Legal Advice from L. Brent Bozell III
Anyone who reviews the complaint filed on behalf of the Kochs, which also includes copies of the shareholder agreement, can plainly see that the Kochs are unequivocally in the right. This is not a debate about who has the best vision for the libertarian movement. If libertarians and conservatives have any regard for the law and for shareholder agreements, there is just no way you take up sides against the Kochs.
I decided to leave a comment:
Dear Mr. Bozell:
I’m curious at how you arrived at your conclusion that anyone “can plainly see that the Kochs are unequivocally in the right.” Which particular phrases in the Shareholders’ Agreement do you read as barring testamentary dispositions of the shares? Are those terms sufficiently specific to overcome the presumption against such restrictions? (“Courts generally will not apply restrictions on the transfer of shares to testamentary dispositions [transfers through a will] in the absence of express terms that refer to such transfers.” Fletcher Cyclopedia on the Law of Corporations, Chapter 58, Section XX.)
Oddly enough, people with a great deal more experience in Kansas corporate law than either us have seem to lack your certitude on the issue. See this informative Reuters piece on the case:
Edwin Hecker, a professor of business associations at The University of Kansas School of Law. Case law in Kansas, he said, holds that restrictions on the transferability of corporate shares are strictly construed. If transfers such as those made upon death are not explicitly addressed in a shareholder agreement, Hecker said, “You have to have a pretty strong case that it was intended to be covered.” What’s more, he said the language of the agreement, which says shareholders may “otherwise dispose of” shares could be read to refer to situations involving shares being exchanged for money or other collateral, rather than passing to heirs.
I don’t know this guy Hecker, though. Could be he’s afflicted with liberal bias. You should have him checked out.
Speaking of bias, Bozell begins the piece by noting his “great admiration for many of the fine scholars and academics that work at Cato, along with the work they produce.” Which is odd, because just a few years ago, he thought we were in league with some sort of “sleazoid”/”Hollywood”/”media giant” pervo-industrial complex. I guess he’s had a change of heart.