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| Protecting the Rights of Business Owners |
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| Arkansas Shareholder Law Resources |
I. Shareholder Inspection Rights
Shareholders in an Arkansas close corporation have the same inspection rights as those in ordinary Arkansas corporations.
See Ark. Code Ann. § 4-26-715 (2001). In order to have standing to exercise those rights, the requesting person must make
a written demand stating a proper purpose and be a shareholder of the corporation for at least six months preceding the
demand. § 4-26-715(b). Shareholders with standing, or their agents, then have the right to examine and copy the
corporation’s “books and records of account, minutes, and record of shareholders.” Id.
If the corporation or its officers refuse a properly requested inspection, the aggrieved shareholder may file a civil suit to obtain
an order requiring the corporation to comply with the request. § 4-26-715(c)(1). Pursuant to its order, the court may impose
limitations and restrictions on an ordered inspection and “grant such other relief as to the court may seem just and proper.” §
4-26-715(c)(2). However, the court may refuse or place restrictions on an inspection if it determines that the requesting
shareholder has misused information obtained through a previous inspection of corporate documents or made the present
demand in bad faith or for an improper purpose. § 4-26-715(c)(4).
II. Shareholder Oppression
There is statutory authorization for judicial dissolution of an Arkansas corporation for actions by directors or controlling
interests in a corporation that are “illegal, oppressive, or fraudulent.” § 4-26-1108(a)(1)(B). Arkansas courts have adopted
the New York standard when defining oppression, namely, “conduct that substantially defeats the ‘reasonable expectations’”
of shareholders. Smith v. Leonard, 876 S.W.2d 266, 272 (Ark. 1994) (quoting In re Kemp & Beatley, Inc., 473 N.E.2d 1173 (N.
Y. 1984). However, the majority shareholders have not engaged in oppressive conduct merely because the minority
shareholders’ “subjective hopes and desires in joining the venture were not fulfilled.” Taylor v. Hinkel, 200 S.W.3d 387, 392
(Ark. 2004). Close corporations are “unique creatures” that often lead shareholders to expect to have management positions
or other employment opportunities with the corporation when they decide to make their investment. Id. Therefore, before
making a determination that the majority interest engaged in oppressive conduct, there must be an inquiry into the extent of
the majority’s knowledge regarding the minority’s expectations concerning the corporation. Id. Furthermore, in at least one
unreported case, the Court of Appeals of Arkansas held that majority shareholders in close corporations owe fiduciary duties
to minority shareholders that are breached when the majority engages in oppressive conduct. Hall v. Wells, No. 87-399, 1988
WL 5517, at *2 (Ark. Ct. App. Jan. 27, 1988).
III. Shareholder Derivative Suits
Shareholders of close corporations may bring derivative suits on behalf of a corporation for wrongs against the corporation,
but as individuals they have no direct cause of action unless they have individually suffered direct harm. See § 4-26-714. In
order to have standing to bring a derivative suit, a plaintiff must have been a shareholder at the time the cause of action
arose or received the shares by operation of law from someone who held them at that time. § 4-26-714(a). Furthermore, the
plaintiff must make a demand on the corporation and allege in his or her complaint that the demand was rejected or otherwise
explain why no demand was made. § 4-27-740. However, if the suit is brought by shareholders representing less than five
percent of the outstanding shares of any class of the corporation, the corporation or the defendants may move the court to
order the plaintiff to provide security unless the value of the plaintiff’s shares is at least $25,000. § 4-26-714(c)(1). The
defendant’s motion to compel security must be based on an assertion that there is no reasonable possibility that the suit will
benefit the corporation or that the defendant, if other than the corporation, did not participate in the transaction that is the
subject of the suit. § 4-26-714(c)(2). Furthermore, Arkansas courts have declined to recognize a direct cause of action by
shareholders on behalf of the corporation where the recovery runs to the shareholders for an injury to the corporation. See
Hames v. Cravens, 966 S.W.2d 244, 248 (Ark. 1998). Where shareholders are harmed directly they have a direct cause of
action; however, this type of suit is not derivative on behalf of the corporation. See id.
Shareholders in an Arkansas close corporation have the same inspection rights as those in ordinary Arkansas corporations.
See Ark. Code Ann. § 4-26-715 (2001). In order to have standing to exercise those rights, the requesting person must make
a written demand stating a proper purpose and be a shareholder of the corporation for at least six months preceding the
demand. § 4-26-715(b). Shareholders with standing, or their agents, then have the right to examine and copy the
corporation’s “books and records of account, minutes, and record of shareholders.” Id.
If the corporation or its officers refuse a properly requested inspection, the aggrieved shareholder may file a civil suit to obtain
an order requiring the corporation to comply with the request. § 4-26-715(c)(1). Pursuant to its order, the court may impose
limitations and restrictions on an ordered inspection and “grant such other relief as to the court may seem just and proper.” §
4-26-715(c)(2). However, the court may refuse or place restrictions on an inspection if it determines that the requesting
shareholder has misused information obtained through a previous inspection of corporate documents or made the present
demand in bad faith or for an improper purpose. § 4-26-715(c)(4).
II. Shareholder Oppression
There is statutory authorization for judicial dissolution of an Arkansas corporation for actions by directors or controlling
interests in a corporation that are “illegal, oppressive, or fraudulent.” § 4-26-1108(a)(1)(B). Arkansas courts have adopted
the New York standard when defining oppression, namely, “conduct that substantially defeats the ‘reasonable expectations’”
of shareholders. Smith v. Leonard, 876 S.W.2d 266, 272 (Ark. 1994) (quoting In re Kemp & Beatley, Inc., 473 N.E.2d 1173 (N.
Y. 1984). However, the majority shareholders have not engaged in oppressive conduct merely because the minority
shareholders’ “subjective hopes and desires in joining the venture were not fulfilled.” Taylor v. Hinkel, 200 S.W.3d 387, 392
(Ark. 2004). Close corporations are “unique creatures” that often lead shareholders to expect to have management positions
or other employment opportunities with the corporation when they decide to make their investment. Id. Therefore, before
making a determination that the majority interest engaged in oppressive conduct, there must be an inquiry into the extent of
the majority’s knowledge regarding the minority’s expectations concerning the corporation. Id. Furthermore, in at least one
unreported case, the Court of Appeals of Arkansas held that majority shareholders in close corporations owe fiduciary duties
to minority shareholders that are breached when the majority engages in oppressive conduct. Hall v. Wells, No. 87-399, 1988
WL 5517, at *2 (Ark. Ct. App. Jan. 27, 1988).
III. Shareholder Derivative Suits
Shareholders of close corporations may bring derivative suits on behalf of a corporation for wrongs against the corporation,
but as individuals they have no direct cause of action unless they have individually suffered direct harm. See § 4-26-714. In
order to have standing to bring a derivative suit, a plaintiff must have been a shareholder at the time the cause of action
arose or received the shares by operation of law from someone who held them at that time. § 4-26-714(a). Furthermore, the
plaintiff must make a demand on the corporation and allege in his or her complaint that the demand was rejected or otherwise
explain why no demand was made. § 4-27-740. However, if the suit is brought by shareholders representing less than five
percent of the outstanding shares of any class of the corporation, the corporation or the defendants may move the court to
order the plaintiff to provide security unless the value of the plaintiff’s shares is at least $25,000. § 4-26-714(c)(1). The
defendant’s motion to compel security must be based on an assertion that there is no reasonable possibility that the suit will
benefit the corporation or that the defendant, if other than the corporation, did not participate in the transaction that is the
subject of the suit. § 4-26-714(c)(2). Furthermore, Arkansas courts have declined to recognize a direct cause of action by
shareholders on behalf of the corporation where the recovery runs to the shareholders for an injury to the corporation. See
Hames v. Cravens, 966 S.W.2d 244, 248 (Ark. 1998). Where shareholders are harmed directly they have a direct cause of
action; however, this type of suit is not derivative on behalf of the corporation. See id.
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Arkansas Resources