Mr White is the owner and principal director of a limited liability company, White Manufacturing LLC, incorporated in the state of Delaware USA. White Manufacturing was initially set up, in 1991, with a share capital of US$20,000, with each share having a par value of US$1. Mr White is the majority shareholder with 15,001 shares, the remaining shares owned by Mr Pink (1000 shares), Mr Brown (1000 shares), the balance of the shares (2,999) were, in 1995, transferred by the original owner, Mr Green, to Mr White’s daughter Clarissa. White Manufacturing produces high volume plastic products for the small gifts market.
The company grew rapidly initially and Mr White set up subsidiary companies in Germany (White Holdings GmbH) and the UK (White Manufacturing (UK) Ltd.) with a view to expanding into the European market. The German company maintains an office in Hamburg, with five employees but there is no manufacturing operation in Germany. The UK company owns a small factory in Corby with 16 employees (which produces high precision plastic products).
In 2005, White Manufacturing acquired, for US$20,000,000, a defunct but still operational plastics factory in New Jersey, USA in a bid to greatly expand its operations and output. It financed the acquisition with loans from Capital Finance Partners Inc. (US$10,000,000) and two loans equivalent to US$5,000,000 each from Schneider Investment (a limited liability partnership registered in Germany) and Development Holdings (an investment company based in the UK).
The new factory was recommissioned and commenced production again in early 2006. Initially all went well such that in 2007 the factory reported a small operating profit with a healthy order book. However, by the end of 2008, the financial crash had resulted in a huge fall-off in orders in the last two quarters and the company reported a serious financial loss for that financial year.
Mr White and the other shareholders held a board meeting and discussed whether they should cut their losses and liquidate the company. All the shareholders apart from Mr White agreed that this should happen as soon as possible (even Mr White’s daughter). Mr White however, used his majority holding to defeat the motion as he believed he could convince a Chinese buyer who would buyer to buy the factory as a going concern. It transpired later that Mr White had in fact already commenced negotiation with the Chinese buyer without informing the board. Moreover, Mr White had seriously undervalued the New Jersey operation in order to sweeten the deal for the company. The Chinese buyer, after five months, pulled out of the deal by which time the New Jersey operation had losses amounting to $25,000,000.
Mr White then held another board meeting and informed the board of the failure of the Chinese deal. He also revealed that White Manufacturing itself was in financial trouble and, with the help of his daughter, persuaded the other shareholders to dissolve the company. Accordingly a certificate of cancellation was filed in Delaware terminating White Manufacturing’s existence.
It transpired however, that White Manufacturing was terminated with debts amounting to some $50,000,000 dollars, including the balance of the loans to Capital Finance Partners ($5,700,000 still owed), Schneider Investment and Development Holdings ($1,997,000 each). It also transpired that Mr White has engaged in capital transfers of funds (in the amount of $30,000,000 in total) to the two subsidiaries in the UK and Germany, with the connivance of the company’s accountants but without informing the board. As if that were not enough, there is evidence that Mr White had been using the assets of his foreign subsidiaries to finance the purchase of a villa in the Dordogne region of France, to fund (as tax-deductible ‘business trips’) family-and-friends excursions to the villa (by private jet; none of the friends seems ever to have had any business dealings with any of White’s companies) and to fund a lavish playboy lifestyle in the casinos of Monte Carlo.
Consider the possible approach in each of the three possible jurisdictions to the question of piercing the corporate veil to recover debts.
Guidance
1.
All the information required to deal with this case study can be gained from the guided reading provided on Moodle
2.
Remember that this is a comparative case study, so it is necessary not only to discuss the differing approaches to lifting the veil in each jurisdiction but also to analyse the changes of success
3.
The scenario, perforce, is not as detailed as a real case would be. Hence it is possible that you would require more information on specific aspects of the case study as part of the ‘discovery’ leading to litigation. It is perfectly acceptable (in fact expected) that you would highlight what this additional information might be, and, more importantly why it is legally important and how it would enhance your analysis of the possible outcomes.
4.
Assertions and conclusions must be justified by reference to the case law, legislation and governance instruments.
Assessment Criteria
1.
The extent to which the analysis demonstrates knowledge of the different approaches to piercing the corporate veil in each of the relevant jurisdictions
2.
The extent to which the justification for the different jurisdictional approaches is analysed
3.
The extent to which an understanding of the advantages and disadvantages of the different approaches is evident in the case study analysis
4.
The extent to which the analysis demonstrates command of the relevant regulatory environment and applicable case law in each jurisdiction
5.
The use of excellent structure and use of the English language in synthesising a concise and accurate analysis
Learning Outcomes
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