Directors' Duties in Failing Firms
Larry E. Ribstein (Deceased)
University of Illinois College of Law; PERC - Property and Environment Research Center
Kelli A. Alces
Florida State University - College of Law
Journal of Business and Technology Law, Vol. 1, No. 2, p. 529, 2007
FSU College of Law, Public Law Research Paper No. 234
U Illinois Law & Economics Research Paper No. LE06-004
Despite many cases with seemingly contrary dicta, corporate directors of failing firms do not have special duties to creditors. This follows from the nature of fiduciary duties and of the business judgment rule. Under the business judgment rule, the directors have broad discretion to decide what to do and in whose interests to act. There is some authority for a limited creditor right to sue on behalf of the corporation to enforce this duty. However, any such right does not make the duty one owed to creditors. The creditors individually may sue the corporation for breach of specific contractual, tort and statutory duties, particularly on account of fraudulent conveyances. But the creditors are not owed general fiduciary protection even if they are subject to a special risk of abuse in failing firms.
Number of Pages in PDF File: 24
JEL Classification: K12, K20, K22, K35
Date posted: February 2, 2006 ; Last revised: September 15, 2011
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