Some statutes are so poorly drafted that one hardly knows where to begin.  One such statute is Section 711 of the California Corporations Code.  According to the legislature, the purpose of the statute is “to serve the public interest by ensuring that voting records are maintained and disclosed as provided in this section [Section 711]”.  The problem is with “as provided in this section”.

Section 711(d) imposes an obligation on a “person possessing the power to vote shares of stock on behalf of another” to maintain a record of how the shares were voted.  Section 711(e) obligates such a person to disclose the voting record with respect to any matter involving a specific security or securities in accordance with specified procedures.  For someone trying to apply the statute, this requirements presents several challenges.

First, there is no definition of “possessing the power to vote shares of stock on behalf of another”.  This is a big-time lacuna in the statute because, after all, this is the class of persons who must comply.  Section 711(g) does specify that signing a proxy on another’s behalf and forwarding it for disposition or receiving voting instructions does not constitute the power to vote.

Second, the statute is adrift with no jurisdictional tether.  Does the statute apply to persons physically located in the state, shares voted in California, shares of California corporations, and/or shares of foreign corporations located or doing business in California?  Presumably, the California legislature did not presume to regulate persons with no nexus to California, but what exactly is the required connection?

Finally, the statute doesn’t clearly state who is entitled to make the request.  Rather, it refers only to a “reasonable written request”.  Section 711(e)(1) implies, but doesn’t unequivocally state, that disclosure is required only to a “person on whose behalf shares are voted”.

Woe to anyone who violates the statute.  Section 711(j) provides that anyone who successfully brings an action to enforce the statute may obtain an award of costs and reasonable attorney’s fees if the court finds that the defendant willfully violated the statute.  Of course, the statute doesn’t explain who has standing to bring such an action.  Does “anyone” truly mean anyone?