The Decisions of Corporate Special Litigation Committees: An Empirical Investigation

28 Pages Posted: 25 Jul 2008 Last revised: 2 Nov 2013

Minor Myers

Brooklyn Law School

Date Written: July 18, 2008

Abstract

This Article examines the decisions of corporate special litigation committees using an original data set gathered from company filings with the SEC. It demonstrates that the prevailing view in corporate law - that special litigation committees uniformly decide to dismiss derivative litigation against manager colleagues - is not accurate. This Article shows that approximately forty percent of the time special litigation committees decide to settle claims or pursue them against one or more defendants. Furthermore, approximately seventy percent of the time cases subject to control by a special litigation end in settlement; only approximately twenty percent of the time is the end result dismissal. What has long been viewed as an engine for having derivative litigation dismissed actually leads to settlements most of the time. The view that special litigation committees behave too predictably has underwritten doubts about the ability of independent and disinterested directors to police conflict of interest transactions generally. The findings presented here show that the prevailing view about special litigation committee behavior is an unsound basis for generalizing about how independent and disinterested directors behave.

Keywords: corporate law, special litigation committee, shareholder, litigation, derivative, independent directors, board of directors

Suggested Citation

Myers, Minor, The Decisions of Corporate Special Litigation Committees: An Empirical Investigation (July 18, 2008). Indiana Law Journal, Vol. 84, No. 4, 2009; Brooklyn Law School, Legal Studies Paper No. 112. Available at SSRN: https://ssrn.com/abstract=1162858

Minor Myers (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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