Worlds In Collision – Agency Law And A Director’s Fiduciary Duties

Some of you may recall the consternation that arose when former Chancellor Chandler seemed to classify directors as agents of the shareholders. Unisuper, Ltd. v. News Corp., No. 1699 (Del. Ch. Dec. 20, 2005) (“the board’s power — which is that of an agent’s with regard to its principal — derives from the shareholders, who are the ultimate holders of power under Delaware law.”). Less than a month later the Chancellor clarified his remarks as follows:

The board of directors owes fiduciary duties to the shareholders. In the Opinion, this Court referred generally to agency law principles to illustrate why the nature and purpose of fiduciary duties is to serve as a shield for shareholders, not as a sword for directors to use against shareholders as a group. Although the Opinion employed agency law principles to illustrate by analogy the gap filling nature of fiduciary duties, it did so in an effort pointedly to reject defendants’ effort to invoke the board’s fiduciary duties as a muzzle to silence shareholders.

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