Beyond Beholden

44 J. Corp. L. 515

45 Pages Posted: 7 Mar 2019 Last revised: 18 Mar 2021

See all articles by Da Lin

Da Lin

University of Richmond School of Law

Date Written: February 1, 2019

Abstract

Corporate law has long been concerned with director independence. In controlled companies, the conventional wisdom focuses on “beholdenness” as the main threat to independence. The prevailing theory argues that directors might feel pressured to reciprocate a past kindness from the controlling shareholder or fear retaliation. This Article argues that this conventional narrative is troublingly incomplete. I show that directors are also influenced by the prospect of rewards, or patronage, from the controller.

This Article is the first to identify controlling shareholder patronage as a systemic phenomenon and to explore how anticipation of future patronage can affect director behavior. It presents an original empirical study on professional relationships between directors who are nominally independent and the controlling shareholders of their firms. My findings reveal that these relationships are far more pervasive than is usually recognized. In fact, some controlling shareholders regularly re-appoint cooperative “independent” directors to senior positions and directorships at other firms under their control. From a director’s perspective, this pattern of behavior means that the potential upside of getting along with the controlling shareholder is significant. I further demonstrate that the likelihood of patronage from the controlling shareholder depends on two factors: the controlling shareholder’s base of controlled entities and the concentration of its decision-making authority. Together, these factors provide an analytic framework for assessing which controllers have greater potential to create conflicts of interest. Disaggregating controlling shareholders in this way opens up opportunities and new challenges for how we define independence, analyze decisions made by putatively independent directors, and judge the utility of independent directors as a safeguard against controller opportunism.

Keywords: Board of Directors, Corporate Governance, Independent Director, Controlling Shareholder

JEL Classification: G34, K22

Suggested Citation

Lin, Da, Beyond Beholden (February 1, 2019). 44 J. Corp. L. 515, Available at SSRN: https://ssrn.com/abstract=3335195

Da Lin (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
237
Abstract Views
1,527
rank
160,994
PlumX Metrics