Olshan Secures Landmark Victory in Supreme Court of Bermuda

Olshan’s Shareholder Activism Litigation Practice recently secured a precedent-setting Preliminary Injunction Order in the Supreme Court of Bermuda on behalf of Paul Kazarian, a Directors of ASA Gold and Precious Metals, Ltd (NYSE: ASA), a closed-end precious metals fund registered in Bermuda.  

By way of background, in December 2023, Saba Capital Management, L.P., ASA’s largest shareholder, submitted a nomination notice with a proposed slate of director candidates for election to the Company's Board at its 2024 annual general meeting (AGM). In response, the Company instituted a limited-duration shareholder rights plan (“Poison Pill”) intended to prevent Saba from acquiring more shares in the Company. Immediately before the 2024 AGM, when it was known that two of Saba’s board candidates would be elected to the Board, the prior Board created two new Board committees (“Litigation and Rights Plan Committees”) with broad power to act unilaterally on behalf of the Fund, excluding the newly elected directors from core Board functions including director nominations and renewal of the Fund’s Poison Pill.  At the 2024 AGM, ASA’s shareholders elected two directors from Saba's slate, including Mr. Kazarian, and re-elected two directors from the then-Board's slate (“Legacy Directors”), resulting in a deadlocked Board.

In the ensuing months, the Legacy Directors unilaterally extended the Poison Pill numerous times and threatened to use the Litigation Committee to nominate a Company slate of directors for the 2025 AGM. In April 2025, Saba submitted a requisition to convene a special meeting of ASA shareholders (“SGM”) to allow shareholders to add a fifth director to break the Board deadlock. The Legacy Directors voted against the Board convening the SGM and used the Litigation Committee to submit a slate of directors for the 2025 AGM and to solicit the Company's shareholders to vote against the SGM's proposed resolutions.

Partnering with Bermuda counsel, Olshan filed suit in the Bermuda Supreme Court and obtained a broad temporary restraining order (“TRO”) enjoining the Legacy Directors from acting on behalf of the Company without Board approval, from unlawfully excluding Mr. Kazarian from participating in critical board deliberation and decision-making, and from interfering with the SGM. Following a three-day hearing, the Bermuda Court extended the TRO to a full Preliminary Injunction Order.

After the Court granted relief, the SGM was held on June 13, at which shareholders overwhelmingly voted to expand ASA’s Board to five members and to elect an independent fifth director. Shortly thereafter, the Legacy Directors resigned from the Board, leaving a fully independent three-member Board.

The Bermuda Court’s monumental decision affirms that offshore jurisdictions will protect and uphold critical corporate governance rights in the same manner as U.S. courts, promoting investor confidence abroad. Chair of Olshan's Litigation Practice Group and Head of Olshan’s Shareholder Activism Litigation Practice Lori Marks-Esterman led the Olshan legal team, which included partners Adrienne Ward, Dorothy Sluszka and Rebecca Van Derlaske and associate Andrew J. Astore.