- 100 -
been actionable by the stockholders of Empak, which, as of March
7, 1997, were: (1) WCB Holdings, a 90-percent stockholder whose
class A governance unitholders, other than decedent,10 owned in
the aggregate on and after March 15, 1997, a majority of the
voting class A governance membership units in WCB Holdings; (2)
Marubeni Corp. (MC), a 6-percent stockholder and a Japanese
trading entity which had more than 700 subsidiaries and whose
stock was listed on various international stock exchanges; and
(3) Marubeni America Corp., a 4-percent stockholder and the U.S.
sales and marketing subsidiary of MC. Cf. United States v.
Byrum, 408 U.S. at 137-143. Thus, any ability of decedent to
cause Empak to redeem the Empak stock owned by WCB Holdings was
not unconstrained. Instead, any such ability was subject to the
fiduciary duties imposed upon decedent as Empak’s CEO and the
sole member of its board of directors and to business and
economic realities and variables over which he had little or no
control and which he could ignore, but only at his peril. Cf.
id.
The majority opinion’s rationale contains other factual
flaws. According to that rationale,
decedent controlled whether BFLP could transform its
sole asset, the class B WCB Holdings membership units,
10On and after Mar. 15, 1997, the class A governance
unitholders of WCB Holdings, other than decedent, were the ISA
Trust, the Children’s Trust, the Grandchildren’s Trust, and the
QTIP Trust.
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