BANKING AND FINANCIAL INSTITUTIONS
06-2-6625 Seidman v. Spencer Savings Bank SLA, App. Div. (per curiam) (42 pp.) In this latest appeal arising out of a fight for control of Spencer Savings Bank, a New Jersey thrift institution, plaintiff and defendants both appeal from the decision that invalidated the bank’s revised by-law imposing a threshold of 15% of its “members” for nominating a candidate to the board of directors and replaced it with the 10% threshold contained in a former version of the by-law that had preceded the parties’ litigation. The parties also filed cross-appeals of the dismissal of claims and counterclaims of breach of fiduciary duty and the award of partial counsel fees to plaintiff. The panel noted that Seidman 3 clearly upheld the determination of the Commissioner of Banking and Insurance that a numerical threshold could be properly imposed under the Savings and Loan Act and that was the law of the case. Further, it found that while the record substantiated that defendants’ concern over the loss of mutuality was genuine and reasonable, they failed to present a sufficient reasonable justification for the adoption of the 15% barrier and the remedy selected by the Chancery Division judge was well within her equitable authority, had a sound basis, and was appropriate. The panel also found that the trial court did not err in retaining the second paragraph of revised By-Law 31, which included the “one-mailing” procedure, as the provision was not challenged in plaintiff’s complaint or amended complaint. Nor did the court err in finding that plaintiff had not breached any fiduciary duties in bringing the derivative action. The panel remanded the award of $58, 422.63 in attorney fees to plaintiff because her actual calculation of fees did not comport with her stated purpose to award fees solely for the time spent by plaintiff’s counsel in connection with the N.J.R.E. 104 hearing, not the entire trial.
