The Scope Of Stockholder Inspection In California And Delaware
Don’t peek at the statute, and answer the following question:
A stockholder of a Delaware corporation has a statutory right to inspect a corporation’s (a) books of account; (b) accounting books and records; or (c) other books and records.
If you answered “a”, you would be correct under former Section 3003 of California’s former General Corporation Law. If you answered “b”, you would be correct under Section 1601 of California’s current corporation law. The correct answer under Section 220 of the Delaware General Corporation Law is “c”.
New technologies have birthed new questions about the scope of inspection rights. Thus, many practitioners took special note of Vice Chancellor Travis Laster’s recent ruling in Amalgamated Bank v. Yahoo! Inc., 132 A.3d 752 (2016). In a lengthy opinion, he determined that a stockholder’s right to inspect a corporation’s “other books and records” was not limited to physical documents and included documents stored electronically. Thus, stockholders could inspect director and officer emails if they are essential and sufficient to satisfy the stockholder’s proper purpose of inspection. Although many law firms published alerts concerning this case, few seemed to have noticed that the Delaware Supreme Court stayed the Vice Chancellor’s order pending Yahoo’s appeal. Yahoo! Inc. v. Amalgamated Bank, 2016 Del. LEXIS 287 (Del. Apr. 14, 2016).
Would the same be true in California? As noted above, the current California statute refers to the accounting books and records. The change from “books of account” was made in response to the following suggestion of the Los Angeles County Bar Association:
We also recommend that some consideration be given to changing the description of the accounting records that may be inspected by a shareholder. We are advised that the phrase “books of account”, which appears in this Section, does not have a generally accepted definition in either legal or accounting circles. Perhaps the phrase “accounting books and records” should be substituted for “books of account” in line 5 of page 110 of the Bill.
Memorandum to Members of the Executive Committee of the Section on Business and Corporation Law of the Los Angeles County Bar Association from Alan J. Barton, Charles E. Stimson, Jr., and Richard E. Sobelle (Jan. 7, 1975). Professor Harold Marsh, Jr., the late doyen of California corporate law, noted the limited scope of the statute:
It is clear from this provision that the Legislature did not intend to permit a shareholder to inspect, for example, the contract files or property files of the corporation or any files other than the accounting records.
2 Marsh’s California Corporation Law, § 15.09[B].
Whatever “accounting books and records” may encompass, it is clearly narrower that the scope of records that a director is entitled to inspect. California Corporations Code Section 1602 authorizes a director to inspect “all books, records and documents of every kind”.