47 Pages Posted: 1 Aug 2009 Last revised: 28 Dec 2014
Date Written: May 26, 2010
This Article examines the dilemma of a fiduciary acting for parties who, as among themselves, have conflicting commercial interests - an inquiry fundamentally different from that of the traditional study of conflicts between fiduciaries and their beneficiaries. Existing legal principles do not fully capture this dilemma because agency law focuses primarily on an agent’s duty to a given principal, not on conflicts among principals; trust law focuses primarily on gratuitous transfers; and commercial law generally addresses arm’s length, not fiduciary, relationships. The dilemma has become critically important, however, as defaults increase in the multitude of conflicting securities (e.g., classes of securities of the same issuer having different priorities or sources of payment) that are typical of modern finance. A fiduciary, such as a trustee, acting for investors in these securities faces the difficult task of trying to understand and balance the respective obligations owed to conflicting classes and the risk of being sued no matter how the balancing is performed.
Keywords: fiduciary conflicts, agency, securities, bankruptcy, CDO, SIV
Suggested Citation: Suggested Citation
Schwarcz, Steven L., Fiduciaries with Conflicting Obligations (May 26, 2010). Minnesota Law Review, Vol. 94, No. 6, p. 1867, 2010. Available at SSRN: https://ssrn.com/abstract=1441225