Danziger v. Luse

Pfeifer, J. ¶ 1 The issue in this case is whether appellants have a right to inspect the records of a wholly owned subsidiary of the company in which they own stock. For the reasons that follow, we conclude that they do. ¶ 2 Appellants Jared, Nathan, and Samuel Danziger own stock in Croghan Bancshares, Inc. (“the company”), which has one operating asset, Croghan Colonial Bank (“the bank”). The bank has only one stockholder, the company. In February 2001, the Danzigers sent a letter to the company demanding to review the corporate minutes of the company and the bank. When the company failed to respond, the Danzigers filed a complaint in common pleas court, asserting that they had a right as shareholders of the company to inspect the corporate minutes of both the company and the bank. ¶ 3 After receiving the complaint, the company informed the Danzigers that it would permit them to examine its corporate minutes. The company also informed the Danzigers that it would not permit them to examine the bank’s corporate minutes because the Danzigers were not shareholders of the bank. The Danzigers advised the company that they did not distinguish between the 338 company and the bank because “[t]he Officers are the same, the Directors are the same, the ownership is the same and the sole source of income and performance measurement of the holding company is the sole subsidiary.” ¶ 4 The Danzigers filed exhibits with the trial court demonstrating that the company and the bank have the same directors and the same officers, that the company owns all of the bank’s stock, and that the company’s sole source of income is dividends paid by the bank. Both parties moved for summary judgment. The trial court granted the company’s motion for summary judgment, finding that the company had complied with R.C. 1701.37(C) by offering the Danzigers an opportunity to inspect and copy its minutes. The court also found that the Danzigers did not have a right to examine the minutes of the bank pursuant to R.C. 1103.16(C) because they were not shareholders of the bank. The court of appeals affirmed the trial court’s judgment. ¶ 5 The cause is now before this court upon our acceptance of a discretionary appeal. ¶ 6 At common law, the right of a shareholder to inspect the books and records of a corporation was a fundamental “incident to ownership of stock.” Cincinnati Volksblatt Co. v. Hoffmeister (1900), 62 Ohio St. 189, 199, 56 N.E. 1033. This court stated that the right to inspection rests “upon the broad ground that the business of the corporation is not the business of the officers exclusively, but is the business of the stockholders.” Id. See William Coale Dev. Co. v. Kennedy (1930), 121 Ohio St. 582, 170 N.E. 434. A shareholder’s right to inspect is codified in R.C. 1701.37(C), which states: ¶ 7 “Any shareholder of the corporation, upon written demand stating the specific purpose thereof, shall have the right to examine in person or by agent or attorney at any reasonable time and for any reasonable and proper purpose, the articles of the corporation, its regulations, its books and records of account, minutes, and records of shareholders * * ¶ 8 The right of shareholders of banks to inspect a bank’s records is set forth separately in R.C. 1103.16(C), which provides: ¶ 9 “Any shareholder of the bank, upon written demand stating the specific purpose of the demand, has the right to examine in person or by agent or attorney at any reasonable time and for any reasonable and proper purpose, the books and records of the bank, except books and records of deposit, agency or fiduciary accounts, loan records, and other records relating to customer services or transactions.” ¶ 10 R.C. 1701.37(C) and 1103.16(C) do not address whether shareholders have a right to inspect the records of a wholly owned subsidiary of the company in which they own stock. R.C. 1701.37(C) and 1103.16(C) provide inspection 339 rights only to shareholders. Because the Danzigers do not own stock in the bank, we conclude that they do not have a statutory right to inspect the records of the bank. ¶ 11 That conclusion is not dispositive, because the Danzigers also assert a common-law right to inspect. In Ohio, “[n]ot every statute is to be read as an abrogation of the common law. ‘Statutes are to be read and construed in the light of and with reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it dearly expresses or imports such intention.’ ” (Emphasis sic.) Bresnik v. Beulah Park Ltd. Partnership, Inc. (1993), 67 Ohio St.3d 302, 304, 617 N.E.2d 1096, quoting State ex rel. Morris v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus. We conclude that R.C. 1701.37 and 1103.16(C) do not abrogate the common-law right to inspection or specifically prohibit shareholders from having access to the corporate records of wholly owned subsidiaries. ¶ 12 In State ex rel. Brown v. III Investments, Inc. (Mo.App.2002), 80 S.W.3d 855, 860, the court stated that nothing in the Missouri statutory code granting a right to shareholders to inspect corporate records “expressly or implicitly abrogates the common law right of inspection.” The court concluded by stating, “We find no authority to support the trial court’s determination that shareholders in a corporation are never afforded the right to inspect documents of the corporation’s subsidiaries in which the shareholder does not directly hold stock.” Id. at 865. Similarly, in Evitt v. Lake Holiday Country Club, Inc. (1988), 13 Va.Cir. 360, 363, 1988 WL 619347, the court stated that “[t]he statutes on inspection were not to abrogate but to confirm and extend that common law right and their omission of a specific right to inspect books and records of a subsidiary is not fatal.” ¶ 13 Whether shareholders have a right to inspect the corporate minutes of a wholly owned subsidiary of the company in which they own stock is an issue of first impression in Ohio. Accordingly, we look outside Ohio for guidance in resolving the issue. ¶ 14 “Although there is surprisingly little authority on the matter, the cases considering this issue have divided over whether a shareholder’s right of inspection includes the books and records of subsidiary corporations as well.” Phillip I. Blumberg, The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary Corporation Liabilities (1996), 28 Conn.L.Rev. 295, 340. There are, however, “a number of cases in which the shareholder’s right to inspect books and records has been extended to cover the books and records of a subsidiary.” Melvin Aron Eisenberg, Megasubsidiaries: The Effect of Corporate Structure on Corporate Control (1971), 84 Harv.L.Rev. 1577, 1595, fn. 92, citing 340 Woodworth v. Old Second Natl. Bank (1908), 154 Mich. 459, 117 N.W. 893; State ex rel. United Brick & Tile Co. v. Wright (1936), 339 Mo. 160, 95 S.W.2d 804; Siravo v. Sirian Lamp Co. (1940), 124 N.J.L. 433, 12 A.2d 682; Bailey v. Boxboard Prods. Co. (1934), 314 Pa. 45, 170 A. 127; Williams v. Freeport Sulphur Co. (Tex.Civ.App.1930), 40 S.W.2d 817. “It has generally been held that shareholders in a corporation are entitled at common law to inspect the books and records of a corporation which is a subsidiary to the corporation in which they hold stock.” Annotation, What Corporate Documents Are Subject to Shareholder’s Right To Inspection (1978), 88 A.L.R.3d 663, 676, Section 8. “Since access to the information concerning subsidiaries is directly related to the rationale for recognition of the basic ¿right of inspection, the better view would uphold inspection.” Blumberg, 28 Conn.L.Rev. at 340-341. ¶ 15 Our review of cases leads us to adopt the general view that shareholders have a common-law right to inspect corporate records of a wholly owned subsidiary of the company in which they own stock where the separate corporate existence of the subsidiary corporation should be disregarded. In Woodworth v. Old Second Natl. Bank, 154 Mich, at 468, 117 N.W. 893, the Supreme Court of Michigan allowed a shareholder to inspect a subsidiary’s records after concluding that the subsidiary was a mere instrumentality of the parent corporation. In Bailey v. Boxboard Prods. Co., the Pennsylvania Supreme Court stated that “ ‘the stockholders of one company have a right to inspect the books and records of subsidiary companies where the latter are so organized and controlled, and their affairs so conducted, as to make them adjuncts or instrumentalities of the [parent company].’ ” Id., 314 Pa. at 47-48, 170 A. 127, quoting 14 Corpus Juris (1919) 859, and citing Martin v. D.B. Martin Co. (1913), 10 Del.Ch. 211, 88 A. 612, and Woodworth, supra. See William T. Blackburn, Shareholder Inspection Rights (1958), 12 Sw.L.J. 61, 64 (“The rule seems to be that [a shareholder] can inspect the books of the subsidiary corporation if the subsidiary is dominated and controlled by the parent, the extent of the control being the determinative fact” [footnote omitted]). ¶ 16 18A Am.Jur.2d (1985), Corporations, Section 400 states: ¶ 17 “Courts have generally recognized, both at common law and under statute, the right of shareholders to inspect the corporate documents of a corporation which is the subsidiary of the corporation in which the shareholders hold stock. In such cases a court will disregard the legal fiction of separate and distinct corporate entities. Thus, it has been held that stockholders of a corporation were entitled to inspect the records of a controlled subsidiary corporation which used the same offices and had identical officers and directors. Indeed, it has been suggested that greater liberality should be accorded one seeking inspection of the books and records of a subsidiary than in a situation in 341 which the question of whether or not a parent corporation is liable for the tort of its subsidiary is before the court.” (Footnotes omitted.) ¶ 18 5A Fletcher Cyclopedia of the Law of Private Corporations (1995), Section 2230 states: ¶ 19 “[I]n order for shareholders of the parent to establish their rights to inspect the books and records of the subsidiary, they must make some showing of identity or misuse of the corporate form which will justify the disregard of the separate corporate existence of the two entities.” ¶ 20 Today we adopt the majority rule and hold that, in Ohio, shareholders have a right at common law to inspect the records of a wholly owned subsidiary of the corporation in which they own stock when the parent corporation so controls and dominates the subsidiary that the separate corporate existence of the subsidiary should be disregarded. This right, always important, takes on a new significance in light of recent high-profile corporate scandals involving financial misdeeds. See Kathleen F. Brickey, From Enron to WorldCom and Beyond: Life and Crime after Sarbanes-Oxley (2003), 81 Wash.U.L.Q. 357. Those charged with protecting shareholders, such as investment banks, accountants, and lawyers, have not always been up to the task. See Gary J. Aguirre, The Enron Decision: Closing the Fraud-Free Zone on Errant Gatekeepers? (2003), 28 DelJ.Corp.L. 447. The common-law right to inspect gives shareholders additional opportunities to ferret out misdeeds and contributes to corporate transparency. Whether inquisitive shareholders could have prevented the worst offenses of the Enron scandal and others will never be known, but that was the purpose behind the right from the very beginning. ¶ 21 We must now determine whether the facts in this case support a finding that the company so controls and dominates the bank that the separate corporate existence of the bank should be disregarded. ¶ 22 The Supreme Court of Pennsylvania has stated: ¶ 23 “[T]he facts indicate the Paper Company is merely a controlled subsidiary, using the same offices as Boxboard Company and having identical officers and directors. The rule is clear that ‘the stockholders of one company have a right to inspect the books and records of subsidiary companies where the latter are so organized and controlled, and their affairs so conducted, as to make them adjuncts or instrumentalities of the former Company.’ ” Boxboard Prods. Co., 314 Pa. 45, 170 A. at 127-128, quoting 14 Corpus Juris 859. ¶ 24 In Carapico v. Philadelphia Stock Exchange, Inc. (Del.Ch.2000), 791 A.2d 787, 793, the court determined that common central management alone is not a proper basis for disregarding separate corporate existence. In Salovaara v. SSP, Inc. (Jan. 10, 2001), Del.Ch. No. 18903, the court granted the sharehold 342 ers the right to inspect the books and records of a corporation’s subsidiaries after finding that the subsidiaries were alter egos of the parent. ¶ 25 In this case, we conclude that the separate corporate existence of the bank should be disregarded. The company owns all of the stock of the bank and has no assets other than the bank. The company and the bank have the same directors. All of the officers of the company are also officers of the bank. The company and the bank hold shareholders’ meetings on the same day and at the same place. All of the income of the company is derived from dividends paid by the bank. It is abundantly clear from reviewing the record that the company is the bank and that in this case, the bank’s separate corporate existence should be disregarded. Judgment reversed. Resnick and Lundberg Stratton, JJ., concur. O’Connor, J., concurs separately. Moyer, C.J., F.E. Sweeney and O’Donnell, JJ., dissent.