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Fiduciary Duties for Activist Shareholders


Iman Anabtawi


University of California, Los Angeles (UCLA) - School of Law

Lynn A. Stout


Cornell Law School - Jack G. Clarke Business Law Institute


UCLA School of Law, Law-Econ Research Paper No. 08-02
Stanford Law Review, Vol. 60, 2008

Abstract:     
Corporate law and scholarship generally assume that public corporations are controlled by professional managers, while shareholders play only a weak and passive role. As a result, corporate officers and directors are understood to be subject to extensive fiduciary duties, while shareholders traditionally have been thought to have far more limited obligations. Outside the contexts of controlling shareholders and closely-held firms, many experts argue shareholders have no duties at all.

The most important trend in corporate governance today, however, is the move toward shareholder democracy. Changes in financial markets, in business practice, and in corporate law have given minority shareholders in public companies greater power than they have ever enjoyed before. Activist investors, especially rapidly-growing hedge funds, are using this new power to pressure managers into pursuing corporate transactions ranging from share repurchases, to special dividends, to the sale of assets or even the entire firm. In many cases these transactions uniquely benefit the activist while failing to benefit, or even harming, the firm and other shareholders.

This article argues that greater shareholder power should be coupled with greater shareholder responsibility. In particular, it argues that the rules of fiduciary duty traditionally applied to officers and directors and, more rarely, to controlling shareholders, should be applied to activist minority investors as well. This proposal may seem a radical expansion of fiduciary doctrine. Nevertheless, the foundations of an expanded shareholder duty have been laid in existing case law. Moreover, there is no reason to believe that newly-empowered activist shareholders are immune to the forces of greed and self-interest widely understood to tempt corporate officers and directors. Corporate law can, and should, adapt to this reality.

Number of Pages in PDF File: 66

Keywords: Public Corporations, shareholder responsibilities, corporate governance, activist investors, corporate transactions

JEL Classification: K10, K22

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Date posted: February 5, 2008 ; Last revised: March 21, 2008

Suggested Citation

Anabtawi, Iman and Stout, Lynn A., Fiduciary Duties for Activist Shareholders. UCLA School of Law, Law-Econ Research Paper No. 08-02; Stanford Law Review, Vol. 60, 2008. Available at SSRN: http://ssrn.com/abstract=1089606 or http://dx.doi.org/10.2139/ssrn.1089606

Contact Information

Iman Anabtawi
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
Lynn A. Stout (Contact Author)
Cornell Law School - Jack G. Clarke Business Law Institute ( email )
524 College Ave
Myron Taylor Hall
Ithaca, NY 14853
United States
607-255-8431 (Phone)
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