in Re Helix Energy Solutions Group, Inc.

440 S.W.3d 167, 2013 WL 5470089, 2013 Tex. App. LEXIS 12225
Court of Appeals of Texas·Decided September 30, 2013·No. 14-13-00238-CV·Published·Cited by 7 cases

Opinions

[170]*170OPINION

KEM THOMPSON FROST, Chief Justice.

This mandamus proceeding arises out of a shareholder derivative action involving a Minnesota corporation whose business is based in Texas. The relators are the corporation and current and former officers and directors who seek mandamus relief in this court in connection with the trial court’s denial of their motion to stay, motion to dismiss, special exceptions, and plea to the jurisdiction. The relators argue they are entitled to mandamus relief because: (1) the real party in interest, who claims to be a shareholder of the company, failed to allege with particularity in his petition that the board of directors of the corporation wrongfully refused his demand; (2) the real party in interest failed to allege in his petition that he was a shareholder at the time of the transaction of which he complains; (3) the trial court abused its discretion in denying the rela-tors’ plea to the jurisdiction because the real party’s failure to plead the two foregoing matters means that he does not have standing to bring a derivative action, thus depriving the trial court of subject-matter jurisdiction; and (4) the trial court abused its discretion in denying the relators’ motion to stay the derivative action in the underlying case in favor of a first-filed federal derivative action. We find merit in the first two arguments and conclude that the trial court abused its discretion to the extent it denied the relators’ special exceptions regarding the sufficiency of the real party’s pleading in these two respects. We conclude that the third and fourth arguments lack merit and deny the remainder of the relators’ requested mandamus relief.

I. Factual and PROCEDURAL Background

Relator Helix Energy Solutions Group, Inc. (“Helix”) is a Houston-based energy company incorporated in Minnesota. Re-lators Owen Kratz, Anthony Trípodo, Bart H. Heijermans, Alisa B. Johnson, Gordon F. Ahalt, Bernard J. Duroc-Danner, John V. Lovoi, T. William Porter, III, Nancy K. Quinn, William L. Transier, and James A. Watt (hereinafter collectively “the Individuals”) are current and former officers and directors of Helix. Real party in interest Mark Lucas has pleaded that he has been a shareholder of Helix since 2010. Lucas has asserted outside of his pleadings that he has been a shareholder of Helix since 2006.

The Dodd-Frank Act

The Dodd-Frank Wall Street Reform and Consumer Protection Act, (“Dodd Frank”), was enacted on July 21, 2010. See Pub. L. No. 111-203, 124 Stat. 1376 (2010). Under Dodd-Frank, at least once every three years, a proxy or consent or authorization for an annual or other meeting of the shareholders of a publicly-traded company must include a separate resolution subject to shareholder vote to approve the compensation of executives. 15 U.S.C. § 78n-l(a). These shareholder votes are often referred to as “say-on-pay votes.” See Raul v. Rynd, 929 F.Supp.2d 333, 343-44 (D.Del.2013). Dodd-Frank provides that these say-on-pay votes “shall not be binding” on a company or its board of directors, and “may not be construed” in any of the following ways: (1) “as overruling a decision” by the company or its board of directors; (2) “to create or imply any change to the fiduciary duties” of the company or its board of directors; (3) “to create or imply any additional fiduciary duties” for the company or its board of directors; or (4) “to restrict or limit the ability of shareholders to make proposals for inclusion in proxy materials related to executive compensation.” 15 U.S.C. § 78n-l(c).

[171]*171 Helix Shareholders’ Say-otí-Pay Vote

Helix filed a Form 8-K -with the Securities and Exchange Commission on May 18, 2011, reporting the results of its annual shareholder meeting, including Helix’s first say-on-pay vote. In this say-on-pay vote regarding the 2010 compensation of Helix executive officers, shareholders cast 27,842,921 votes for and 59,156,767 votes against this compensation. Accordingly, the shareholders did not approve the 2010 compensation of Helix’s executive officers.

Federal Derivative Action

A few months after the say-on-pay vote, the City of Sterling Heights Police & Fire Retirement System (“the Retirement System”) filed a shareholder’s derivative suit against the Individuals in the United States District Court for the Southern District of Texas, seeking to assert clainis by Helix against the Individuals for breach of fiduciary duty and unjust enrichment (“the Federal Action”). In its complaint, filed on July 8, 2011, the Retirement System alleged that historically the Helix Board has represented to shareholders that it follows a company-wide pay-for-performance compensation policy. The Retirement System alleged that in 2010, Helix’s net revenue, gross profits, operating profit, net earnings, and earnings per share declined from 2009 levels. According to the Retirement System, the say-on-pay vote of the Helix shareholders is “direct and probative evidence underscoring the fact that the 2010 executive compensation was not in the shareholders’ best interests, and therefore a breach of (the duty of] loyalty.”

The Retirement System did not make a pre-suit demand on Helix’s board of directors that the board assert these claims of Helix against the Individuals. Instead, the Retirement System alleged that making such a demand would have been futile. Shortly after the suit was filed, the defendants filed a motion to dismiss the Federal Action on the grounds that the Retirement System had failed to plead particularized facts establishing demand futility and had failed to state a claim upon which relief could be granted. The Retirement System moved for a voluntary dismissal of its derivative action, but the federal district court denied this motion. The federal district court heard argument on Helix’s motion to dismiss in October 2011, but there is no indication in our mandamus record that the federal court has ruled on the motion.

Lucas’s Demand on the Helix Board of Directors

Lucas sent a letter to the Helix Board of Directors (hereinafter “the Board”) containing a demand by Lucas under Rule 23.09 of the Minnesota Rules of Civil Procedure. In this letter, dated September 28, 2011, Lucas demanded that the Board undertake an independent internal investigation into whether the Individuals violated Minnesota or federal law. Lucas also demanded that the Board commence a civil action against the Individuals to recover for the benefit of the Company the damages allegedly sustained by Helix as a result of the Individuals’ alleged breaches of their respective fiduciary duties.

Shortly thereafter, on October 7, 2011, Lucas’s counsel received a letter from relator Porter on behalf of the Board in which Porter acknowledged receipt of the demand. According to Lucas, the Board has failed to provide any substantive response to the demand, and this non-response is a “functional refusal” of the demand.

Harris County Derivative Action

Approximately seven months after sending his demand letter to the Board, Lucas, derivatively on behalf of Helix, brought suit against the Individuals as defendants and Helix as the nominal defendant in a derivative action in the 270th District [172]*172Court of Harris County (“the State Action”).

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in Re Helix Energy Solutions Group, Inc., 440 S.W.3d 167, 2013 WL 5470089, 2013 Tex. App. LEXIS 12225 (Tex. Ct. App. 2013).

440 S.W.3d 167 (in Re Helix Energy Solutions Group, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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