INTRODUCTION
T1 In а public corporation, directors and officers owe the corporation and the shareholders collectively a duty to act in good faith and in the best interest of the corporation. In a partnership, each partner owes each of the other partners individually a duty to act with the utmost good faith. The appellant in this case, Samuel R. McLaughlin, a minority shareholder in a closely held corporation, asks this court to impose on shareholders in such corporations a duty to individual shareholders similar to the duty owed in a partnership. McLaughlin also asks us to reverse the district court's holding that waivers of a provision of this closely held corporation's shareholder agreement were valid, and reverse its order denying amendments to MeLaughlin's complaint. We hold that the appellee Greg Schenck, as a close corporation shareholder, owed McLaughlin individually a duty to act in the utmost good faith, but that he did not violate this duty because his actions did not thwart McLaughlin's reasonable expectations. Ad-we hold that waivers executed by the board and the shareholders of the corporation were contaminated by a conflict of interest, and we therefore remand for a determination of whether the waivers were fair. Finally, we hold that the district court did not abuse its discretion in denying McLaughlin's motion to amend by finding that the amendment would be futile.
BACKGROUND
T2 Because the trial court dismissed this case on summary judgment, "we review the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party," in this case, McLaughlin. GLFP, Ltd. v. CL Mgmt., Ltd.,
13 Cookietree, Inc. is a privately held Utah corporation that produces and retails baked goods. The company was formed in 1981, with Greg Schenck and his father, Boyd Schenck, among the original shareholders. Greg Schenck was named president at the corporation's founding. He currently holds the same position. In 1992, Greg Schenck recruited Sam McLaughlin to work as the operations leader for Cookietree. McLaughlin's previous experience at Pillsbury and Quaker Oats made him a valuable employee, and he was quickly promoted to vice president of operations and then chief operating officer and vice president of operations. As he invested more of his career in Cookietree, McLaughlin also invested his personal finances in the corporation by slowly purchasing increasing amounts of shares in the corporation.
T4 As part of his agreement to join Cook-ietree as an employee, McLaughlin and the company agreed to certain terms, which were memorialized in an employment agreement. This agreement guaranteed MceLaughlin a minimum salary that was supplemented with a bonus formula. It also provided him with the option of acquiring up to 200,000 shares of common stock in the company. Importantly, under the agreement, McLaughlin was an at-will employee. Thus, either party could terminate the employment relationshiр at any time so long as six-months notice was given.
T6 In 1998, the majority shareholder of Cookictree, Boyd Schenck, passed away. Just before his death he transferred 818,000 shares to Greg Schenck. 1 Following this transfer Greg Schenck owned around 49 percent of Cookietree, with Boyd Schenck retaining around ten percent (545,200) of the company's shares. After Boyd's death, Boyd's wife, Anna, 2 sold Greg Schenck 545,-200 shares, making Greg Schenck the majority shareholder, with about sixty-five percent of the company's stock. This transfer was not recorded in Cookietree's minutes or written records, and a right of first refusal was not provided to the corporation or the other shareholders. Stock certificates were nonetheless issued. At the time this transfer was made, it violated the 1991 Shareholder Agreement.
17 In 2003, Greg Schenck indicated that he was interested in selling Cookietree. MeLaughlin wanted to purchase the company and sent a letter of intent, which conveyed this interest to Cookietree and its president, Greg Schenck. McLaughlin, however, was never able to raise the full amount of the purchase price. During this period, Greg Schenck began discussions with another cookie company, Otis Spunkmeyer, which was interested as a strategic buyer in purchasing Cookietree.
8 At this point, the relationship between McLaughlin and Greg Schenck, which previously had been not only professional but also personal and social, began to deteriorate. McLaughlin would not agree to various terms of the Otis Spunkmeyer transaction, including consent to a noncompete agreement. About this same time, McLaughlin learned of the prior stock transfer between Anna Schenck and Greg Schenck. During the discussions with Otis Spunkmeyer, McLaughlin insisted on his right of first refusal for any sold and transferred stock. McLaughlin was thereafter excluded from executive meetings. McLaughlin alleges that after he asserted his right to a bonus on the asset sale of Cookietree to Otis Spunkmeyer, Greg Schenck and Otis Spunkmeyer officers negotiated to instead structure the sale as a stock sale. McLaughlin continued to demand his right of first refusal and requested documentation regarding Anna Schencelk's stock sale to Greg Schenck.
T9 On August 4, 2004, Harold Rosemann, board member and chief financial officer for Cookietree, instructed Kim McLaughlin, MeLaughlin's wife and also an employee of Cookietree, to tell McLaughlin to withdraw his claims or "there's going to be some organizational changes around here." On Au
110 In November 2004, McLaughlin sued Cookietree and Greg Schenck for breach of contract and breach of fiduciary duty based on Greg Schenek's stock acquisition. In March 2005, McLaughlin filed another suit against Cookietree and Greg Schenck for breach of contract and breach of fiduciary duty based on MeLaughlin's termination. McLaughlin also filed a derivative action. All three cases were then consolidated in the district court. The district court referred McLaughlin's claims relating to his employment contract to arbitration. McLaughlin was awarded damages for Cookietree's breach of an implied duty of good faith and fair dealing for paying the 1992 contract salary rate for McLaughlin's severance pay rather than his most recent salary and bonus rate. The arbitrator dismissed all other contract claims and deferred to the district court to resolve the breach of fiduciary duty claim relating to the termination.
{11 In May 2005 during an unnoticed meeting, Cookietree's board of directors-Greg Schenck; his wife, Gayle Schenck; and Harold Rosemann-ratified the 1999 stock transaction by waiving the corporation's right of refusal. Around the same time, Greg Schenck contacted Jerry Smekal, a Cookie-tree shareholder, and requested that he also sign a consent and waiver ratifying the 1999 transaction. Smekal, who held 529,000 shares, agreed to sign the form. Additionally, Greg Schenck and Harold Rosemann also signed the shareholder consent and waiver forms, representing 2,181,200 and 316,000 respectively, or nearly ninety percent, of Cook-ietree's shares.
Cookiectree moved to dismiss McLaughlin's claims on summary judgment. The district court granted the motion and dismissed all pending claims, finding that Greg Schenck did not owe any fiduciary duty to McLaughlin with respect to the "dealings related to McLaughlin in his role as an employee" and that Cookietree, not Greg Schenck, terminated McLaughlin from his employment. Additionally, with respect to the stock transaction, the district court found that "all of the actions taken by both Cookie-tree and Mr. Schenck were within the terms of the [1991 shareholder] agreement and, to the extent certain corporate actions were not undertaken at the time of the sale, the 2005 waiver and ratification actions were effective as a matter of law." With these findings, the district court held that it was "unable to identify any factual claim ... that would give rise to a claim for breach of fiduciary duty," and thus dismissed all claims, but left McLaughlin with the option to "come forward with facts and evidence that would support a breach of fiduciary duty claim that has not already been addressed." Shortly thereafter, McLaughlin moved for permission to amend his complaint by adding Gayle Schenck and Harold Rosemann as additional parties. The basis for his breach of fiduciary duty claims largely remained the same. The district court denied this motion holding that an amendment would be futile because McLaughlin failed to identify any evidence that was not addressed by the summary judgment. McLaughlin аppealed the district court's final order. We have jurisdiction pursuant to Utah Code section T78A-3-102(8)(j) (2008).
183 McLaughlin asks this court to review the district court's grant of summary judgment to the defendants on three grounds. First, McLaughlin asks the court to determine whether Cookietree shareholders owed McLaughlin fiduciary duties individually, and if so whether any such duty was violated. Second, McLaughlin requests that we review whether the board's and shareholders' 2005 ratifications were "valid and effective." Finally, McLaughlin argues the district court abused its discretion in denying McLaughlin's motion to amend his complaint.
14 Summary judgment "is appropriate only in the absence of any genuine issue of material fact and where the moving party is entitled to judgment as a matter of law." S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr.,
ANALYSIS
I. SHAREHOLDERS IN CLOSELY HELD CORPORATIONS OWE EACH OTHER ENHANCED FIDUCIARY DUTIES, BUT SCHENCK DID NOT VIOLATE ANY DUTY OWED TO MCLAUGHLIN
115 This case presents the question of whether shareholders of closely held corporations
3
-also commonly known as close corporations-should be treated differently than shareholders of publicly traded corporations when applying the provisions of the Utah Revised Business Corporation Act (the Corporation Act), Utah Code Ann. §§ 16-10a-101 to -1705 (2005 & Supp. 2008), and the accompanying interpretive and common law case law. We previously acknowledged that in close corporations it is "unlikely that there is a disinterested board," Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc.,
A. The Fiduciary Duty of Shareholders in Closely Held Corporations Is Similar to the Duty of Partners in a Partnership
116 Under the revised business code, directors and officers are required to carry out their corporate duties in good faith, with prudent care, and in the best interest of the corporation. Utah Code Ann. § 16-10a-840 (2005). These corporate duties have been interpreted to coincide with the common law understanding that officers and directors owe these duties to the corporation and shareholders collectively, not individually. Aurora
T 17 Whether to modify the fiduciary duty standard in closely held corporations is an issue of first impression for this court. Numerous other states have considered the question, and; we look to their analyses and to the Corporation Act's language and structure to guide our determination. See Arndt v. First Interstate Bank of Utah, N.A.,
{18 McLaughlin urges us to follow the partnership-like duty standard originally articulated by Massachusetts courts and subsequently adopted by several other states. Beginning with Donahue v. Rodd Electrotype Co. of New England,
{19 The defendants, however, urge this court to follow the minority position, which has been adopted by Delaware and Texas. The minority position narrowly construes the duties of shareholders in a closely held corporation and differentiates between a person's status as employee and shareholder. In Riblet Products Corp. v. Nagy, for example, the Delaware Supreme Court noted that Delaware had not adopted Massachusetts' approach to fiduciary duties, but instead imposed identical duties on shareholders of closely held corporations and public corporations.
20 Presented with two divergent approaches, we must assess which approach best suits Utah's corporate law scheme. Our Corporation Act does not provide explicit guidance, as it does not directly address close corporations or duties between shareholders. However, considering the Act as a whole and its specific provisions together, such as the duties imposed on directors and the dissolution remedy explicitly outlined, Utah Code Ann. §§ 16-102-840, ~1480(b), we believe it is apparent that the legislature intended to protect shareholders from oppression and misconduct by those in control. To construe the Act's provisions to require the same fidu-clary duties for publicly held and closely held corporate shareholders would not adequately prоtect close corporation shareholders. This is because the Model Business Code, on which the Utah Corporation Act was based, was developed largely in the context of publicly held corporations and the common law surrounding their governance. See Model Bus. Corp. Act Aun. Introduction (2009) ("[The Model Act does not generally distinguish between publicly held and privately held corporations." Additionally, the Model Act "was amended in 1990 and 2006" to provide greater certainty and more flexibility to non-public corporations.); See also F. Hodge O'Neal, Robert B. Thompson, & Blake Thompson, O'Neal & Thompson's Close Corporations and LLCs: Law and Practice § 9:21 (8d ed. 2004) ("Courts recognize that the usual default rules of corporate law affect close corporations differently from large publicly held Close corporations differ, however, in significant ways, and when these differences result in undesired outcomes, we have interpreted the Corporation Act in a way that achieves the intent and goal of the Act as a whole. This is a trend followed by many courts. See Melrose v. Capitol City Motor Lodge, Inc.,
121 As discussed in Angel Investors and Aurora, the form of closely held corporations subjects shareholders to distinct challenges in protecting their investment. These core characteristics, and other common elements, lead to what has been referred to as the close corporation trap. James M. Van Vliet, Jr. & Mark D. Snider, The Evolving Fiduciary Duty Solution for Shareholders Caught in a Closely Held Corporation Trap, 18 N. IIl. U.L.Rev. 239, 242 (1998); see also F. Hodge O'Neil, Robert B. Thompson, & Blake Thompson, O'Neal and Thompson's Close Corporations and LLCs: Law and Practice § 9:2 (3d ed. 2004) (noting that a close corporation shareholder "does not have a partner's power to dissolve the enterprise and get out" and similarly does not have the "exit option" of selling her shares in a securities market available to shareholders of publicly held corporations). Shareholders in close corporations lack a ready market for their shares. This means that closely held corporation shareholders have no liquidity in their shares, see Donahue,
[ 22 Without a market remedy, shareholders in close corporations are easily subjected to freeze outs, squeeze outs, and other forms of oppression, which the Corporation Act aims to prevent. Thus, the Massachusetts approach of recognizing broader fiduciary duties in closely held corporations better achieves the goals of the Act by stemming shareholder oppression and is the appropriate standard for evaluating fiduciary relationships among shareholders in a closely held corporation. Our adoption of the Massachusetts standard is a logical extension of оur existing case law regarding close corporations, which acknowledges the unique nature of such corporations and seeks to protect their shareholders by interpreting the Corporation Act with different corporate cireum-stances in mind. By adopting this broader fiduciary obligation for close corporation shareholders, alternative remedies exist for oppressed shareholders, 4 such as an equitable claim for dissolution or a claim for breach of fiduciary duty.
23 Having concluded that shareholders in closely held corporations owe their coshare-holders fiduciary obligations, we now consider whether the Defendants breached these duties in this case.
B. A Shareholder Violates His Duty of Utmost Good Faith When He Thwarts Another Shareholder's Reasonable Expectations of Benefits Derived From Ownership in the Corporation
$24 Breaches of the fiduciary duty owed by close corporation shareholders arise in several cireumstances, the facts of which commonly overlap. These cireumstances have been identified as unequal treatment, frustration of reasonable expectations of involvement, and a freezeout or squeezeout. James M. Van Vliet, Jr. & Mark D. Snider, The Evolving Fiduciary Duty Solution for Shareholders Caught in a Closely Held Corporation Trap, 18 N. Ill. U.L.Rev. 239, 252 (1998). In all cases there is a common element-a shareholder's investment expectation in a close corporation is frustrated by another shareholder's actions. Brodie v. Jordan,
26 Under this standard for fiduciary duty protection, the termination of an employee is not always a breach of fiduciary duty. See Merola v. Exergen Corp.,
"Not every discharge of an at-will employee of a close corporation who happens to own stock in the corporation gives rise to a successful breach of fiduciary duty claim." Id. at 355. Instead, the court must consider the formal policies and practices of the close corporation, and how these policies and practices are interpreted by and impact all shareholders to determine whether or not a shareholder's reasonable expectations were thwarted. As the North Dakota Supreme Court has explained, when considering an allegation of oppressive conduct, a court should review
what the majority shareholders knew, or should have known, to be the petitioner's expectations in entering the particular enterprise. Majority conduct should not be deemed oppressive simply because the petitioner's subjective hopes and desires in joining the venture are not fulfilled. Disappointment alone should not necessarily be equated with oppression.
Balvik v. Sylvester,
129 McLaughlin also argues that Rosemann and Schenck breached the fiduciary duty they owed to McLaughlin by transferring and later ratifying the stock transaction between Anna Schenck and Greg Schenck. This allegation is dependent, however, on McLaughlin's claim that the transfer was unlawful; all stock transactions promote the parties' interests, and therefore only breach a duty when they are accomplished in an unfair or unlawful manner. Therefore, we nеxt consider whether the stock transaction violated Cookietree's corporate charter or the Corporation Act.
IIL THE SCHENCK TRANSACTION DID NOT VIOLATE THE CORPORATE CHARTER OR THE CORPORATION ACT, BUT THE WAIVERS WERE TAINTED BY A CONFLICT OF INTEREST
130 The 1991 and 1999 shareholder agreements limit the transfer of shares by imposing first rights of refusal on any share transfer. If a shareholder wishes to sell or otherwise transfer his shares, the shareholder must first offer Cookietree the opportunity to purchase the shares. If Cookietree declines to purchase the stock, then the corporation's shareholders have a right to purchase a portion of the offered shares equal to the percentage of the company's shares they already own. Under the agreements, "[alny sale or transfer ... shall be null and void unless the terms, conditions, and provisions of this Agreement are strictly observed and followed." The limitation on share transfers may be waived by a "duly authorized action of [Cookietree's] Board of Directors, or by the Shareholders, upon the express written consent of the owners of at least two-thirds of the Shares ... (excluding those Shares owned by the selling shareholder)."
T31 The transfer of shares from Anna Schenck to Greg Schenck did not conform to the first right of refusal provision; therefore it was void unless the waivers by the Board and three of Cookietree's shareholders were valid. McLaughlin argues that the ratification of the Schenck transaction was invalid because the waivers were based on an expired Shareholder Agreement, were untimely, violated Cookietree's bylaws, and, in the case of the Board waiver, was a conflicting interest transaction under the Corporation
132 First, the stock transaction between Anna and Greg Schenck is subject to the 1991 Sharеholder Agreement. Mclaughlin argues that the waivers were invalid because the initial transaction occurred when the 1991 Shareholder Agreement was in effect but the waiver occurred after the Agreement was superseded by the 1999 Agreement. Where there was no lapse between the two agreements, there was no such contractual no-mans land. The share transfer and waiver were part of the same transaction and are governed by either the 1991 Agreement or the 1999 Agreement, both of which provide for a waiver of the agreement's limitations on share transfers. In this case, the transaction occurred in August 1999 and the 1999 Shareholder Agreement became effective in November 1999. Therefore, the 1991 Agreement is the controlling document. Whether the waiver was invalid because it was acquired so long after the share transfer is an issue of timeliness, not authority.
33 Pursuant to the Corporation Act, the waiver was timely. McLaughlin argues the waivers, obtained over six years after the stock transfer, сould not have been timely as a matter of law, and therefore the issue should have been submitted to a jury. McLaughlin is correct that whether or not ratification actually occurred is a question of fact. However, he fails to cite any disputed issues of fact that would have prevented the district court from determining the question as a matter of law on summary judgment. There is no dispute that the waivers were obtained, nor is there a challenge to the date of the waivers or the involved parties. Under the Corporation Act, the waivers are effective as of the date indicated by the board of directors in the waiver and consent. Utah Code Ann. § 16-10a-821(2); see also 2A William Meade Fletcher, Cyclopedia of the Law of Private Corporations § 82 (rev. ed 2009). McLaughlin relies on agency law to argue that the Board should not be allowed to execute the waiver and consent after so much time had elapsed because it would be unfair and disadvantageous to him. To persuade this court to adopt such an equitable principle, McLaughlin must present a developed common law principle or a strong policy reason to support its adoption. He has not argued either. Therefore, we rely on the plain language of the Corporation Act, which allows the board to act retroactively by assigning ex post-facto effective dates to their actions. As presented to the district court, McLaughlin did not present any disputed fact that would foreclose the district court from determining as a matter of law that the waivers were timely.
134 Additionally, the waivers did not violate Cookietree's bylaws. MeLaughlin argues the shareholder waiver violated Cook-ietree's bylaws because the shareholders signed the waivers without a noticed shareholder meeting, and that an action taken without a meeting must be signed by all the shareholders entitled to vote, whereas he and his wife were not asked to sign. The shareholder waiver, however, is governed by the 1991 Shareholdеr Agreement, which does not require the votes of all shareholders entitled to vote, but instead only two-thirds of the shareholders. While this may conflict with the bylaws, the Corporation Act allows a corporation to enter a separate shareholder agreement that governs the management and affairs of the corporation and the relationships among the shareholders despite a conflict with the bylaws so long as it does not violate public policy. Utah Code Ann. § 16-102-782. Therefore, because the shareholder agreement allowed two-thirds of Cookie-tree's shareholders to waive provisions of the shareholder agreement without a shareholder meeting, the waivers did not violate Cook-ietree's bylaws.
135 Turning to the Corporation Act, we hold the waivers were not statutory conflict of interest transactions within its terms. McLaughlin argues the waivers were conflict of interest transactions because each
986 This conclusion, however, does not end our analysis. "Many situations arise in which a director's [or shareholder's] personal economic interest is or may be adverse to the economic interest of the corporation, but which do not entail a 'transaction' by or with the corporation." Id. These situations are no less concerning because on the surface they appear to suffer from the same lack of probity and fair dealing as statutory conflict of interest transactions. The law does not ignore such troubling circumstances, but instead leaves the treatment of such situations "for development under the common law." Id. The Model Act suggests the procedures designed to deal with statutory conflicts of interest provide a useful strategy for dealing with such situations as a matter of common law. Id. We agree. 6
T37 The procedures provided in the conflict of interest statute most appropriately address nontransaction-related conflict situations because they do not automatically invalidate conflict of interest transactions but instead require the party with a conflict to show the transaction was fair, or require the vote of disinterested board members or disinterested shareholders to ratify the transaction. Utah Code Aun. § 16-10a-851 (2005). In adopting these procedures for nontransaction-related conflicts, we recognize that many aspects of corporate governance are unfair. However, as close corporation case law repeatedly notes, close corporations are ripe for abuse and oppression of minority shareholders, especially when majority shareholders are commonly both directors and board members. The conflict of interest statute protects against such abuse, but still preserves the ability of close corporations to operate by not invalidating every transaction with a conflict of interest.
T38 Applying this standard, we conclude the waivers ratifying the 1999 share transfer were tainted by a conflict of interest because they were both executed by Greg Schenck, who clearly had an economic interest in waiving the share transfer restrictions of the shareholder agreement that were ignored when he received the shares by which he gained majority control of Cookietree. By waiving the restrictions on the share transfers, Schenck and the other board members and voting shareholders deprived the company and the nonvoting shareholders of the economic opportunity to increase their investment in the corporation. Corporate law is wary of such self-dealing. Cookietree's shareholder agreement also was wary of such activities and exeluded sellers from voting on waiving the restrictions on share transfers. The agreement failed, however, to foresee the possible conflicts presented when a buyer is already a corporate shareholder and votes to waive the restrictions on share transfers. We therefore remand for a determination of whether the waivеrs were fair within the meaning of Utah Code section 16-10a-851, which is a fact-intensive inquiry focusing on whether the waivers were beneficial to the corporation and the shareholders and whether they satisfied the standard of fair dealing. See Model Bus. Corp. Act Ann. ch. 8-F, § 8.60.
139 In its Ruling and Order, the district court did not dismiss McLaughlin's fiduciary duty claim but rejected the grounds on which he pled the claim, leaving open the opportunity to amend the complaint so long as he met the burden of alleging new facts and evidence that would support a claim of breach of fiduciary duty that had not already been addressed by the court. When McLaughlin submitted an amended complaint that added two additional parties but relied on largely the same facts, the district court denied this motion.
140 When considering a motion to amend, the district court should primarily consider whether the motion would cause unavoidable prejudice to the opposing party. Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc.,
141 McLaughlin argues the district court had only ruled on fiduciary duties arising out of existing contracts and that his amended complaint raised tort-based theories of fidu-clary duties. This is an inaccurate characterization of the district court's determination and, moreover, a distinction without a difference. Regardless of how McLaughlin phrases his claims, they are the same theory: Cookietree shareholders breached their fidu-clary duty to Mclaughlin by waiving the right of refusal for the 1999 stock transaction and by terminating his employment. Whether this theory is characterized as arising out of contract or tort, it is the same theory-a tort for breach of duty. Thus, we hold the district court did not abuse its discretion because McLaughlin's amendment failed to state new facts or a new theory that had not already been addressed by the court; an amendment would have been futile.
CONCLUSION
142 We agree with McLaughlin that shareholders in close corporations stand in fiduciary positions to one another and are required to act with the utmost good faith. However, we also note this duty is not unlimited but instead must be balanced with the legitimate business interest of the corporation and the reasonable expectations of individual shareholders. In this case, however, we hold that McLaughlin's reasonable expectations were not thwarted when he was terminated from Cookietree, and therefore, the defendants did not breach any fiduciary duties owed him. The district court's decision on this issue is affirmed. Additionally, we affirm the district court's decision to deny McLaughlin's attempt to amend his complaint to add additional parties as futile because he could not prove his legal theory by adding individuals to the litigation. Finally, we conclude that the waivers ratifying the 1999 share transfer were contaminated by a conflict of interest and remand for a determination of whether the waivers were fair.
Notes
. This transaction was not subject to the right of refusal provisions of the shareholder agreement because it was a transfer between immediate family members, which was allowed under the 1991 Shareholder Agreement.
. The parties disagree on whether Boyd's estate or Anna transferred the shares to Greg Schenck. The district court indicated in its order that Anna transferred the shares to Greg Schenck. We rely on this implicit factual finding.
. In Utah, we consider a closely held corporation to be a company in which there is " '(1) a small number of shareholders; (2) no ready market for corporate stoсk; and (3) active shareholder participation in the business.'" Angel Investors, LLC v. Garrity,
. At the time Donahue was decided, Massachusetts did not have a statutory remedy for oppression. Many of the states that have followed suit have enacted minority oppression statutory remedies-usually dissolution-but allow distinct actions for breaches of the Donahue duties. See eg., Walta v. Gallegos Law Firm, P.C.,
. The district court found that Cookietree, not Schenck, tеrminated McLaughlin's employment, and therefore, Schenck was not liable for any damages caused by terminating McLaughlin. This was incorrect. Schenck terminated McLaughlin as the president of Cookietree and is liable if in doing so he breached a fiduciary duty, including his duty to discharge both his "management and stockholder responsibilities in conformity with this strict good faith standard." Wilkes,
. The statutory conflict of interest provisions address the same concerns presented by nontran-saction conflicts of interest. Nontransaction conflicts of interest, however, are much less common in publicly held corporations and therefore because the Corporation Act was drafted in the context of such corporations, see supra 120, it fails to address such situations.