JOHN PICTON, University of Liverpool
Email: uctljop@liverpool.ac.uk

Lehtimäki v Cooper is a significant Supreme Court decision which establishes that the members of charitable companies are in a fiduciary relationship with respect to the purposes of their organisation. Its core principles have the potential to impact on a very large number of people in the voluntary sector. This note critically assesses the nature and scope of the new fiduciary relationship. In the light of the fact that the majority of new charities are founded as charitable incorporated organisations, the note also criticises the narrow focus on charitable companies taken in the case. Finally, it analyses the expansion in jurisdiction in the decision. The case is notable for bringing companies within the courts’ traditional, and powerful, jurisdiction over trusts.

MATTHEW G. DORE, Drake University Law School
Email: Matt.Dore@drake.edu

In the typical “going private” corporate merger a controlling shareholder converts the company to closely held status by acquiring the publicly traded shares of minority stockholders. Meade v. Christie et al., a shareholder class action challenging just such a transaction, is currently pending before the Iowa Supreme Court. The appeal will test the strength of a director liability shield law patterned on the Model Business Corporation Act (“MBCA”) template, including whether the shield’s “intentional infliction of harm” exception encompasses claims for “conscious disregard” or “intentional dereliction” of duty. The case also presents other novel issues of corporate law pertaining to going private transactions that are largely unsettled outside of Delaware.

The Article argues that approval of going private mergers by controlling shareholders “ex Delaware,” like the transaction litigated in Meade, should follow the well-traveled path laid out in Delaware’s MFW jurisprudence and in MBCA Section 13.40(b)(3). This approval channel, which cedes control to disinterested, independent directors and well-informed, disinterested shareholders, obviates the need for entire fairness review of the controlling shareholder’s merger terms if they are challenged in subsequent litigation. Qualified corporate directors should be encouraged to participate in that disinterested approval process without fear of disproportionate liability risks. As shown by the Meade case, when such directors are protected by an MBCA raincoat provision, a narrow interpretation of the “intentional infliction of harm” shield exception can accomplish that goal. Such an interpretation is not only consistent with Delaware practice and experience, but also reflects intentional drafting choices for the MBCA. Shareholders who sue directors who have asserted such shield protection should face dismissal absent factual allegations that support one of the MBCA’s narrowly drawn exceptions to exculpation.

LEON YEHUDA ANIDJAR PHD, IE University - IE Law School
Email: lanidjar@faculty.ie.edu

The issue of gender diversity in board composition and corporate leadership roles has become one of the most important topics in corporate governance in recent years. This Article presents a descriptive and normative analysis of the subject through a comparative study of law in America, Europe, Africa, Asia, and Australia. After presenting a systematic analysis of different approaches adopted by various nations, I argue that they reflect how each legal system perceives the relationship between corporate law and public law values. According to the internal perspective of corporate governance adopted by the Anglo-American legal systems, corporate law should focus on regulating the power relations between shareholders and directors or between controlling shareholders and minority shareholders to promote the interests of shareholders exclusively. This view will usually regulate gender diversity in the board composition through market mechanisms by setting voluntar