Law Commons^™

Widener Law, The Institute Of Delaware Corporate & Business Law, On-Line Symposium: Default Fiduciary Duties In Llcs And Lps, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

A Limit On Downsizing: Varity Corp. V. Howe, James B. Shein

Pepperdine Law Review

No abstract provided.

Managing Expectations: Does The Directors' Duty To Monitor Promise More Than It Can Deliver?, Lisa Fairfax

All Faculty Scholarship

This article grapples with whether we are expecting too much from the duty of oversight. The directors’ oversight duty refers to directors’ responsibility to actively monitor corporate officers, employees, and corporate affairs. Directors breach their oversight duty when officers and employees engage in wrongdoing that causes harm to the corporation and that wrongdoing can be attributed to directors’ failure to monitor. In other words, oversight liability holds directors liable for their failure to act under circumstances where it can be proven that directors should have acted and their actions could have prevented corporate harm.

The significance of directors’ oversight duty …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. In a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on M&A activity and its poor corporate policy implications. This has led many academics and practitioners to ask whether Omnicare was a normatively …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

Revisiting And Re-Evaluating Omnicare 10 Years Later, Megan Wischmeier Shaner

Megan Wischmeier Shaner

Abstract Known as one of the premier business courts in the country, very few decisions of the Delaware Supreme Court have garnered as much criticism as Omnicare, Inc. v. NCS Healthcare, Inc. Indeed, much of the criticism originated from the court itself; in a court famously known for issuing unanimous decisions, Omnicare led to two separate dissenting opinions. In the dissents and in the years since its issuance, the majority’s decision has been faulted not only for its doctrinal shortcomings, but also for its potentially negative impact on merger and acquisition activity and its poor corporate policy implications. This has …

M&A Fiduciary Duties: Delaware’S Murky Jurisprudence, Daniel J. Morrissey

Dan Morrissey

The article deals with the fiduciary duties of corporate officials in mergers and acquisitions, particularly as they have been defined by the Delaware Courts. It focuses on judicial decisions over the last several decades and includes a discussion of some of the most recent significant ones.

The article also describes how those duties may vary depending on the type of corporate event that is occurring and contains commentary on the nature of those obligations. Where corrupt activity is present or there is no showing that these transactions are in the public interest, they should not be permitted to go forward. …

Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows, Louise Lark Hill

University of Michigan Journal of Law Reform

Centuries ago, when land represented the majority of wealth, the trust was used primarily for holding and transferring real property. As the dominant form of wealth moved away from family land, the trust evolved into a device for managing financial assets. With this transformation came the use of exculpatory clauses by both amateur and professional trustees, providing an avenue for these fiduciaries to escape liability for designated acts. With the use of exculpatory provisions, discussion abounded about whether fiduciary duties were mandatory or subject to modification. The latter view eventually prevailed, with the majority of jurisdictions viewing fiduciary duties as …

The Naked Fiduciary, Michelle M. Harner, Jamie Marincic

Michelle M. Harner

Business law is grounded in the common law of fiduciary duty. Courts and policymakers have been loath to abandon that principle. Yet, particularly in the contractual context of limited liability companies (LLCs), the fiduciary label is illusory and may undercut sound governance practices for those entities. This Article presents an in-depth empirical study about governance provisions included in LLC operating agreements and examines the implications of the data in the context of various types of businesses that might choose to organize as LLCs. The Article uses the data and related case studies to offer a new approach to LLC governance …

Dual Real Estate Agents And The Double Duty Of Loyalty, Mary Szto

Mary Szto

Our present housing crisis is related in part to practices of real estate agents. This article addresses the top three issues that cause the most disputes for agents. They are dual agency, disclosure, and breach of fiduciary duty. Despite legislative efforts in the past two decades to clarify and reduce the duties of dual agents, agents and consumers are still confused about agents who represent both sellers and buyers. They owe double, not half the loyalty owed to one principal.

The stakes are high because home ownership is critical to our economic recovery and the chief source of wealth for …

Limiting And Eliminating (And Establishing?) Fiduciary Duties In Delaware Business Entities, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

L3cs: The Next Big Wave In Socially Responsible Investing Or Just Simply Too Good To Be True?, David J. Schwister

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Private Equity Firms: Beyond Sec Registration As An Investment Adviser How To Build And Administer An Effective Compliance Program, Susan Mosher

Michigan Business & Entrepreneurial Law Review

The Securities and Exchange Commission (the “SEC” or the “Commission”) recently adopted new rules and rule amendments under the Investment Advisers Act of 1940 (the “Advisers Act”) that serve to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).1 The new rules and rule amendments under the Advisers Act relate to provisions of Title IV of the Dodd-Frank Act (the Private Fund Investment Advisers Registration Act of 2010) that, among other things, require certain private fund advisers and private equity firms to register with the Commission.2 This article is intended to assist firms that …

The Naked Fiduciary, Michelle M. Harner, Jamie Marincic

Faculty Scholarship

Business law is grounded in the common law of fiduciary duty. Courts and policymakers have been loath to abandon that principle. Yet, particularly in the contractual context of limited liability companies (LLCs), the fiduciary label is illusory and may undercut sound governance practices for those entities. This Article presents an in-depth empirical study about governance provisions included in LLC operating agreements and examines the implications of the data in the context of various types of businesses that might choose to organize as LLCs. The Article uses the data and related case studies to offer a new approach to LLC governance …

Not All "Units" Are Created Equal: How Hebble V. Shell Western E&P;, Inc. Missed An Opportunity To Curb The Expansion Of Fiduciary Obligations In Oklahoma Oil And Gas Law, Brad Secrist

Oklahoma Law Review

No abstract provided.

The Role Of Aspiration In Corporate Fiduciary Duties, Julian Velasco

Journal Articles

Corporate law is characterized by a pervasive divergence between standards of conduct and standards of review. Courts often opine on the relatively demanding standard of conduct, but their judgements must be based on the more forgiving standard of review. Commentators defend this state of affairs by insisting that it provides guidance to directors without imposing ruinous liability. However, the dichotomy can lead many, especially those who focus on the bottom line, to call into question the meaningfulness of standards of conduct. Of particular concern is the increasing popularity, in legal and scholarly circles, of the notion that fiduciary duty standards …

Fiduciary Duties And Exculpatory Clauses: Clash Of The Titans Or Cozy Bedfellows?, Louise Hill

Louise L Hill

Centuries ago, when land represented the majority of wealth, the trust was used primarily for holding and transferring real property. As the dominant form of wealth moved away from family land, the trust evolved into a device for managing financial assets. With this transformation came the use of exculpatory clauses by both amateur and professional trustees, providing an avenue for these fiduciaries to escape liability for designated acts. With the use of exculpatory provisions, discussion abounded about whether fiduciary duties were mandatory or subject to modification. The latter view eventually prevailed, with the majority of jurisdictions viewing fiduciary duties as …