Fiduciary Duty Myths in Close Corporate Law

Abstract:     
A debate exists in the close corporate literature and caselaw regarding who in a close corporation owes fiduciary duties, to whom those duties are owed, whether that duty is the traditional corporate duty or a heightened partnership duty, and whether corporations with a small number of shareholders can merit recognition as a close corporation without a statutory election of that status. The different points of view are represented by the caselaw in Massachusetts and Delaware, with the Massachusetts rule being crowned as the majority rule. This article delineates with great specificity that characterizing the Massachusetts rule as the majority rule is a highly suspect classification because the caselaw support for this rule has been greatly exaggerated and misunderstood. Moreover, this article exposes the issues underlying the competing viewpoints so that courts can make a more educated choice among these issues. Finally, since recent developments in business law are consistent with the philosophy underlying the minority rule, this article reasons that the current Delaware minority rule will eventually become the dominant view in close corporate law.

Keywords: Fiduciary Duty, Delaware, Journal, Corporate, Law

Accepted Paper Series