[法律资料]THE INTEGRITY OF DELAWARES CORPORATE DISSOLUTION STATUTE AFTER TERRITORY OF THE UNITED STATES.doc
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1、55 STLULJ 1173Page 55 St. Louis U. L.J. 1173 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.55 STLULJ 1173Page 55 St. Louis U. L.J. 1173 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.Saint Louis University Law JournalSpring 2011Comment*1173 THE INTEGRITY OF DELAWARES CORPORATE DISSOLU
2、TION STATUTE AFTER TERRITORY OF THE UNITED STATES VIRGIN ISLANDS V. GOLDMAN, SACHS & CO.: IS EXTENDED POST-DISSOLUTION SHAREHOLDER LIABILITY A NECESSARY COMPONENT OF DELAWARES CORPORATE DISSOLUTION SCHEME?Edward T. Pivin FNa1Copyright (c) 2011 Saint Louis University School of Law; Edward T. PivinInt
3、roduction The possibility of corporate dissolution creates both an incentive for opportunistic corporations to avoid future liability and a corresponding risk of non-compensable harm for consumers and the general public. FN1 This is especially true in the area of products liability and environmental
4、 contamination, where a companys products or manufacturing activities may inflict harm many years after the entity has dissolved and distributed its assets. FN2 *1174 To eliminate this “dissolution incentive,” FN3 most states have enacted statutory schemes that regulate corporate dissolution and imp
5、ose varying degrees of liability upon both directors and shareholders. FN4 In the late 1980s, the State of Delaware developed a statutory scheme, then revolutionary, that sought to balance the competing policy concerns of corporate and tort law. FN5 While revised since its inception, Delawares disso
6、lution scheme is still predicated upon two competing, but not irreconcilable, policy concerns: 1) the expeditious distribution of corporate assets in a manner that facilitates their subsequent beneficial utilization; and 2) the protection of corporate creditors and claimants. FN6 Based on these poli
7、cy concerns, Delawares statutory scheme provides corporate directors with a choice between either formal, judicially supervised wind-up procedures or informal, extrajudicial wind-up procedures. FN7 Generally, judicially supervised wind-up provides both directors and shareholders greater insulation f
8、rom liability and affords shareholders greater security for liquidation distributions. FN8 In addition, judicially supervised dissolution provides corporate creditors and claimants-known, contingent, and unknown but foreseeable-with a greater degree of protection than extrajudicial dissolution. FN9
9、Thus, judicially supervised dissolution, while costly, efficiently satisfies the competing policy concerns underlying Delawares statutory scheme. FN10 Extrajudicial corporate dissolution, *1175 on the other hand, fails to adequately satisfy policy concerns-i.e., protection of corporate creditors or
10、facilitation of corporate asset distribution-in situations where corporations have potential future liability. FN11 Elective corporate dissolution under judicial scrutiny is, given the possibility of future liability, the optimum method of corporate dissolution. However, in Territory of the United S
11、tates Virgin Islands v. Goldman, Sachs & Co., the Delaware Court of Chancery interpreted Delawares dissolution statute as providing shareholders the same degree of protection from future liability regardless of whether the corporation winds up its affairs extrajudicially or under judicial scrutiny.
12、FN12 This raises the question of whether temporally extended shareholder liability for post-dissolution corporate distributions is a necessary element of Delawares statutory scheme. More broadly, Goldman Sachs questions the utility of post-dissolution shareholder liability as an element of a states
13、corporate dissolution scheme in general. Given Delawares preeminent status as a state of incorporation, FN13 the broad reach and influence of its Court of Chancery, FN14 and the comparatively unique nature of its *1176 statutory dissolution scheme, FN15 this Comment will primarily focus on Delaware
14、law. Specifically, this Comment will discuss the viability of exposing shareholders to extended post-dissolution liability as a means of deterring corporate liability-avoidance by dissolution. Under the current law after Goldman Sachs, shareholders lack an incentive to initiate or approve of formal
15、dissolution-they are equally protected from post-dissolution liability regardless of the method of wind-up the corporation employs. FN16 Moreover, given the increased cost of formal dissolution and its potential to diminish shareholder liquidation distributions, shareholders may actually have an inc
16、entive to initiate or approve extrajudicial dissolution as a means of avoiding future liabilities. To further complicate matters, Goldman Sachs articulates a strong policy preference among the Delaware Court of Chancery for temporally limited post-dissolution shareholder liability. FN17 The chancery
17、 courts decision in Goldman Sachs thus threatens to undermine the balance of competing policy concerns underlying Delawares statutory dissolution scheme. In order to preserve the flexibility and security offered to directors and shareholders while simultaneously protecting the interests of corporate
18、 claimants at dissolution, Delaware courts must take several steps to modify the law governing corporate dissolution. To reestablish the balance between corporate and tort law policy concerns regarding corporate dissolution after Goldman Sachs, the Delaware Court of Chancery should employ three meas
19、ures: 1) limit the power to choose the method of corporate dissolution solely to directors; 2) impose an implied statutory duty upon such directors to make reasonable provisions for future claims if they elect extrajudicial wind-up; and 3) utilize the doctrine of successor liability FN18 when necess
20、ary to avoid pre-dissolution asset liquidation. By employing these measures, the Delaware Court of Chancery can protect corporate shareholders from temporally-indeterminate post-dissolution liability while simultaneously protecting the interests of present and future tort claimants. These measures w
21、ould also allow the Court of Chancery to ensure that corporations with the potential for future liability will utilize the formal wind-up procedures. This, in turn, will provide *1177 greater protection for corporate claimants insofar as the formal wind-up procedures provide for judicial supervision
22、 of corporate dissolution and the appointment of a guardian ad litem to represent the interests of future corporate claimants. FN19 Employing these measures will restore the delicate balance between corporate and tort law policy concerns regarding corporate dissolution. This Comment will first track
23、 the historical development of the law governing corporate dissolution. A brief, historical analysis of corporate dissolution under the common law will provide a proper context within which Delawares modern statutory dissolution scheme may be assessed. Next, this Comment will summarize the operation
24、 of Delawares statutory dissolution scheme and the manner in which it balances corporate and tort law policy concerns. Then, the Comment will discuss the Goldman Sachs decision and its implications for the integrity of Delawares statutory dissolution scheme. Finally, this Comment will conclude with
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