevent the court from enforcing a person’s right to information under section 322C.0410 or, for good cause shown, granting extraordinary relief in the form of a temporary restraining order or preliminary injunction.

Subdivision 2. Committee composition. A special litigation committee may be composed of one or more disinterested and independent individuals, who may be members.

Subdivision 3. Requirements for appointment of committee. A special litigation committee may be appointed:

(1) in a member-managed limited liability company:

(i) by the consent of a majority of the members not named as defendants or plaintiffs in the proceeding; and

(ii) if all members are named as defendants or plaintiffs in the proceeding, by a majority of the members named as defendants;

(2) in a manager-managed limited liability company:

(i) by a majority of the managers not named as defendants or plaintiffs in the proceeding; and

(ii) if all managers are named as defendants or plaintiffs in the proceeding, by a majority of the managers named as defendants; and

(3) in a board-managed limited liability company:

(i) by a majority of governors not named as defendants or plaintiffs in the proceeding; and

(ii) if all governors are named as defendants or plaintiffs in the proceeding, by a majority of the governors named as defendants.

Subdivision 4. Determinations of committee. After appropriate investigation, a special litigation committee may determine that it is in the best interests of the limited liability company that the proceeding:

(1) continue under the control of the plaintiff;

(2) continue under the control of the committee;

(3) be settled on terms approved by the committee; or

(4) be dismissed.

Subdivision 5. Committee procedures. After making a determination under subdivision 4, a special litigation committee shall file with the court a statement of its determination and its report supporting its determination, giving notice to the plaintiff. The court shall determine whether the members of the committee were disinterested and independent and whether the committee conducted its investigation and made its recommendation in good faith, independently, and with reasonable care, with the committee having the burden of proof. If the court finds that the members of the committee were disinterested and independent and that the committee acted in good faith, independently, and with reasonable care, the court shall enforce the determination of the committee. Otherwise, the court shall dissolve the stay of discovery entered under subdivision 1 and allow the action to proceed under the direction of the plaintiff.

Independent and Disinterested

A properly formed Special Litigation Committee must be independent and disinterested.

Independent

Independence means the SLC does not report to the board. The SLC has total authority, without needing any subsequent approval from the Board of Directors.

Disinterested

Disinterested means the SLC members have no conflict of interest. This means the individual SLC members have nothing to benefit or lose from the outcome of the SLC’s actions.

This includes people with close ties to SLC members including their:

  • family members
  • romantic relationships
  • business partners
  • principals and agents
  • coworkers, bosses, and employees
  • others with a close connection
  • and sometimes close friends

The Minnesota LLC Act provides that “[a] special litigation committee may be composed of one or more disinterested and independent individuals, who may be members.” See Minn. Stat. § 322C.0905, subdiv. 2. This codifies the common law (what courts have established is required for a Special Litigation Committee).

The Minnesota Corporations Act is older, so it does not expressly include the term “disinterested.” The Minnesota Corporations Act uses “independent directors or other independent persons.” Under the common law, courts have held that “independent” includes “disinterested.”

Attorneys interested in additional information regarding special litigation committee legal issues might consider reading the case of In re UnitedHealth Group, Inc. S’holder Derivative Litig., 754 N.W.2d 544, 548 (Minn. 2008), and the law review article, Finessing Well-Plead Derivative Lawsuits: The Implications of the Minnesota Supreme Court’ s Selection of Auerbach over Zapata (2009).

About the Author Aaron Hall

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