Adapting to the New Shareholder-Centric Reality
Edward B. Rock
University of Pennsylvania Law School
University of Pennsylvania Law Review, Vol. 161, p. 1907, 2013
U of Penn, Inst for Law & Econ Research Paper No. 13-19
After more than eighty years of sustained attention, the master problem of U.S. corporate law — the separation of ownership and control — has mostly been brought under control. This resolution has occurred more through changes in market and corporate practices than through changes in the law. This Article explores how corporate law and practice are adapting to the new shareholder-centric reality that has emerged.
Because solving the shareholder-manager agency cost problem aggravates shareholder-creditor agency costs, I focus on implications for creditors. After considering how debt contracts, compensation arrangements, and governance structures can work together to limit shareholder-creditor agency costs, I turn to available legal doctrines that can respond to opportunistic behavior that slips through the cracks: fraudulent conveyance law, restrictions on distributions to shareholders, and fiduciary duties. To sharpen the analysis, I analyze two controversies that pit shareholders against creditors: a hypothetical failed LBO, and the attempts by shareholders of Dynegy Inc. to divert value from creditors through the manipulation of a complex group structure. I then consider some legal implications of a shareholder-centric system, including the importance of comparative corporate law, the challenges to the development of fiduciary duties posed by the awkward divided architecture of U.S. corporate law, the challenges for Delaware in adjudicating shareholder-creditor disputes, and the potential value of reinvigorating the traditional "entity" conception of the corporation in orienting managers and directors.
Number of Pages in PDF File: 83
Keywords: corporate governance, corporation law, corporate finance, creditors, management and shareholder incentives, agency costs, shareholder-bondholder conflicts, comparative corporate law, fiduciary duties, Delaware impartiality, entity model of corporations
JEL Classification: G32, G34, K20, K22
Date posted: June 15, 2013 ; Last revised: June 26, 2013
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