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Moore v. MacQuarie Infrastructure Real Assets

Court of Appeals of Louisiana, Third Circuit

December 13, 2017

HELEN MOORE, ET AL.
v.
MACQUARIE INFRASTRUCTURE REAL ASSETS, ET AL.

         APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 251, 417 CONSOLIDATED WITH 251, 456; 251, 515; 252, 456; 252, 458; AND 252, 459 HONORABLE PATRICIA KOCH, DISTRICT JUDGE

          Jerold Edward Knoll, Sr., Edmond H. Knoll, The Knoll Law Firm, COUNSEL FOR PLAINTIFFS/APPELLANTS: L. E. L'Herisson, Helen Moore, Calvin I. Trahan

          Andrew A. Lemmon, Attorney at Law, COUNSEL FOR PLAINTIFFS/APPELLANTS: L. E. L'Herisson, Helen Moore.

          Paul Marett Brannon Attorney at Law COUNSEL FOR INTERVENORS/APPELLEES: William H. Seely Charles L. McNeely

          Lewis Kahn, Michael J. Palestina, Kahn Swick & Foti, LLC, COUNSEL FOR PLAINTIFF/APPELLANT: Calvin I. Trahan.

          W. Raley Alford, III, Jennifer L. Thornton, Eva J Dossier, Stanley, Reuter, Ross, Thornton & Alford, L.L.C., COUNSEL FOR DEFENDANTS/APPELLEES: Cleco Corporation, Elton R. King, William L. Marks. Shelley Stewart, Jr., Bruce Williamson, William H. Walker, Jr., Peter M. Scott, III, Logan W. Kruger, Vicky A. Bailey, Darren J. Olagues

          Edward J. Fuhr, Eric J. Feiler, Johnathon E. Schronce, Hunton & Williams LLP, COUNSEL FOR DEFENDANTS/APPELLEES: William H. Walker, Jr., Peter M. Scott, III, William L. Marks, Shelley Stewart, Jr., Vicky A. Bailey, Logan W. Kruger, Elton R. King, Bruce Williamson, Darren J. Olagues

         James P. Gillespie, Matthew E. Papex, Kirkland & Ellis LLP, 655 Fifteenth St., N.W., COUNSEL FOR DEFENDANTS/APPELLEES: Cleco Partners L.P. (f.k.a. Como 1 L.P.) Como 3, Inc.

          Sebastiano Tornatore, Shannon L. Hopkins, Attorney at Law, COUNSEL FOR INTERVENORS/APPELLEES: William H. Seely, Charles L. McNeely.

          Court composed of John D. Saunders, Billy H. Ezell, and Phyllis M. Keaty, Judges.

          JOHN D. SAUNDERS JUDGE

         This matter arises out of a suit regarding a corporate buyout/merger. Plaintiffs, shareholders in the corporation, filed suit against Defendants, including the board of directors of the corporation and the corporation's Chief Executive Officer, to enjoin the sale of the corporation. Plaintiffs allege, inter alia, that the Chief Executive Officer engaged in self-dealing, acted in bad faith, and breached his fiduciary duty of loyalty, good faith, and fair dealing, to the shareholders, when he misled the board of directors to induce them to push through the sale/merger of the corporation at an unfair price.

         Plaintiffs filed an action against Defendants in which they sought injunctive relief to enjoin the sale/merger of the corporation. Defendants filed exceptions, including, but not limited to, those of no right of action and no cause of action. After the injunctive relief was denied, the sale/merger was completed. Thereafter, the trial court sustained Defendants' exceptions of no right of action and no cause of action and denied Plaintiffs' request for injunctive relief. Plaintiffs appeal the trial court's ruling dismissing their claims.

         FACTS AND PROCEDURAL HISTORY:

         Plaintiffs, Helen Moore, Calvin I. Trahan, and Lawrence E. L'Herisson ("Plaintiffs"), shareholders in Cleco Corporation ("Cleco"), initiated a class action suit against a multitude of defendants: Bruce Williamson, Cleco's Chief Executive Officer; Cleco's Board of Directors: William H. Walker, Jr., Elton R. King, William L. Marks, Logan W. Kruger, Peter M. Scott, III, Shelley Stewart, Jr., and Vicky A. Bailey; Darren J. Olagues, President of Cleco Power; Como 1 L.P.; and Como 3 Inc. (collectively "Defendants"), in the Ninth Judicial District Court, to recover damages personally sustained by them as a result of the sale/merger of Cleco. In response, Defendants filed peremptory exceptions of no cause of action and no right of action to Plaintiffs' class action petition.

         During the pendency of this action, hearings were held before the Louisiana Public Service Commission ("LPSC") with the LPSC eventually voting to approve the sale/merger of Cleco. By joint motion, the temporary restraining order Plaintiffs had obtained in an attempt to enjoin the sale of Cleco was dissolved. By agreement, Plaintiffs amended their petition to include a direct cause of action against Defendants. In the interim, the sale/merger of Cleco was perfected.

         After oral arguments were presented to the court, the trial court sustained Defendants' peremptory exceptions of no cause of action and no right of action. Plaintiffs timely filed a motion for devolutive appeal. Pursuant to that motion, Plaintiffs are presently before this court alleging three assignments of error. ASSIGNMENTS OF ERROR:

1. The District Court erred by granting Appellees' exceptions of both no right and no cause of action when the reasons for its ruling only concerned whether Appellants have the right to bring their asserted claims.
2. The District Court erred by finding that Appellants' claims were derivative in nature even though they sought to remedy damages personally sustained rather ...

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