Schwartz v. Blum

Filing 920090129

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1948

DAVID SCHWARTZ, Plaintiff - Appellant, v. KENNETH BLUM; KENNETH BLUM, II; WILLIAM A. RICHTER, Defendants ­ Appellees, and GRANT THORNTON LLP; SHULMAN, ROGERS, GANDAL, PORDY & ECKER, Non-party recipient of Subpoena Duces Tecum, Respondents.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:06-cv-02851-RDB)

Argued:

October 30, 2008

Decided:

January 29, 2009

Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part and vacated in part by unpublished per curiam opinion.

ARGUED: Brian M. Maul, GORDON & SIMMONS, Frederick, Maryland, for Appellant. George W. Shadoan, SHADOAN, MICHAEL & WELLS, LLP, Rockville, Maryland, for Appellees. ON BRIEF: Roger C. Simmons, GORDON & SIMMONS, Frederick, Maryland, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: David dismissing stemming Schwartz his from appeals the order his of the district court

action the

against of

former company,

business

partners of

sale

their

Rent-A-Wreck

America, Inc., and its 2006 merger with MBFG, Inc. reasons court. that follow, we affirm the decision of the

For the district

We vacate as moot the district court's order granting

summary judgment.

I. Schwartz founded Rent-A-Wreck of America ("RAWA"), a lowbudget car rental company that traded on the NASDAQ stock

exchange until 2002.

At the time of the 2006 merger, Schwartz

was a major RAWA shareholder, but RAWA's day-to-day operations were overseen by CEO Kenneth Blum, Sr. ("Blum"), and Blum's son, Kenneth Blum II ("Blum II"), who served as president of RAWA until 2004. in RAWA's William Richter, who owned a controlling interest preferred stock and a substantial interest in the

common shares, sat on the Board of Directors. Schwartz alleges that, from approximately 1994 until "the early 2000s," J.A. 372, the Blums mismanaged the company and engaged in a pattern of self-dealing with Richter's acquiescence and occasional active assistance. Schwartz alleges, for

example, that RAWA hired companies owned by Blum II to develop

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software that was unnecessary; that the Blums leased property to RAWA through RAWA their to pay own real estate fees company; for that the Blums

caused

excessive

management

services

performed by K.A.B., Inc., a company controlled by the Blums; that Blum II and Richter purchased cars through RAWA but

retained the profits from resale for themselves; that the Blums diverted company funds for their own personal use and misused company credit cards; and that the Blums and their family

members used company cars without compensating RAWA. According to Schwartz, Mitra Ghahramaniou, RAWA's financial controller, became concerned about this alleged pattern of

misconduct and financial improprieties and its effect on RAWA's mandatory SEC filings. to Richter, who Ghahramaniou communicated her concerns permitted the Blums to "cover up"

allegedly J.A. 13.

their activities.

Schwartz claims that, because the

Blums feared the activities reported by Ghahramaniou subjected them to potential individual liability under the Sarbanes-Oxley Act, see Pub. L. No. 107-204, § 804, 116 Stat. 745, 801 (2002), codified in part at 28 U.S.C. § 1658(b), the Blums caused RAWA to delist its shares from the NASDAQ exchange so that SarbanesOxley would no longer apply. The complaint alleges that the

delisting resulted in a significant drop in the value of RAWA shares and eventually lead to the resignation of Blum II as president. According to the 4 complaint, a subsequent audit

revealed numerous financial irregularities, forcing the Blums to repay RAWA for "improper and undocumented expenses." J.A. 14.

Schwartz alleges finally that Richter and Blum, in order "to extract themselves from the problems created" by their

conduct, began looking for a company that would purchase RAWA. J.A. 14. MBFG. Ultimately, RAWA entered into a Merger Agreement with

Schwartz alleges that Richter, who held a controlling

interest in RAWA, and Blum approved the proposed merger even though another buyer produced a more favorable tender offer. Schwartz claims that Richter and Blum settled on MBFG because, unlike the other bidder, MBFG agreed to grant, among other

things, "a waiver and release of all claims arising from the facts contained in the Audit Report." J.A. 16.

The Merger Agreement offered RAWA shareholders the option of tendering their shares for the price being offered by MBFG or dissenting from the proposed merger and pressing their appraisal rights. Schwartz opted to accept MBFG's offer and redeem his Schwartz concedes that at the

400,000 shares of RAWA stock.

time he tendered his shares to MBFG, he was fully informed as to all material facts related to the merger, including defendants' alleged self-dealing, which occurred years before the merger. Based on these factual allegations, against Schwartz all asserted a

breach-of-fiduciary-duty

claim

defendants,

contending that RAWA shareholders did not receive a fair price 5

for the merger.

According to Schwartz, RAWA's "value included

claims against the Defendants" that were waived in the merger transaction and, therefore, MBFG paid less than it should have for the merger. J.A. 16. Furthermore, Schwartz alleged in his

complaint that the value of RAWA's stock dropped significantly when RAWA delisted from the to Nasdaq adhere exchange to as a result of

defendants'

failure

their

fiduciary

responsibilities. Defendants Schwartz, moved to dismiss his the complaint, shares and arguing accepted that the

having

tendered

RAWA

consideration offered in the merger proposal, was barred from challenging the fairness of the merger price. While the motion

to dismiss was pending, defendants filed a motion for summary judgment asserting that, to the extent Schwartz was pursuing a claim based on defendants' alleged self-dealing and wrongdoing as directors or officers of RAWA, such a claim was barred by Maryland's three-year statute of limitations. The district court granted the motion to dismiss,

concluding that under Bershad v. Curtiss-Wright Corp., 535 A.2d 840 (Del. 1987), Schwartz could not challenge the fairness of the merger after tendering his shares and accepting the benefits of the 2006 merger. Noting that the nature of Schwartz's claim

was "difficult to discern from the Complaint," J.A. 377, the district court decided to address defendants' motion for summary 6

judgment even though it had granted the motion to dismiss.

The

court granted summary judgment, agreeing with defendants that any claim based on the allegations of wrongdoing was barred by the statute of limitations. appeal. Schwartz challenges both rulings on

II. A. The lack of clarity and precision in Schwartz's complaint complicated the district court's task in this case. Even on

appeal with the aid of counsel's post hoc characterizations of the claim asserted by Schwartz, it is indeed difficult to pin down Schwartz's theory. That said, we conclude that the heart

of Schwartz's claim is a challenge to the price of the merger. This conclusion is confirmed by language in the complaint and Schwartz's opening brief: "The gravamen of Schwartz's Complaint

is that [defendants] breached their fiduciary duties . . . which resulted in a lower price term being realized from the 2006 Merger than at would 22; otherwise see id. at have 23 been obtained." Brief is of a

Appellant

("Schwartz's

Complaint

challenge to the terms of the 2006 Merger."). As we understand the claim, the allegations about

defendants' improper conduct go to Schwartz's theory about why the merger price was unfair. He believes that defendants feared

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liability "bought"

as

a

result by

of

their

alleged to a

misconduct merger

and

thus in

protection

agreeing

lower

price

exchange for a waiver from MBFG.

On the face of the complaint, Nevertheless, the actual --

however, such a theory is simply not apparent. even if we were to superimpose basic or this theory

onto

complaint, defendants

Schwartz's negotiated

claim

would caused

remain an

the

same

otherwise

unfair,

lowball

merger price. Accordingly, although we appreciate the dilemma created by the pleadings and understand the district court's reasons for ruling on a second dispositive motion, we conclude that the

motion for summary judgment was essentially duplicative of the motion to dismiss and that it was unnecessary for the court to address it. For the reasons that follow, we affirm the district

court's dismissal of Schwartz's complaint and vacate as moot the order granting summary judgment. B. Schwartz argues that the district court erroneously

concluded that, by accepting consideration from MBFG in exchange for his RAWA stock, he essentially acquiesced to the proposed merger and could not subsequently challenge the fairness of the price MBFG paid for the shares. Federal substantive courts law of sitting the forum 8 in diversity see must Erie apply R.R. Co. the v.

state,

Tompkins, 304 U.S. 64, 78 (1938); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir. 1999), including its choice of law rules, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The parties agree that Delaware

law applies to Schwartz's claim; accordingly, we look to the corporate law of Delaware as determined by the highest court of that state. See Ellis v. Grant Thornton LLP, 530 F.3d 280, 287

(4th Cir. 2008) ("As a federal court sitting in diversity, we have an obligation to apply the jurisprudence of West Virginia's highest court, the Supreme Court of Appeals of West Virginia."). The district court relied upon the Delaware Supreme Court's Bershad decision, which considered whether an informed

stockholder -- and Schwartz concedes he was fully informed -can challenge the fairness of the merger price after "vot[ing] in favor of a merger or accept[ing] the benefits of the The

transaction."

Bershad, 535 A.2d at 842 (emphasis added).

Bershad court answered this question in the negative, holding that a stockholder who has "tendered his shares and accepted the merger consideration" has "acquiesced in the transaction and

cannot [subsequently] attack it."

Id. at 848.

Despite the apparent death-knell sounded by Bershad for his claim, Schwartz contends that numerous Delaware Chancery Court decisions have narrowed the scope of Bershad. the decisions cited by Schwartz 9 is In re Representative of Best Lock Corp.

Shareholder Litigation, 845 A.2d 1057 (Del. Ch. 2001), in which the court concluded that Bershad precludes a stockholder from challenging the merger price only when he tenders his shares and affirmatively votes to ratify the merger. Id. at 1079

(observing that "[t]he result in Bershad would . . . have been different . . . if there had not been a ratifying vote of the minority shareholders"). Moreover, according to In re Best

Lock, even if the shareholder votes for the merger and accepts its benefits, he may still challenge the fairness of the merger in an equitable action. See id.; see also In re JCC Holding

Co., 843 A.2d 713, 722-23 (Del. Ch. 2003) ("[A] stockholder who casts a vote in favor of, or later accepts the consideration from, a merger effected by a controlling stockholder is not

barred by the doctrine of acquiescence, or any other related equitable doctrine such as waiver, from challenging the fairness of the merger."). There are some circumstances under which a federal

diversity court, in determining the applicable state law, can consider the decisions of a lower state court. If the highest

state court has not addressed the issue or the law is unclear, the federal court must "forecast a decision of the state's

highest court" in light of "canons of construction, restatements of the law, treatises, recent pronouncements of general rules or policies by the state's highest court, well considered dicta, 10

and the state's trial court decisions."

Wells v. Liddy, 186

F.3d 505, 528 (4th Cir. 1999); see also Private Mortgage Inv. Servs., Inc. v. Hotel & Club Assocs., 296 F.3d 308, 312 (4th Cir. 2002) (considering, in the absence of decision by the state supreme court, a decision by the state's intermediate appellate court to be "the next best indicia of what state law is")

(internal present

quotation

marks here.

omitted). In Bershad,

No the

such

circumstances Court of

themselves

Supreme

Delaware directly addressed this issue.

Since that decision, as

Schwartz concedes, the Delaware Supreme Court has not fashioned an exception to Bershad or otherwise narrowed its holding,

either explicitly or implicitly.

Accordingly, we believe that

Bershad remains controlling and it is dispositive of the claim raised by Schwartz.

III. For the foregoing reasons, we affirm the district court's dismissal of Schwartz's complaint. To the extent that the

district court also granted summary judgment, we vacate that order. Having reviewed and carefully considered the remaining

issues raised on appeal by Schwartz, we reject these arguments as well. AFFIRMED IN PART AND VACATED IN PART

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