“[TJhe [directors’] decision ... not to apply for cer-tiorari, after consultation with independent counsel and full presentation and consideration of relevant business and legal implications, did not result in ‘inadequate representation as a matter of law1 [sufficient to permit shareholders to intervene as of right in order to continue litigation].”
How later courts described this case
- “[TJhe [directors’] decision ... not to apply for cer-tiorari, after consultation with independent counsel and full presentation and consideration of relevant business and legal implications, did not result in ‘inadequate representation as a matter of law1 [sufficient to permit shareholders to intervene as of right in order to continue litigation].”
- denying motion to intervene in shareholder derivative suit after court of appeals decision
- adequacy depends not on the correctness of the litigating strategy "but rather on whether shareholder interests were fully and fairly considered when the Board reached its decision"
Written by the judges who cited it.
The opinion
HAYS, Circuit Judge:
I dissent.
It seems to me to be naive to believe that the board of directors was not subject to the determinative influence of Kirby when it voted not to proceed with this case. No one who knows anything about the conduct of corporate enterprise considers that the major stockholder’s withdrawal from the room when a vote is taken amounts to anything more than an empty ceremonial.
If corroboration is needed for the proposition that this board of directors did not adequately represent the interests of the applicants for intervention, ample corroboration is to be found in the reasons given, with astonishing frankness, for abandoning the litigation. The principal reason given for not applying for certiorari is the fear that the corporation might win. One of the reasons given for not wanting to win is that a victory for the corporation would be embarrassing (and expensive) for Kirby.
The application for intervention was obviously “timely” within the meaning of Rule 24. The requirement of timeliness in that Rule refers not to some vague standard of laches but to the making of an application at a time when granting it will not prejudice or delay the conduct of the action by the original parties. There is no such prejudice or delay here. Nor, for that matter, was there any laches. The application was made promptly upon the discovery that the applicants’ interests were no longer being adequately represented.