It’s been a while since the Business Court devoted a full opinion to a shareholder’s rights to inspect corporate records. But last week, Judge Bledsoe filled that gap with his Order and Final Judgment in Sharman v. Fortran Corp., 2018 NCBC 27.
Fortran? If you are thinking that Fortran Corp. must control the rights to the Fortran computer coding language, like I was, you are wrong. This Fortran Corporation is a "telecommunications system integrator dedicated to designing, sourcing, implementing and maintaining complex communications solutions." That’s what its last Annual Report says.
The Sharman Opinion deals with the request of multiple Fortran shareholders to inspect a wide swath of Fortran’s corporate records. I can’t think of another area of the law where you get a statutory right to discovery before filing a lawsuit (though it’s limited to what the statute says you can get). And you are entitled to a response in five business days! No thirty or sixty days waiting for a response. Plus you might be entitled to recover your attorneys’ fees. I wonder why every claim by a shareholder against a director or officer for, say, a breach of fiduciary duty, isn’t preceded by the use of this powerful tool.
There are two "separate and distinct categories" of inspection requests. Op. ¶16 (quoting Russell M. Robinson, II, Robinson on North Carolina Corporation Law § 10.0 1(7th ed.2017)). These are generally referred to as "absolute rights of inspection" (per. G.S.§55-16-02(a), and "qualified rights of inspection (per. G.S. §55-16-02(b)).
Absolute Right Of Inspection
Section 55-16-01(e) of the General Statutes lists certain records which a corporation is required to keep. A shareholder is "entitled" to inspect these records:
(1) Its articles or restated articles of incorporation and all amendments to them currently in effect;
(2) Its bylaws or restated bylaws and all amendments to them currently in effect;
(3) Resolutions adopted by its board of directors creating one or more classes or series of shares, and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding;
(4) The minutes of all shareholders’ meetings, and records of all action taken by shareholders without a meeting, for the past three years;
(5) All written communications to shareholders generally within the past three years and the financial statements required to be made available to the shareholders for the past three years under G.S. 55-16-20;
(6) A list of the names and business addresses of its current directors and officers; and
(7) Its most recent annual report delivered as required by G.S. 55-16-22.
"Absolute" Doesn’t Mean Automatic
Not every shareholder has these "absolute" inspection rights. Only "qualified shareholders" can exercise them. Only those who have held their shares for more than six months before making their demand for inspection, or who hold at least five percent of any class of the corporation’s shares are "qualified." N.C. Gen. Stat. §55-16-02(g).
"Qualified" Rights Are Tougher To Obtain
Those shareholders trying to exercise the "qualified rights" of Section 55-16-02(b) have to satisfy a more difficult standard. The requesting shareholder must show that his: