Antioch Co. Litigation Trust v. Lee Morgan

644 F. App'x 579
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 24, 2016
Docket14-3790
StatusUnpublished
Cited by7 cases

This text of 644 F. App'x 579 (Antioch Co. Litigation Trust v. Lee Morgan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Antioch Co. Litigation Trust v. Lee Morgan, 644 F. App'x 579 (6th Cir. 2016).

Opinions

RALPH B. GUY, JR., Circuit Judge.

This court reserved decision with respect to a portion of this appeal and certified a related question of state law to the Supreme Court of Ohio, The Supreme Court of Ohio has declined to answer that question, and we now review the district court’s decision granting defendants’ motions for partial summaiy judgment with respect to the claim for breach of fiduciary duty in connection with the tender offer transaction that closed December 16, 2003 (“ESOP transaction”) (Count 1). The district court found that the claim was barred by the statute of limitations provided by Ohio Rev.Code § 2305.09(D), and refused to extend or toll the limitations period on the grounds of adverse domination, equitable tolling, or equitable estoppel. For the reasons that follow, we affirm.

I.

The Antioch Company Litigation Trust, through its Trustee W. Timothy Miller, [581]*581brought this adversary proceeding asserting various claims that were transferred to it through the bankruptcy court’s order confirming Antioch’s plan of reorganization, At this juncture, plaintiffs only unresolved claim is that defendants Lee Morgan (“Morgan”) and Asha Morgan Moran (“Moran”) breached the fiduciary duties they owed to Antioch, as directors and officers of the corporation, by approving the ESOP Transaction despite their conflicts of interest and when it was not in the best interest of Antioch. Plaintiff maintained that, having failed to obtain an independent evaluation of the prudence or fairness to the corporation, the defendants approved an overpriced, highly leveraged transaction that benefitted themselves as non-ESOP shareholders and left the corporation with too little cash and too much debt. Further, it is alleged that defendants misrepresented the facts concerning the transaction — including, by implying fairness to the corporation and failing to disclose the extent of the risks to the corporation — and concealed the extent of the financial distress experienced by the corporation in the wake of the transaction.

The tender offer transaction resulted in the leveraged buy-out of all of the non-ESOP shareholders and conversion to 100% ESOP ownership (through the ESOP’s agreement not to tender its shares). Among the terms was Antioch’s agreement to guarantee a minimum share price for all ESOP participants who left or retired over the following three years. Antioch financed the transaction by taking bank loans, issuing unsecured subordinated notes, and spending down the cash on hand. Over the next several years, Antioch’s sales declined, its workforce shrank, and its stock repurchase obligations required further borrowing and the issuance of additional subordinated notes. Throughout that period, Morgan, Moran, and other conflicted directors continued to serve on the Board. Deterioration in the company’s financial condition finally led the Board to market the company for sale or recapitalization during 2007 and 2008. But, when no buyer or lender was secured, Antioch was forced to file a prepackaged Chapter 11 bankruptcy petition on November 13, 2008. After the plan of reorganization was confirmed on January 27, 2009, plaintiff commenced this action as an adversary proceeding on December 23, 2009.

II.

The claim that Morgan and Moran breached their fiduciary duties to Antioch in connection with the ESOP Transaction is governed by the four-year statute of limitations provided by Ohio Rev.Code § 2305.09(D). It was undisputed in the district court that this claim accrued, at the latest, when the ESOP Transaction closed on December 16, 2003, which was more than four years before either the bankruptcy filing or the commencement of this action. Jim Brawn Chevrolet, Inc. v. S.R. Snodgrass, A.C., 141 Ohio App.3d 583, 752 N.E.2d 335, 338 (2001) (holding that a claim for breach of fiduciary duty accrues when the claimant’s interest is impaired); see also Caghan v. Caghan, No.2014CA0094, 2015 WL 2194199, at *6 (Ohio Ct.App. May 11, 2015).

Disavowing reliance on the statute’s limited discovery rule in opposing summary judgment, plaintiff argued instead that the district court should exercise its equitable powers to toll or extend the limitations period under theories of adverse domination, equitable tolling, or equitable estoppel. The district court rejected plaintiffs arguments and granted summary judgment to defendants. The Antioch Company Litigation Trust v. Morgan, et al., No. 3:10-cv-156, 2013 WL 1338834 (S.D.Ohio Apr. 1, 2013). The district court’s deter[582]*582minations of state law are reviewed de novo. Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

A. Adverse Domination

Plaintiff argued that Ohio would apply the doctrine of adverse domination to toll or extend the limitations period applicable to Antioch’s claims against its directors or officers for breach of fiduciary duty. Because the Supreme Court of Ohio has not addressed the doctrine of adverse domination in any context and declined to answer the question certified to it in this case, the task before us is to “predict how the [state’s highest] court would rule by looking to all the available data.” Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir.2001).

The Ohio Court of Appeals has twice rejected adverse domination as generally lacking support in Ohio’s statutes and judicial decisions. See Chinese Merchants Assoc. v. Chin, 159 Ohio App.3d 292, 823 N.E.2d 900, 903 (2004); Squire v. Guardian Trust Co., 79 Ohio App. 371, 72 N.E.2d 137, 146-47 (1947). Although neither of those cases involved Ohio Rev.Code § 2305.09(D), both decisions are relevant to our inquiry and should not be disregarded unless we can conclude that the state’s highest court would decide otherwise. Allstate, 249 F.3d at 454. Plaintiff argued that the Ohio Supreme Court would recognize adverse domination because it takes into account the reality that “defendants’ control of the corporation will make it impossible for the corporate plaintiff to independently acquire the knowledge and resources necessary to bring suit.” Hecht v. Resolution Trust Corp., 333 Md. 324, 635 A.2d 394, 405 (1994).

Notably, other courts considering the question of adverse domination have focused on whether state law would apply a discovery rule to the relevant claim for purposes of the statute of limitations. See, e.g., Wilson v. Paine, 288 S.W.3d 284, 287-88 (Ky.2009); FDIC v. Smith, 328 Or. 420, 980 P.2d 141, 147 (1999); Resolution Trust Corp. v. Scaletty, 257 Kan. 348, 891 P.2d 1110, 1115-16 (1995). As one court explained, “adverse domination shares the same theoretical underpinnings as the discovery rule.” Wilson,

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