On the 5th of January 2023, the Supreme Court of the Canton of Zug ruled in favour of a shareholder request to audit the founding transaction of ConsenSys Software Incorporated (CSI).
The transaction, code named "Project North Star" transferred major products and business units (Metamask, Infura, and others) from the Swiss-based ConsenSys AG to the US-based CSI. On the basis of its ownership of these assets, CSI raised $715 Million between 2020 and 2022.
The shareholders of ConsenSys AG contend that the transaction was conducted in a clandestine fashion, that they were neither consulted, nor aware that the transaction had taken place until it was covered in the media due to an illegal two-year suspension of general shareholder meetings. Also, that their requests for clarity on the means by which the value of the transferred assets was derived were ignored. The ruling includes the argument:
"Even the Federal Tax Administration (FTA) apparently could not readily comprehend the appropriateness of the set purchase price of USD 46.6 million on the basis of the PwC valuation report. The responsible valuation specialist at the FTA asked "numerous questions", as Rolf Röllin, PwC, informed Frithjof Weinert by e-mail on 4 August 2020" - (Page 39)
Further issues of conflict of interest and the involvement of unelected directors are included in the ruling:
". . . it is credible that Frithjof Weinert was no longer a member of the respondents board of directors at the time of the authorisation resolution. . . He could therefore no longer participate in the resolution. . . The authorising resolution was therefore passed by the only remaining member of the Board of Directors, Joseph Lubin, who was, however, subject to a conflict of interest with regard to the CSI transaction " - (Page 36)
ConsenSys AG shareholder, Arthur Falls states:
"It is an amazing relief to finally get past ConsenSys' endless efforts to delay the ruling on an audit and defeat us through legal attrition. To read such a supportive ruling from a panel of three senior judges is a huge validation of over a year of work and has put wind in the sails of the whole shareholder group. This kind of action is extremely difficult but we are slowly winning.
The previous ruling that ordered the authorisation of the Project North Star transaction be put to a shareholder vote means that, regardless of the outcome of the vote, we will be able to challenge the legality of the transaction in court, where Joe Lubin does not have the advantage of being majority shareholder. This ruling in favour of an audit will enable us to gather the evidence we need to succeed in that challenge. This will see all the transferred assets returned to ConsenSys AG where they will have appropriate stewardship."