To Call a Donkey a Racehorse: The Fiduciary Duty Misnomer in Corporate and Securities Law

In a new article, I address a subject that has been ignored for too long:  The fiction of meaningful fiduciary standards in the corporate and securities laws contexts. My article explores the standards that legislatures and courts apply to corporate fiduciaries and demonstrates that the commonly-held framework does not reflect the situation that in fact prevails.

Officers and directors as fiduciaries to the corporations they serve is a recurrent theme in corporate law.  Although not as vibrant under the federal securities laws, fiduciary duty concepts also arise there with some frequency (such as in the insider trading context as seen … Read more

How the SEC Neglects to Enforce Control Person Liability

Scholars and politicians alike have spoken and written at great length about the importance of gatekeepers in our current corporate governance system. However, relatively little has been done to discipline  gatekeepers who seem to have lost the keys to the gate.  Meanwhile, the country’s primary securities regulator, the Securities and Exchange Commission, refuses to employ one of its most powerful tools to keep gatekeepers in check.  Our recent article, Laxity at the Gates:  The SEC’s Neglect to Enforce Control Person Liability, examines the SEC’s reluctance to bring claims against corporate insiders under Section 20(a)[1] of the Securities Exchange … Read more