Notwithstanding Internal Affairs Doctrine, Some Claims in Derivative Action Governed by New York Law

On June 3, 2014, the First Department issued a decision in Culligan Soft Water Co. v. Clayton Dubilier & Rice LLC, 2014 NY Slip Op. 03955, holding that notwithstanding the internal affairs doctrine, New York law applied to some of the derivative plaintiff's claims.

In Culligan, the plaintiff brought a derivative action on behalf of Culligan, Ltd., a Bermuda company. The First Department reversed in part the trial court's dismissal of the complaint, holding that notwithstanding the internal affairs doctrine, some of the plaintiff's claims were governed by New York, not Bermuda, law, explaining:

[T]he internal affairs doctrine . . . recognizes that only one State should have the authority to regulate a corporation's internal affairs — matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders. Since the internal affairs doctrine does not apply to those defendants who are not current officers, directors, and shareholders of Culligan Ltd., namely, Angelo, Gordon & Co., L.P., Silver Oak Capital, L.L.C., Centerbridge Special Credit Partners, L.P., CCP Credit Acquisition Holdings, L.L.C., CCP Acquisition Holding, L.L.C., and Clayton Dubilier & Rice LLC, Bermuda law does not apply to claims asserted against them.

Nor does the internal affairs doctrine apply to claims based on sections of the Business Corporation Law (BCL) enumerated in BCL §§ 1317 and 1319. BCL § 1319(a)(1) expressly provides that BCL § 626 (shareholders' derivative action) shall apply to a foreign corporation doing business in New York. Thus, the issue of plaintiffs' standing to bring a shareholder derivative action is governed by New York law, not Bermuda law. We note that Matter of CPF Acquisition Co. v. CPF Acquisition Co. (255 AD2d 200 [1st Dept 1998]) held that the plaintiff's standing to sue was governed by Delaware law because Delaware was the State of the corporation's incorporation. However, there is no indication that the plaintiff in that case raised BCL § 1319.

Pursuant to German-American Coffee Co. v. Diehl (216 NY 57, 62-64 [1915]) and BCL §§ 1319(a)(1), 719(a)(1), and 510, New York law applies to the second cause of action, which alleges that the directors of Culligan Ltd. declared illegal dividends.

To the extent plaintiffs allege violations of BCL § 720 (e.g. waste and unlawful conveyance), which is made applicable to foreign corporations doing business in New York by BCL § 1317(a)(2), those claims are also governed by New York law. However, to the extent plaintiffs allege a violation of a section of the Business Corporation Law not enumerated in BCL § 1317 (e.g. § 717, which is part of plaintiffs' breach of fiduciary duty claim), New York law does not apply. Those claims are governed by Bermuda law and were thus correctly dismissed.

BCL § 1317 permits plaintiffs to sue Culligan Ltd.'s directors and officers. However, defendant Clayton Dubilier & Rice Fund VI Limited Partnership (CDR Fund VI) is neither a director nor an officer of Culligan Ltd.; it is Culligan Ltd.'s majority shareholder. Hence, there is no basis for applying New York law to the claims against CDR Fund VI. It is undisputed that, under Bermuda law, plaintiffs' claims against CDR Fund VI, as currently pleaded, were correctly dismissed.

(Internal quotations and citations omitted) (emphasis added).

One of the challenges in a derivative action is the proper application of the law of the jurisdiction of incorporation, not New York, to claims under the internal affairs doctrine. As this decision illustrates, however, the internal affairs doctrine might not apply to all claims in an action. Thus, a plaintiff needs to do a claim-by-claim analysis to determine which law applies to which claim.