McKay v. Longman

CourtSupreme Court of Connecticut
DecidedJuly 23, 2019
DocketSC20013, SC20014
StatusPublished

This text of McKay v. Longman (McKay v. Longman) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKay v. Longman, (Colo. 2019).

Opinion

*********************************************** The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. *********************************************** MCKAY v. LONGMAN—CONCURRENCE

ROBINSON, C. J., concurring. I write separately to highlight my understanding of part III A of the majority’s comprehensive and well reasoned opinion, which I understand to adopt, in a very limited manner, the doc- trine of outside reverse piercing of the corporate veil as a matter of Connecticut law for cases filed before July 9, 2019. See footnote 5 of this concurring opinion. The concerns about reverse piercing stated in Justice Zarella’s concurring opinion in Commissioner of Envi- ronmental Protection v. State Five Industrial Park, Inc., 304 Conn. 128, 151, 37 A.3d 724 (2012), originally left me reluctant to join the majority’s decision. The majority’s narrow approach to reverse piercing, as shown by the distinctions drawn in part III B of its opinion, is, however, responsive to those concerns while preserving that doctrine as an equitable remedy when an individual abuses the ‘‘legal fiction’’ of the corporate form as a ‘‘sham or device to accomplish some ulterior purposes’’; Hoffman Wall Paper Co. v. Hartford, 114 Conn. 531, 534–35, 159 A. 346 (1932); such as when a corporate entity does not serve ‘‘a legitimate business purpose,’’ and is only ‘‘a mere shell . . . used primarily as an intermediary to perpetrate fraud or pro- mote injustice.’’ (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 236, 990 A.2d 326 (2010). Accordingly, I join the majority opinion in its entirety. By way of background, I observe that, in ‘‘traditional veil piercing, the veil shields a shareholder who is abus- ing the corporate fiction to perpetuate a wrong. In out- side reverse piercing, however, the corporate form pro- tects the corporation which, through the acts of a dominant shareholder or other corporate insider, uses the legal fiction to perpetuate a fraud or defeat a rightful claim of an outsider. While traditional [piercing] and outside reverse piercing affect diverse corporate inter- ests, the purposes sought to be achieved are similar. ‘‘Both types of piercing strive to achieve an equitable result. . . . In traditional piercing, equity requires [that] the veil be pierced to impose liability on a share- holder who has abused the corporate form for his or her own advantage. . . . Similarly, in outside reverse piercing, an equitable result is achieved by ignoring the corporate fiction to attach liability to the corporation.’’ (Citations omitted.) In re Phillips, 139 P.3d 639, 645 (Colo. 2006); see also, e.g., Naples v. Keystone Build- ing & Development Corp., supra, 295 Conn. 231–33 (describing purpose of piercing corporate veil under Connecticut law). As Justice Zarella’s concurring opinion explained, the fundamental difference between the two doctrines goes beyond ‘‘whether an individual has abused the corpo- rate form’’ because ‘‘[u]nder traditional veil piercing, when an individual is held liable for the actions of the corporation, the corporation itself is not affected by the piercing. In the case of reverse veil piercing, how- ever, the opposite is true. The corporation itself is lia- ble—and thus corporate assets are vulnerable—for the wrongdoing of an individual. In more concrete terms, reverse veil piercing allows courts to alter the legisla- tively created corporate form by allowing a creditor to reach otherwise protected corporate assets.’’ Commis- sioner of Environmental Protection v. State Five Industrial Park, Inc., supra, 304 Conn. 155–56. In expressing his view that the doctrine of outside reverse piercing ‘‘should be disavowed’’ as a matter of Connecticut law, which would require us to overrule the Appellate Court’s decision in Litchfield Asset Man- agement Corp. v. Howell, 70 Conn. App. 133, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002),1 Justice Zarella’s concurrence identified three major ‘‘compelling considerations’’ that he believed to ‘‘mili- tate against allowing reverse veil piercing . . . .’’ Com- missioner of Environmental Protection v. State Five Industrial Park, Inc., supra, 304 Conn. 153. Specifically, Justice Zarella rejected reverse veil piercing on the grounds that it (1) ‘‘bypasses normal judgment-collec- tion procedures, whereby judgment creditors attach the judgment debtor’s shares in the corporation and not the corporation’s assets,’’ (2) ‘‘allows a judgment creditor to reach the assets of a corporation to the detriment of other shareholders and existing creditors,’’ and (3) ‘‘injects uncertainty into the corporate structure in a way that could systemically alter the ability of corpora- tions to obtain loans and investment capital.’’ (Internal quotation marks omitted.) Id., 155–60. Given these con- cerns, Justice Zarella would ‘‘reject the doctrine of reverse veil piercing until the legislature signals other- wise.’’ Id., 160. I join the majority in the present case because I believe these concerns have been both under- mined by subsequent developments in the law, or miti- gated by what I understand to be the narrow approach taken in the majority opinion. Justice Zarella’s first concern about reverse veil pierc- ing, which was founded on the decision of the United States Court of Appeals for the Tenth Circuit in Cascade Energy & Metals Corp. v. Banks, 896 F.2d 1557, 1577 (10th Cir.), cert. denied sub nom. Weston v. Banks, 498 U.S. 849, 111 S. Ct. 138, 112 L. Ed. 2d 105 (1990), is that the doctrine ‘‘bypasses normal judgment-collection procedures, whereby judgment creditors attach the judgment debtor’s shares in the corporation and not the corporation’s assets.’’ (Internal quotation marks omitted.) Commissioner of Environmental Protection v. State Five Industrial Park, Inc., supra, 304 Conn. 156. In Cascade Energy & Metals Corp., the Tenth Circuit declined to apply reverse veil piercing as a matter of Utah law, stating that ‘‘traditional theories of conver- sion, fraudulent conveyance of assets, respondeat supe- rior and agency law are adequate to deal with situations [in which] one seeks to recover from a corporation for the wrongful conduct committed by a controlling stockholder without the [need] to invent a new theory of liability.’’ Cascade Energy & Metals Corp. v. Banks, supra, 1577; see also Floyd v.

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McKay v. Longman, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-longman-conn-2019.