Shareholder Collaboration

Shareholder Collaboration

Jill Fisch, Simone Sepe

Series number :

Serial Number: 
415/2018

Date posted :

August 29 2018

Last revised :

July 30 2020
SSRN Share

Keywords

  • Corporations • 
  • Corporate governance • 
  • venture capital • 
  • Hedge Fund Activism • 
  • publicly-held companies • 
  • theory of the firm • 
  • private ordering • 
  • spectrum of shareholder collaboration • 
  • collaborative insider-shareholder model • 
  • enhancement of shareholder information • 
  • Management • 
  • shareholders

Two models of the firm dominate corporate law. Under the managementpower model, decision-making power rests primarily with corporate insiders (officers and directors). The competing shareholder-power model defends increased shareholder power to limit managerial authority.

Both models view insiders and shareholders as engaged in a competitive struggle for corporate power in which corporate law functions to promote operational efficiency while limiting managerial agency costs.

As scholars and judges continue to debate the appropriate balance of power between shareholders and insiders, corporate practice has moved on. Increasingly, the insider– shareholder dynamic is collaborative, not competitive. This Article traces the development of insider–shareholder collaboration, explaining how collaboration, which originated in the venture capital context, has expanded into public companies. This expansion, the Article argues, is due to the increasing importance of partial information problems that, for many firms, have grown costlier than agency costs. Using insights from the economics of information, the Article shows how collaboration promotes the production and aggregation of information from insiders and shareholders, adding value that is lost under unilateral decision-making.

Modern corporate law and corporate governance are poorly prepared to handle insider– shareholder collaboration, however. The collaborative process places novel demands on traditional obligations of confidentiality and fiduciary duty as well as complicating the meaning of conflicts of interest. These concepts must be rethought to enable productive collaboration while limiting the potential that the collaborative process can be manipulated to permit collusive behavior or self-dealing.

Published in

Published in: 
Publication Title: 
Texas Law Review
Description: 
Vol. 98, P863, 2020

Authors

Real name:
Research Member, Board Member
University of Pennsylvania Law School
Real name:
Research Member
The University of Arizona; IAST - Toulouse School of Economics