57 Trial Lawyer • Spring 2023 other shareholders, alleging oppression. Pursuant to ORS 60.952, the corporation elected to purchase the plaintiff’s shares, but the parties could not agree on the fair value of those shares. The trial court held a bench trial on that issue, found that there had been no oppression, and then ruled that, because there had been no oppression, the “fair value” of the shares had to be their “fair market value,” which required the court to apply marketability and minority discounts to the value of the shares, i.e., discounts to account for (1) the fact that shares in a closely held corporation are less marketable than shares in a publicly traded corporation, and (2) the fact that the plaintiff’s shares constituted only a minority interest in the corporation. The plaintiff appealed, challenging the trial court’s application of the marketability and minority discounts. The Court of Appeals reversed, explaining that, while the facts of a given case may allow for application of marketability and minority discounts in the absence of oppression, the trial court erred in thinking it must apply those discounts given the lack of oppression. The appellate court ordered the trial court on remand to determine whether, under the particular facts of the case, it is appropriate to apply minority and/or marketability discounts in determining the fair value of the plaintiff’s shares. An award of attorney fees cannot include fees anticipated to be incurred in the future. Coast 2 Coast Logistics, LLC v. Badger Auctioneers, Inc., 323 Or App 374 (2022); Tookey, J. The plaintiff was represented by Melisa Button. The plaintiff prevailed in this breach of contract and negligence case and obtained an award of attorney fees under ORS 20.082(2). The trial court included in that award post-judgment attorney fees of $5,000 for anticipated future collection efforts, contingent on the fees phrase undefined but construed narrowly to comport with federal law. Similarly, the majority determined that Rule 43, whether or not addressed only to compensable time spent in preparatory and concluding activities, should be construed consistently with the federal statute protecting employers from having to compensate employees for time spent in those activities. As compelled by its conclusion that both the legislature and BOLI intended to mirror federal law, the Supreme Court concluded an employee’s off-the-clock time spent complying with an employer’s anti-theft security screenings was not compensable in Oregon. DECISIONS OF THE OREGON COURT OF APPEALS Hospital’s administering and charging for allegedly defective drug as part of its medical services subjects it to product liability claim as a “seller * * * engaged in the business of selling” under ORS 30.920. Brown v. GlaxoSmithKline, LLC, 323 Or App 214 (2022), Powers, J. Travis Eiva represented plaintiff. In this strict product liability action brought against, among others, Providence Health System, the plaintiff parents of a minor child born with irreparable heart defects alleged claims against both the defendant drug manufacturer and defendant hospital arising from a defective drug administered to the mother while pregnant that allegedly caused the child’s injuries. The trial court granted the defendant hospital’s summary judgment motion and dismissed the product liability claim against Providence, concluding that Providence is not “a seller * * * engaged in the business of selling” Zofran — the drug in question — within the meaning of ORS 30.920. The plaintiffs appealed. On appeal, the Court of Appeals construed the relevant statutory provisions and concluded that the trial court erred in granting the defendant hospital’s motion. The court concluded that the statutes require only that a “seller” is “one who transfers ownership of the product to another in exchange for valuable consideration and whose ongoing commercial activity consists in some part of selling the product.” Under ORS 30.920, a “seller *** engaged in the business of selling” may be liable “even if the seller also or primarily provides a service, the sale of the product is incidental to that service, and the product is immediately consumed on site.” Accordingly, the court concluded the trial court erred in granting summary judgment. There was evidence in the record that Providence transferred the drug to the plaintiff mother for valuable consideration, administered the drug to her on site and later charged her for it as part of its services, and regularly maintained a stock of the drug to administer to other patients for a charge as part of the medical services it provided. In determining the fair value of a plaintiff’s shares under ORS 60.952(6), the court may choose not to apply marketability or minority discounts even when there is no oppression. Ybarra v. Dominguez Family Enterprises, Inc., 322 Or App 798 (2022); Shorr, J. The plaintiff was represented by Matt Kalmanson. When a shareholder of a closely held corporation brings a lawsuit alleging oppressive conduct by those in control of the corporation, the corporation or other shareholders can elect to purchase the plaintiff’s shares for their fair value and thereby terminate the lawsuit. If the parties are unable to reach agreement on the fair value of the plaintiff’s shares, the court determines that value, “taking into account any impact on the value of the shares resulting from the actions giving rise to” the lawsuit. ORS 60.952(6). In this case, the plaintiff was a shareholder in a closely held corporation and filed suit against the corporation and the See Sheets 58
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