Securities for Expense Statutes: Easing Shareholder Hopelessness?

The quintessential derivative suit is a suit by a shareholder to force the corporation to sue a manager for fraud, which is admittedly an awkward and likely unpleasant endeavor and, according to the Supreme Court, a “remedy born of stockholder helplessness. Stockholders who hold no concurrent management role are indeed limited in their arsenal to combat perceived managerial neglect or malfeasance. Other than exercising their voting rights to bring about a change in management, these shareholders are at the whim of their elected and appointment champions, subject of course to the not insignificant fiduciary duties imposed on these managers.

Where ownership and control of an enterprise are vested in the same population, the need for a corrective mechanism like a derivative suit is greatly lessened because the owner/managers self-interest will arguably guide managerial conduct. But where ownership and control are in separate hands, the incentives change and managerial conduct may not conform to the owners’ view of the best course of action. This may lead to what the owners consider to be director misconduct. The existing corporate laws have not been effective in stopping this kind of director misconduct, so “stockholders, in face of gravest abuses, were singularly impotent in obtaining redress of abuses of trust.” In these situations, shareholders are arguably in need of legal strategies to protect them from abuses by management.

Presumably in an effort to limit the abuse of strike suits that would take up both managerial time and resources and corporate dollars, several significant procedural hurdles for derivative plaintiffs have arisen including the requirement of contemporaneous share ownership, a requirement that derivative plaintiffs make a “demand” on the corporation, with particularity, to take requested action, the lack of access to the discovery process, and compliance with any relevant security for expense statutes. Balancing the right of shareholders to hold their directors accountable against the need for directors to have the freedom and autonomy to discharge their statutory and fiduciary duties is no easy feat. That said, these hurdles, when combined, may erode or even undermine the ultimate utility of the derivative litigation process.

This Article provides an evaluation and analysis of one of the primary procedural roadblocks facing derivative plaintiffs as they seek to hold their corporation accountable: the security for expense statute. The theory behind these security for expense statutes is that they will act as a sieve and somehow weed out strike suits that have no merit. A major problem is these suits have no true metric to determine which suits are in fact meritorious. They all use percentage of stock or market value of stock owned as some sort of proxy for thoughtful and meritorious litigation. The theory implicitly assumes that stockholder with less than the required threshold will not bring meritorious claims; the sole metric to determine if a shareholder is acting in good faith and thus should be permitted a day in court is the amount of stock owned. The idea presumes that a major shareholder has a financial interest in not wasting the corporate time and resources on a frivolous claim and may be deterred from filing to avoid posting the bond and that this shareholder, because of the amount of stock owned, will be motivated to serve the best interests of the corporation. It does not follow, however, that minority shareholders necessarily lack the same financial incentives. The amount of stock, or even the market value of one’s stock, is not a perfect proxy for a metric to measure whether a particular shareholder will be wasting corporate time and money. Yet shareholders whose holdings are below the relevant statutory are required to provide security in order for their claims to move forward.

This Article examines and compares the nine existing security for expense statutes, offering observations on those challenges present in the current statutes and those new challenges flowing from these statutes. The Article also evaluates the limited amount of case law flowing from these statutes, as part of an evaluation of the usefulness of this mechanism as a gatekeeper in derivative litigation and provides recommendations for legislative reform and modifications to existing doctrine that will help further the goals of the shareholder empowerment through the derivative litigation process, while keeping the potential for strike suits in check.