There are many ways that an owner of a closely held business can use their superior financial resources to gain an advantage over their co-owners in a dispute. One common way is the use of a capital call provision to dilute the interest of minority owners or to create off-setting claims against them. “Weaponizing” capital call and dilution provisions can be an effective sharp elbow tactic in business divorce situations, but practitioners should be wary of the risks that come with it.

Weaponized capital calls are typical in situations where there are claims of shareholder oppression and where there is a significant disparity in financial resources between owners. Such a strategy usually is in response to a claim by a minority owner that the majority owner has breached their fiduciary duty to the minority owner, the company or both. Faced with the prospect of litigation from the minority owner, the majority owner causes the company to exercise a right provided in the entity’s governing documents to demand that each of the owners contribute additional capital to the company. In initiating the capital call, it is the expectation of the majority member that the minority member will have insufficient financial resources to make the necessary capital contribution within the time specified in the operative documents. Failure to make a timely contribution could result in dilution of the minority’s interest, trigger a mandatory sale of their interest to the majority or, minimally, create a counterclaim against the minority owner that would act as a setoff against any amounts that might be awarded to the minority owner.