메인 주 대법원판결을 통해 본 회사기회이론의 적용범위 -Northeast Harbor Golf Club 사건에 관하여-

Corporate officers and directors bear a duty of loyalty to the corporations they serve. Despite the general acceptance of the proposition that corporate fiduciaries owe a duty of loyalty to their corporations, there has been much confusion about the specific extent of that duty when it is contended that a fiduciary takes for oneself a corporate opportunity. Northeast Harbor Golf Club in Maine brought an action against Nancy Harris, the former president of corporation operating golf club, alleging that she usurped an opportunity that belonged to the club when she purchased and developed properties adjoining club property. The trial court in this case found that the president of corporation had not usurped a corporate opportunity because the acquisition of real estate was not in the Cub's line of business. Moreover, it found that the corporation lacked the financial ability to purchase the real estate at issue. The court found that the president's development activities were generally compatible with the corporation's business. However, the Supreme Court in Maine followed the ALI test because it viewed the ALI test as an opportunity to bring some clarity to a murky area of the law. The ALI test defines "corporate opportunity" broadly. It includes opportunities "closely related to a business in which the corporation is engaged[ALI, Principles of Corporate Governance § 5.05(b)]. It also encompasses any opportunities that accrue to the fiduciary as a result of one's position within the corporation. As this concept is most clearly illustrated by the testimony of the broker for that property, the property was offered to the president especially in one's capacity as president of the corporation. Even if the opportunity to engage in a business activity, in which the officer or director of a corporation becomes involved, is not learned of through her connection to the business of the corporation, nevertheless, such an opportunity may be considered a corporate opportunity if the officer or director knows it is closely related to a business in which the corporation is engaged or expects to engage. If it reached that conclusion, then at least the opportunity to acquire that property would be a corporate opportunity. For purposes of usurpation claim against former president of golf club, the purchase of land surrounding the golf course was sufficiently related to the club's business to constitute a “corporate opportunity.” The central feature of the ALI test is the strict requirement of full disclosure prior to taking advantage of any corporate opportunity(id., § 5.05(a)(1). If the opportunity is not offered to the corporations, the director or senior executive may not satisfy § 5.05(a). The ALI test is discussed at length and ultimately applied by the Oregon Supreme Court in Klinicki v. Lundgren, 298 Or. 662, 695 P.2d 906 (1985). As Klinicki describes the test, “full disclosure to the appropriate body is ... an absolute condition precedent to the validity of any forthcoming rejection as well as to the availability to the director or principal senior executive of the defense of fairness”(id., at 920). A good faith but defective disclosure by the corporate officer may be ratified after the fact only by an affirmative vote of the disinterested directors or shareholders [ALI, Principles, § 5.05(d)].