M&A Alert

Fiduciary Duties of Directors in Connection with an Acquisition: A Massachusetts Difference

June 2, 2017


Customary analysis of the fiduciary duties of directors in connection with their consideration of an acquisition of the corporation focuses on the nature of that fiduciary duty: What is that duty? Under what circumstances is the standard of review of the directors’ performance enhanced? Does the enhanced duty impose on the directors an obligation to take particular actions? Can actions taken by the shareholders immunize the directors from liability for their actions and decisions? Lawyers counseling boards of directors focus on these questions.

Yet, as important in practice may be the question: To whom do the directors owe that duty? Ordinarily, lawyers and directors speak of fiduciary duties owed to the shareholders. And they know that litigation in Delaware related to acquisitions of public corporations is regularly brought as a class action suit to enforce duties owed to shareholders. However, that is not the universal rule, and a different answer to the question can be outcome determinative in litigation.

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