The Three Faces of Control

The Business Lawyer (2022 Forthcoming)

Tulane Public Law Research Paper No. 21-8

26 Pages Posted: 5 Nov 2021 Last revised: 20 Dec 2021

See all articles by Ann Lipton

Ann Lipton

Tulane University - Law School

Date Written: November 2, 2021

Abstract

Controlling shareholders are subject to distinct legal obligations under Delaware law, and thus Delaware courts are routinely called upon to distinguish “controlling shareholders” from other corporate actors. That is an easy enough task when a person or entity has more than 50% of the corporate vote, but when a putative controller has less than 50% of the vote – and is nonetheless alleged to exercise control over corporate operations via other means – the law is shot through with inconsistency.

What is needed is a contextual approach that recognizes that the meaning of control may vary depending on the purpose of the inquiry. Under Delaware doctrine, the controlling shareholder label subjects that entity to unique legal treatment along three distinct dimensions. First, controlling shareholders – unlike minority shareholders – have fiduciary duties to the corporation. Second, interested transactions with controlling shareholders – unlike interested transactions with other fiduciaries – are subject to a unique cleansing regime in order to win business judgment deference from reviewing courts. Third, when certain transactions involving sales of control are challenged in court, they may be treated as direct rather than derivative actions, even when similar transactions that do not involve control sales would be treated as purely derivative.

By teasing out these three aspects of the legal framework and analyzing them separately, courts can more closely attend to the reasons why control carries special significance, and ultimately develop a more rational and consistent set of definitions. Most critically, courts may properly designate someone a controlling shareholder for some purposes, but not others.

Keywords: corporations, delaware, controlling shareholder, corporate governance

Suggested Citation

Lipton, Ann, The Three Faces of Control (November 2, 2021). The Business Lawyer (2022 Forthcoming), Tulane Public Law Research Paper No. 21-8, Available at SSRN: https://ssrn.com/abstract=3954552 or http://dx.doi.org/10.2139/ssrn.3954552

Ann Lipton (Contact Author)

Tulane University - Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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