lunes, 17 de diciembre de 2007


Caso: Los directores habían tratado de despojar a los accionistas del derecho de expresión y ello era por que los directores controlaban la sociedad y nombraban a la mayoría de los directores, como directores que eran se negaban a convocar a una junta para cambiar esas reglas, la corte rechazo este hecho al considerarlo restrictivo de la liberta de expresión de los accionistas.

Matter of Auer v. Dressel:

When the holders request a special holdersí meeting, when the necessary numbers of voting shares back such a request, and no purpose for the meeting is improper, then the director must call such a meeting.

Holders who are empowered to elect directors can also remove them for cause. And they can also exclude another class of holders from replacing the vacancy when the vacancy in the directors is from that class of holders.

[Z] => President cannot refuse to call holders meeting and the holders cannot dump the director at will, UNLESS for cause.

Auer v. Dressel, Court of Appeals of New York, 118 N.E.2d 590 (1954)

The directors of R. Hoe & Co. removed Joseph L. Auer as president. Class A stockholders had the power to elect nine of 11 directors. The bylaws required the president to call a special meeting when asked by a majority of stockholders entitled to vote at such a meeting, so over 55% of class A stockholders asked the new president to call a meeting. The new president refused to call the meeting claiming that none of the stated purposes for the meeting were proper for class A stockholders. Is it proper for the class A stockholders to call a meeting to vote on a resolution indorsing Auer to be reinstated as president? Held Yes. The shareholders can express themselves, even if they cannot by the resolution actually effect the change. Do the class A shareholders have the power to amend the bylaws to authorize replacement of a director only by the class of stockholders represented by the removed director? Held Yes. These particular stockholders have the power to elect and remove nine of the 11 directors with cause, so it is appropriate that they would amend the bylaws to allow themselves to name replacements. Even though the certificate of incorporation allows directors to remove a director on charges, that doesn’t take away the "traditional, inherent power [of the stockholders] to remove their own directors." That class has the power to name nine of the 11 directors, so they should be able to exclude common stockholders from naming their replacements.

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