Opinion
Criminal Action NO: 99-210 SECTION: "R" (3).
April 19, 2000.
ORDER AND REASONS
The Government moves the Court to hold a hearing to determine whether Brigette Piattoly properly represents the corporate defendant in this case, American Rose Discount and Wholesale, Inc. Piattoly asserts that she was retained to represent American Rose Discount by its President and Director, Phong Le.
Piattoly first appeared on behalf of American Rose Discount at the corporation's arraignment on February 23, 2000. At that time, Magistrate Judge Lance M. Africk ordered American Rose Discount to file a corporate resolution into the record by February 25, 2000. On March 2, 2000, Piattoly filed a "Corporate Resolution and Ratification" which stated that American Rose Discount had retained Piattoly to represent it in this case. The resolution was dated March 1, 2000 and signed by defendant Nhu Nguyen as President and Secretary of American Rose Discount. ( See Govt.'s Mot. Determine Proper Rep. Corp. Def. Ex. 4.) The record in this case is not clear as to who, in fact, was the President of American Rose Discount on March 1, 2000, the date of the resolution retaining Piattoly. Various documents in the record indicate that the President of the corporation at that time could have been any one of three individuals: Nguyen, Phong Le, or Thai Chau.
Although the Court cannot determine who had the actual authority to retain Piattoly on March 1, 2000, the Court notes that a corporation may expressly or impliedly ratify the unauthorized acts of a corporate officer under Louisiana law. See Graves v. Concordia Elec. Coop., Inc., 929 F. Supp. 983, 986 (W.D. La. 1996); Kemna v. Warren, 514 So.2d 237, 238-39 (La.App. 5th Cir. 1987) ( citing Acadian Prod. Corp. of La. v. Savanna Corp., 63 So.2d 141 (1953)) (additional citations omitted). Any actions ratified by the corporation are given retroactive effect. See Kemna, 514 So.2d at 239. Accordingly, if the present and duly elected officers of American Rose Discount ratify Piattoly's representation of the corporation since February 23, 2000, the contract of representation will be upheld.
In its opposition to the Government's motion, American Rose Discount has introduced a document entitled "Minutes of Meeting and Corporate Resolution" which indicates that, on March 21, 2000, all officers of the corporation's board of directors unanimously accepted Nguyen's resignation as Director and unanimously elected her son, Phong Le, as Director, President, and Vice-President. ( See American Rose Discount Response Ex. 6.) In the absence of articles or bylaws to the contrary, La. Rev. Stat. Ann. § 12:81(C) governs the manner of election of corporate boards of directors. The statute provides that "[t]he remaining directors . . . may, by a majority vote, fill any vacancy on the board . . . for an unexpired term, provided that the shareholders shall have the right, at any special meeting called for the purpose prior to such action by the board, to fill the vacancy." La. Rev. Stat. Ann. § 12:81(C)(3). There is no indication that the bylaws or articles of American Rose Discount prescribed an alternate manner of electing corporate officers, nor that the corporation's shareholders exercised their right to call a special meeting as described in the statute. It thus appears that Phong Le was properly elected, and is presently, the Director and President of American Rose Discount. Nevertheless, the Court notes that the Louisiana Secretary of State continues to list Nguyen as American Rose Discount's President.
Given the confusion in the record, the Court orders American Rose Discount to file an affidavit identifying its current officers. The Court further orders American Rose Discount to explain why the Louisiana Secretary of State still lists Nguyen as its President. Finally, the Court denies the Government's motion for a hearing and instead orders American Rose Discount to file a corporate resolution signed by all of its directors pursuant to La. Rev. Stat. Ann. § 12:81(C)(9). ratifying the corporation's retention of Piattoly as legal counsel in this case. This resolution shall be filed with the Court no later than Wednesday, April 26, 2000.