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Legal Updates for PE and VC Funds

BY Joseph Bartlett
September 03, 2003

VC Appointed Directors

A recent decision in a case (in which I was personally involved) has been handed down by a bankruptcy judge in the Northern District of Illinois (Eastern Division) in Telesphere Liquidating Trust, vs. Galesi. The decision turned out to be a resounding victory for Galesi, who had been a director of Telesphere Communications, Inc., and was the defendant in the instant action on the theory that he was the “controlling shareholder” of Telesphere and, therefore, owed a fiduciary duty to various parties. To prove Galesi's control, the plaintiff argued that Galesi dominated the board. I had been counsel to Galesi when he invested in Telesphere and was appointed to the board of directors in connection with his investment pursuant to a contractual right he bargained for. To illustrate the point of this article, I quote from two passages of the Judge's opinion:

“At the time he agreed to serve as a director of Telesphere, Bartlett required Galesi to enter into an agreement providing that in the event of an unresolved conflict between Bartlett's fiduciary duties to Telesphere and its shareholders on the one hand, and his fiduciary duty to Galesi on the other, Bartlett would resign from the board.

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