Klaus v. Hi-Shear Corp.

528 F.2d 225, 21 Fed. R. Serv. 2d 425
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 15, 1975
DocketNos. 75-1544, 75-1920, 75-1389, 75-1394, 75-2380, 75-2446 and 75-2012
StatusPublished
Cited by55 cases

This text of 528 F.2d 225 (Klaus v. Hi-Shear Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klaus v. Hi-Shear Corp., 528 F.2d 225, 21 Fed. R. Serv. 2d 425 (9th Cir. 1975).

Opinion

OPINION

Before CHOY and GOODWIN, Circuit Judges, and TAYLOR,* District Judge.

CHOY, Circuit Judge:

Since early 1973, Frank A. Klaus has been attempting to wrest control of Hi-Shear Corporation away from George" S. Wing and his allies, Hi-Shear’s present management. Klaus is conducting litigation in district court in which he charges that the Wing group, in its effort to retain control of Hi-Shear, has violated federal and state securities laws and regulations. In a running endeavor to stabilize the battle for control, pending its decision on the merits, the district court issued over a period of months a number of preliminary injunctions against the voting of certain shares of stock. It refused to issue other injunctions requested by Klaus. One side or the other appeals from each order entered by the district court.

All the preliminary injunctions were improperly issued because they were based on a mistaken theory of the law. The plaintiff could not establish a likelihood of success under the Exchange Act claims, so no injunctions should issue on that basis. The ESOT injunction was improper in the circumstances here because plaintiff could not establish irreparable harm. The Caribe injunction and the Midwood order were improper for failure to join an indispensable party, and the injunction on the exercise of stock options was improper as untimely.

We affirm in part, reverse in part and remand.

History of the Litigation

Hi-Shear is a successful California corporation, founded in 1943 by Wing. Wing serves as president and chairman of the board. Klaus first tried to acquire control of Hi-Shear in April 1973 by making a cash tender offer for all outstanding stock. Hi-Shear’s management countered by purchasing over 660,-000 shares from its shareholders pursuant to its own tender offer. Rather than retain them all as non-voting treasury shares, Hi-Shear resold $130,000 of the shares at cost to its wholly-owned subsidiary Hi-Shear Caribe (Caribe). Hi-Shear reported to its shareholders and to the Securities and Exchange Commission (SEC) that it had purchased all of the 600,000 some shares. The district court found that Hi-Shear intended to convey the impression that only Hi-Shear had purchased the shares.

Klaus made a second tender offer on August 8, 1974, for a certain number of shares which he thought necessary for majority control. When his second offer closed on October 4, 1974, Klaus held 555,514 of Hi-Shear’s 1,231,816 outstanding votable shares — about 45 percent. If the 130,000 shares held by Caribe had been non-votable treasury stock, as Klaus then believed, Klaus would have held over 50 percent of the total shares on October 4. At this point, Klaus demanded a special meeting of stockholders for an election of new directors. See Cal.Corp. Code § 2202. The meeting was scheduled for December 20, 1974.

During October 1974, Hi-Shear’s management approved three stock issuances which resulted in Klaus’ controlling a much smaller percentage of the total stock. On October 11, management issued 50,000 shares in exchange for all the stock of Southern California Signal Industries, Inc. (Signal), a machine shop. Under the acquisition agreement, Hi-Shear’s management was granted an irrevocable proxy to vote the shares transferred to Signal’s former owner.

On October 15, management approved formation of an Employee Stock Ownership Trust (ESOT). Hi-Shear donated to ESOT 30,000 treasury shares and guaranteed a bank loan with which ESOT purchased another 50,000 shares from Hi-Shear at market value.

Finally, on October 31, Hi-Shear acquired another shop, Western Methods Corporation (Western). Hi-Shear paid for Western by issuing 100,000 shares to Western’s owner. The sale agreement allowed the seller to rescind the sale if Klaus later should obtain control of Hi-Shear, so long as the seller himself did not vote his 100,000 shares for Klaus.

On October 18, ■ Klaus responded to these maneuvers with a suit in district court alleging violations of sections 10(b) [229]*229and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78n(e). Amendments to his complaint also alleged violations of section 14(a) of the Act, 15 U.S.C. § 78n(a), and of management’s fiduciary duties under state law. He requested rescission of the stock transfers to Signal, and injunctions against the voting of those shares transferred and against any future transfers pursuant to the Signal agreement. On November 7, he amended his complaint to request similar relief as to ESOT and Western transfers.

During November, Klaus apparently learned for the first time that the Caribe shares were outstanding shares, which management intended to vote. On December 13, he again amended his complaint, asserting that the Caribe shares could not be voted under California law and asking that their voting be enjoined. On December 19, the eve of the special election, the court issued a temporary restraining order against the voting of the Caribe shares. The next day, Klaus nevertheless lost his bid for control, as the newly-issued Signal, ESOT, and Western shares were voted for management.

The court scheduled hearings for December 10-13, 1974, on Klaus’ motions for preliminary injunctions. In subsequent weeks, the court issued a number of orders granting or refusing preliminary injunctions pending a decision on the merits of Klaus’ amended complaint.

District Court Orders

January 13 — Order granting “Caribe Injunction” — The court noted its intention to grant a preliminary injunction barring the voting of Caribe’s 130,000 shares. At this time, Caribe was not a named party in the action. On January 28, and 29, Caribe sold 128,000 of its Hi-Shear shares to Midwood Industries. Klaus added Caribe as a defendant in his third amended complaint on February 4.

January 14 — “Rule 62c Injunction”— The court ordered Hi-Shear to hold its regular annual meeting of stockholders, which had not been held in 1974, no later than February 28, 1975. It also ordered Hi-Shear to issue no hew stock before the annual meeting. The court stated that the injunction was issued pursuant to Fed.R.Civ.P. 62(c) (Injunction Pending Appeal), apparently in anticipation of appeals from orders which were not formally announced until February 5.

February 5 — Order denying Klaus’ motions for preliminary injunctions against the voting of the shares issued to Signal and Western Methods.

February 5 — “ESOT Injunction” — The court issued a preliminary injunction barring the voting or counting of shares held by ESOT.

February 5 — “Caribe Injunction” — The court issued a preliminary injunction against the voting of the Hi-Shear stock held by Caribe.

February 12 — “Midwood Order” — The court extended the Caribe Injunction to forbid the voting of the 128,000 shares which Caribe had transferred to Mid-wood, and barred their being voted by any future transferee.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Escamilla v. M2 Technology, Incorporated, et
536 F. App'x 417 (Fifth Circuit, 2013)
Glancy v. Taubman Centers, Inc.
373 F.3d 656 (Sixth Circuit, 2004)
Lyon v. Whisman
45 F.3d 758 (Third Circuit, 1995)
David Stanion v. Secretary of the Air Force
12 F.3d 1108 (Ninth Circuit, 1993)
Stone v. City & County of San Francisco
145 F.R.D. 553 (N.D. California, 1993)
Royal Business Group, Inc. v. Realist, Inc.
933 F.2d 1056 (First Circuit, 1991)
Shoen v. Shoen
804 P.2d 787 (Court of Appeals of Arizona, 1990)
Batus, Inc. v. McKay
684 F. Supp. 637 (D. Nevada, 1988)
Manbourne, Inc. v. Conrad
796 F.2d 884 (Seventh Circuit, 1986)
Plaine v. McCabe
790 F.2d 742 (Ninth Circuit, 1986)
Terrydale Liquidating Trust v. Barness
611 F. Supp. 1006 (S.D. New York, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
528 F.2d 225, 21 Fed. R. Serv. 2d 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klaus-v-hi-shear-corp-ca9-1975.