FORT WORTH, TX – Winstead PC, a leading national law firm, today announced that David Fowler Johnson, Managing Shareholder of the firm’s Fort Worth office and the lead writer for the Texas Fiduciary Litigator blog, was awarded the JDSupra Readers’ Choice Award for Top Author in Wealth Management.

This is the fourth year in a row David has received an award from JDSupra in the Wealth Management field. The annual award recognizes top authors, and firms, who were read by C-suite executives, in-house counsel, media, and other professionals across the JD Supra platform during 2021. Continue reading.

Shareholder David F. Johnson will address the various issues that arise when a trustee enters into a self-interested transaction with the trust. Among other issues, it will address the duty of loyalty, the presumption of unfairness, trustee compensation, non-compensation benefits, exculpatory clauses, consent/release agreements, and procedural issues in litigating self-interested transactions.

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On Thursday, February 11, Winstead Shareholder David F. Johnson presents his 2020-2021 Fiduciary Litigation Update at the UT Law CLE 18th Annual Changes and Trends Affecting Special Needs Trusts. David’s presentation will cover recent statutory changes and case law updates.

Date: Thursday, February 11, 2022 at 9:30 a.m.
CLE Credit: 0.75 hr
Location: AT&T Conference Center, Austin, Texas – Webcast Available

This event brings together nationally recognized professionals in the SNT field, features the latest updates and hot topics, and offers a great set of materials including sample forms, drafting tips, sample language, and resources. Learn more.

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David F. Johnson co-presented “Minority Investor Rights in Private Companies: Buy-Sell Agreements, Court-Ordered Buyouts, Breach of Fiduciary Duty” for a nationwide audience for Stafford Webinars on January 20, 2021. David was honored to present with Peter A. Mahler and Peter J. Sluka from Farrell Fritz, PC from New York.  The presenters discussed the rights of minority investors in private companies (including the right to vote, inspect books and records, preemptive rights, derivative actions, petition for dissolution, and receiverships), the limitations on those rights (expulsion, dilution, transfer limitations, freeze out merger), and factors to consider in drafting a buy-out agreement and securing a buyout of their ownership stake.

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A common complaint of a minority shareholder is the denial of access to the corporation’s books and records. A shareholder enjoys the right to examine and copy certain records of the corporation in which the shareholder owns shares. That right exists by statute, see Tex. Bus. Orgs. Code § 21.218(b), and at common law, see Texas Infra—Red Radiant Co. v. Erwin, 397 S.W.2d 491, 493 (Tex. App.—Eastland 1965, writ ref’d n.r.e.). Section 21.218 provides:

On written demand stating a proper purpose, a holder of shares of a corporation for at least six months immediately preceding the holder’s demand, or a holder of at least five percent of all of the outstanding shares of a corporation, is entitled to examine and copy, at a reasonable time, the corporation’s books, records of account, minutes, and share transfer records relating to the stated purpose. The examination may be conducted in person or through an agent, accountant, or attorney.

Continue Reading Appellate Court Grants Mandamus Relief To Require A Jury Trial On The Issue Of Whether The Inspection Of Books And Records Of A Company Was Sought For A Proper Purpose

In R.P. Small Corp. v. Land Dep’t, Inc., the plaintiff sued the defendant for breaching fiduciary duties due to a confidential relationship regarding oil and gas development. No. H-20-14902021 U.S. Dist. LEXIS 133695 (S. D. Tex. July 19, 2021). The plaintiff alleged that the defendant took advantage of his relationship, lied about his qualifications and experience, and overbilled and had self-dealing transactions. The defendant filed a motion to dismiss based on the economic loss rule, arguing that the plaintiff’s claims all arose from oral and written contracts. The federal district court denied the motion to dismiss. The court first discussed the economic loss rule:

Under Texas law, the “economic loss rule generally precludes recovery in tort for economic losses resulting from a party’s failure to perform a contract when the harm consists only of the economic loss of a contractual expectancy.” In determining if the economic loss rule applies, Texas courts look to both the “source of the alleged duty and the nature of the claimed injury.” “[A] party may elect a recovery in tort if the duty breached stands independent from the contractual undertaking, and the alleged damages are not solely the result of a bargained-for contractual benefit.” This is because “‘[t]ort obligations are in general obligations that are imposed by law—apart from and independent of promises made and therefore apart from the manifested intention of the parties—to avoid injury to others.'”

Continue Reading Federal Courts Deny Motions To Dismiss Breach Of Fiduciary Duty Claims Due To The Economic Loss Rule

David F. Johnson presented his paper “Litigating Self-Interested Transactions Involving Fiduciaries” to the State Bar of Texas’s Fiduciary Litigation Course on December 2-3, 2021, in San Antonio, Texas. This presentation discussed a fiduciary’s duty of loyalty, the right to compensation and other benefits, the concept of self-interested transactions, the presumption of unfairness that attaches to self-interested transactions, the factors that fiduciaries must meet to prove the fairness, and procedural issues (in summary judgment proceedings and at trial) in litigating the presumption. David was also the course director for the Fiduciary Litigation Course,  which had great attendance.

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In Hotze v. In Mgmt., LLC, family members sued each other over control of a family business. No. 14-18-00995-CV, 2021 Tex. App. LEXIS 5821 (Tex. App.—Houston [14th Dist.] July 22, 2021, no pet. history). Three of the brothers ended up with greatly increased control of the company after debt the company owed to a partnership formed by the three brothers was partially converted into company stock. Id. Two other brothers and other associated parties filed two lawsuits, bringing both individual and derivative claims, which were consolidated for trial. “A key issue in the case was whether the promissory note between Troika and CECO authorized a partial conversion of debt for stock.” Id. The trial court concluded that it did, and instructed the jury to that effect. The two brothers appealed. Continue Reading Court Holds That Promissory Note Did Not Allow Partial Conversion To Equity

In Novedea Sys. v. Colaberry, Inc., co-founders of a business discussed terms of a buy-out, but ended up in litigation. No. 6:20-cv-00180-JDK, 2021 U.S. Dist. LEXIS 152372 (E. D. Tex. August 13, 2021). One co-founder sued on his behalf and on behalf of the company against the other co-founder without discussing the suit with the other co-founder or the board of directors. The defendant filed a motion for summary judgment, arguing that the plaintiff did not have authority to file a lawsuit for the company. The plaintiff responded that his “authority derives from his standing “as a longtime manager and corporate officer” of Novedea, or alternatively, as a shareholder bringing a derivative action.” Id. Continue Reading Court Holds That Shareholder Derivative Suit May Proceed Against An Officer Without A Pre-Suit Demand Where The Case Involved A Closely-Held Corporation

David F. Johnson presented his paper “Business Divorce: Minority Shareholder Rights In Texas” to the State Bar of Texas’s Business Disputes Course on September 2-3, 2021. This presentation addressed shareholder oppression claims in Texas, minority shareholder rights (such as contractual rights, stock rights, disclosure rights, distribution rights, employment rights, and receivership rights), fiduciary duties in business divorce cases, derivative actions, and attorney representation issues.

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