For Sellers of Minority Interests, the Rule is "Caveat Vendor" – Let the Seller Beware

New York Court of Appeals rules that seller of minority interest has no remedy when purchasing majority owner immediately flips the interest for twenty times what he paid

Owners of minority interests in companies often have very little say on the most important issues that determine the value of their interests. These issues include:

  •          whether equity owners will receive distributions and if so, in what amounts; and
  •          whether the business will be sold and when.

Because of these reasons and others, the only buyers of their interests are typically the majority equity owners and often, because of this, the majority owners can dictate the price.

What happens when the minority owner, who has been waiting for years to realize on the value of his interest finally gets an offer from the majority owner to buy his interest?  As several recent New York Court of Appeals decisions illustrate, the offer is often precipitated by the fact  that the majority owner has received – or is about to receive - an offer for the entire company that he is ready to accept. He realizes that he can increase his own profit on the sale by buying  out the minority owner at less than the pro-rata share of the value for the company that he is entitled to. So, he makes an offer, but neglects to tell the minority owner about the potential transaction or the value that this indicates for the company as a whole.  The minority owner accepts the buyout offer, contracts are drawn and the minority interest is sold to the majority owner. 

A few weeks later, the minority owner learns that the majority owner has sold the entire company at a value that reflects that the minority position was worth twenty times what he just sold it for.  Rightfully indignant, the minority owner sues to collect the amount he believes he was cheated out of. He claims a breach of the majority owner’s fiduciary duties by failing to disclose the offer at the much higher price.

Does he win? 

According to the New York Court of Appeals in Pappas v. Tzolis, he does not – if his transaction was negotiated and consummated in the way these types of deals are usually done.  This is because, the typical sales contract for an interest in a business will include various provisions that deprive the seller of a remedy after closing, including:

  •          a representation that the seller has done his own investigation of the value of the interest    he is selling;
  •          a disclaimer that the seller is not relying on anything the purchaser said or didn’t say in determining whether to sell or at what price;
  •          a waiver of any claims that the purchaser is in a fiduciary relationship with the seller; and
  •          other provisions that limit that purchaser's liability relating to any post-closing cause. 

Typically, the minority owner is so eager to sell that he agrees to all of these “boilerplate” provisions without giving them a second thought.

            What are the lessons of Pappas v. Tzolis for minority equity owners?

1. Before signing any agreement, obtain full written disclosure from the majority owner of any offers received, and any proposed, contemplated or potential transactions.

2. Before signing any agreement, obtain an independent determination of value – not of the minority position – but of the entire company.

3. Make sure the offer to the minority owner reflects his or her percentage of the full value of the company. This is what the minority owner is entitled to under law.  Obviously, a minority owner can reasonably agree to take somewhat less than that to reflect that his or her interest is an illiquid, minority position, but the steps outlined above will help you prevent a surprise such as the ones suffered by the minority owners in Pappas v. Tzolis.