" Woolf, 1992 OK CIV APP 129 at ¶ 7, 849 P.2d at 1095. ¶ 21 Therefore, while the Appellees argue that Oklahoma law is the only relevant law in determining these issues, in the absence of Oklahoma authority we may consult decisions from the courts of Delaware and other jurisdictions concerning derivative actions. See Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 12, 792 P.2d 50, 54 (relying on Colorado and federal case law to find that the demand futility rule applies to derivative actions prosecuted pursuant to Oklahoma law); Warren v. Century Bankcorporation, Inc., 1987 OK 14, ¶ 8, 741 P.2d 846, 849 (adopting the intrinsic fairness aspect of the business judgment rule in Delaware law as "consistent with Oklahoma's extant jurisprudence"). ¶ 22 As relevant to the derivative claim, Beard's pleadings meet the verification requirement in 12 O.S.2001 § 2023.1 and the stock ownership requirement of 18 O.S. 2001 § 1126[ 18-1126].
" Woolf, 1992 OK CIV APP 129 at ¶ 7, 849 P.2d at 1095. ¶ 21 Therefore, while the Appellees argue that Oklahoma law is the only relevant law in determining these issues, in the absence of Oklahoma authority we may consult decisions from the courts of Delaware and other jurisdictions concerning derivative actions. See Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 12, 792 P.2d 50, 54 (relying on Colorado and federal case law to find that the demand futility rule applies to derivative actions prosecuted pursuant to Oklahoma law); Warren v. Century Bankcorporation, Inc., 1987 OK 14, ¶ 8, 741 P.2d 846, 849 (adopting the intrinsic fairness aspect of the business judgment rule in Delaware law as "consistent with Oklahoma's extant jurisprudence"). ¶ 22 As relevant to the derivative claim, Beard's pleadings meet the verification requirement in 18 O.S.2001 § 2023.1 and the stock ownership requirement of 18 O.S.2001 § 1126.
Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984) overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del. 2000). See Warren v. Cent. Bankcorporation, Inc., 1987 OK 14, ¶¶ 6-7, 741 P.2d 846; Beard v. Love, 2007 OK CIV APP 118, ¶¶ 28-29, 173 P.3d 796. ¶6 On June 20, 2013, the plaintiffs in this case filed a motion to lift the stay.
Aronson v. Lewis , 473 A.2d 805, 814 (Del. 1984)overruled on other grounds by Brehm v. Eisner , 746 A.2d 244 (Del. 2000).See Warren v. Cent. Bankcorporation, Inc. , 1987 OK 14, ¶¶ 6-7, 741 P.2d 846 ; Beard v. Love , 2007 OK CIV APP 118, ¶¶ 28-29, 173 P.3d 796.¶6 On June 20, 2013, the plaintiffs in this case filed a motion to lift the stay.
See, e.g., Miller v. Miller, 956 P.2d 887, 905 n. 70 (Okla. 1998) (citing Restatement of Restitution § 72); Stites v. DUIT Const. Co., Inc., 903 P.2d 293, 301 n. 28 (Okla. 1995) (citing Restatement of Restitution § 1); Warren v. Century Bankcorporation, Inc., 741 P.2d 846, 852, n. 18, n. 20, n. 21, n. 27 (Okla. 1987) (citing multiple sections of Restatement of Restitution); see also Van Zanen, 522 F.3d at 1132 (predicting that Colorado would follow tentative draft of Restatement of Restitution and Unjust Enrichment given that "Colorado courts have repeatedly relied on the previous version of the Restatement of Restitution").
Defendants try to counter the vested rights argument by attempting to demonstrate that gross negligence, not negligence, would normally be the standard in any action against bank directors and officers. They point to the "business judgment rule," discussed by the Oklahoma Supreme Court in Warren v. Century Bankcorporation, Inc., 741 P.2d 846 (Okla. 1987), as setting a gross negligence standard. Defendants assert this presumably because they would like to use the business judgment rule as a defense in this action.
Disgorgement is a restitutionary remedy or remedy for restitution. See Warren v. Century Bankcorporation, Inc., 741 P.2d 846, 852 (Okla. 1987). See also Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 1839, 95 L.Ed.2d 365, 377 (1987).
Acting in good faith and using poor business judgment are not mutually exclusive.See Hargrave v. Canadian Valley Elec. Co-op., Inc., 1990 OK 43, ¶ 24, 792 P.2d 50, 57, (the business judgment rule shields a director or trustee from liability in the case of an honest error in judgment); Warren v. Century Bankcorporation, Inc., 1987 OK 14, n. 5, 741 P.2d 846, 849, (directors and officers of a corporation will not be shielded from liability by the business judgment rule when they engage in acts of self-dealing or conflict of interest). ¶ 34 Martin sought to amend her petition to add allegations that the two employees of the school district tortiously interfered with her teaching contract.
Board deemed it advisable to negotiate a new five-year contract with McClendon with incentives to dissuade him from leaving the company in a time of economic uncertainty, but McClendon had committed substantial personal assets to prop up the value of his company's stock, and, in the exercise of its presumed-correct “business judgment,” Board elected to repay McClendon for his financial aid to the company. See also, Warren v. Century Bankcorporation, Inc., 1987 OK 14, ¶ 7, 741 P.2d 846, 849, fn. 5. Inasmuch as there are other factors which impact the fairness, adequacy and reasonableness of a settlement, we are unwilling to hold the size of the settlement in relation to the size of the compensation package establishes that the settlement was not fairly and honestly negotiated. “The business judgment rule is a presumption that a rational business decision of the officers or directors of a corporation is proper unless there exist facts which remove the decision from the protection of the rule—such as self-dealing and conflict of interest.”
Board deemed it advisable to negotiate a new five-year contract with McClendon with incentives to dissuade him from leaving the company in a time of economic uncertainty, but McClendon had committed substantial personal assets to prop up the value of his company's stock, and, in the exercise of its presumed-correct "business judgment," Board elected to repay McClendon for his financial aid to the company. See also, Warren v. Century Bankcorporation, Inc., 1987 OK 14, ¶7, 741 P.2d 846, 849, fn. 5. Inasmuch as there are other factors which impact the fairness, adequacy and reasonableness of a settlement, we are unwilling to hold the size of the settlement in relation to the size of the compensation package establishes that the settlement was not fairly and honestly negotiated. "The business judgment rule is a presumption that a rational business decision of the officers or directors of a corporation is proper unless there exist facts which remove the decision from the protection of the rule - such as self-dealing and conflict of interest."