mardi, septembre 25, 2012

Lecture du matin sur la primauté actionnariale

Bonjour à toutes nos lectrices et à tous nos lecteurs, je vous signale ce papier qui vient d'être publié sur SSRN et qui pourrait en intéresser plus d'une ou d'un ! "Shareholder Wealth Maximization and Its Role in Corporate Law" par Bernard S. Sharfman (

Shareholder wealth maximization (SWM) is a norm of corporate governance that encourages a firm’s board of directors to implement all major decisions with only the interests of shareholders in mind. There is a broad consensus that SWM should be the primary norm underlying corporate governance. SWM has also come to be considered by many to be the primary objective of corporate law. In models of corporate law, such as the principal-agent and nexus of contracts, a board of directors has a legal obligation to manage according to shareholder interests. Such a legal obligation is manifested through the fiduciary duties of care and loyalty that a board owes to its shareholders. Yet, corporate law has very little interest in enforcing SWM through fiduciary duties. Delaware General Corporation Law, the law under which the majority of the largest U.S. companies are incorporated, is totally silent on SWM and court opinions dealing with issues of corporate law rarely reference SWM as a guiding principle. That is why so much attention was paid to the holding in eBay Domestic Holdings, Inc. v. Newmark which makes the objective of a board’s fiduciary duties the maximization of shareholder wealth when the board is trying to satisfy the first prong of the Unocal test. The significance of the holding in eBay lies in its potential application when the courts review shareholder rights plans and other types of defensive measures implemented by public companies, the type of corporation which this article addresses. In terms of precedent, the holding in eBay was an example of impeding too much on managerial discretion and needs to be narrowly applied to only rights plans involving close corporations with a controlling shareholder or shareholder group. In terms of our global thinking about the objectives of corporate law, two very important points are made in the process of evaluating the holding in eBay. First, doubt is cast on whether SWM is even an appropriate objective of board authority. Second, even when it is assumed that SWM is a legitimate objective, corporate law has very little use for SWM because of the conflict it creates with the maximization of managerial discretion, the objective that is most highly prized under corporate law.

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