Prof. David Hoffman
Unit 1: Agency
– Restatement § 1: Agency
– The manifestation of consent by P to A that A shall act
– On P’s behalf
– Subject to P’s control
– A’s consent to so act
– Restatement Third:
“Control is a concept that embraces a wide spectrum of meanings, but:
– “Within any relationship of agency the principal initially states what the agent shall and shall not do, in specific or general terms.
– “Additionally, a principal has the right to give interim instructions or directions to the agent once their relationship is established. …
– “A principal’s control over an agent will as a practical matter be incomplete because no agent is an automaton who mindlessly but perfectly executes commands. …
– “The power to give interim instructions distinguishes principals in agency relationships from those who contract to receive services provided by persons who are not agents.”
– Agency relationships can be implied
– Agency relationships cannot be disclaimed
• A “principal need not exercise physical control over the actions of its agent” so long as the principal may direct “the result or ultimate objectives of the agent relationship.” Green v. H & R Block, Inc., 735 A.2d 1039, 1050 (Md. 1999).
• “when one … asks a friend to do a slight service for him, such as to return for credit goods recently purchased from a store,” an agency relationship exists even though no compensation or other consideration was contemplated. Restatement (Second) § 1(1) cmt. b.
Garton v. Doty, Idaho (1937) p. 1
· Plaintiff minor was injured in a car accident, car was owned by the teacher, and driven by the coach. The teacher volunteered her car, she claims it was a loan, but the coach never asked for the car. The court held that the coach was an agent, and the teacher was the principle, therefore by agency concepts, the teacher was liable.
Rule: An agency relationship exists when the principal consents to the agent:
1. acting on principle’s behalf
2. subject to principle’s control
Note^: It is important to note that the jury was informed that the driver was insured. The court reasoned that the teacher wanted the kids to get to the game, and would’ve driven herself, therefore the coach was acting on her behalf.
Agency between Creditor and Debtor
A Gay Jenson Farms Co. v. Cargill, Minn. (1981) p. 7
· Creditor Company Cargill was held to be a principle over debtor grain dealer Warren based on 1. Cargill’s recommendations on business conduct to Warren, 2. Cargill’s right of first refusal of grain, 3. Warren’s inability to enter mortgages without Cargill’s consent, 4. Cargill’s right of entry to Warren’s premises, 5. Constant criticism, 6. Determination that Warren needed paternal guidance, 7. Provision of drafts and forms which Cargill’s name was printed, 8. Financing (not actually weird), 9. Power to discontinue (also not weird).
· Rule: A creditor becomes a principle, and a debtor an agent, when it is clear that the creditor exhibits de facto control based on circumstantial evidence.
Note^: If Warren’s operation was independent of Cargill, it would be a relationship of buyer-supplier, not agent-principal.
With any terms of agency, a principal gives interim instructions, says “shall” do something (specifically or implicitly).
– The principal must allow agents to make decisions for her or make decisions on the basis of information provided by the agent
– The principal is concerned that the agents will not do what she herself would have done
– Agents have preferences of their own. These are usually private information
– The discipline of the market is lost:
– Competitive markets deter opportunism because non-cheating party can readily find alternatives
– In the press example, no longer have a competitive market; instead, a bilateral monopoly
Shirking by agents
– Any action by a member of a production team that diverges from the interests of the team as a whole
– Includes not only culpable cheating, but also negligence, oversight, incapacity, and even honest mistakes
– In other words, shirking is simply the inevitable consequence of bounded rationality and opportunism within agency relationships
Corporate Law: A set of background rules largely default that govern the relationship between board, managers, and shareholders
– The rule are informed and shaped by the law of agency
– Agency arises by consent, not contract
– Control is a sliding scale, fact specific inquiry
– More practical control = more legal responsibility
– Default rules to control agency costs
– However, agency costs are inevitable result of having someone else do your bidding
Agent’s Fiduciary Duties
– Kickbacks (Restatement § 388)
– Secret Profits
– From transactions with principal (Restatement § 389)
– Use of position (Reading v. Regem (1948))
– Usurping business opportunities from principal (Rash (2007))
– “Grabbing and Leaving” (Town & Country)
Duties owed by Principals to Agents?
– Good Faith
– (Commercially unreasonable actions under the circumstances)
– Krispy Kreme example: Forced the franchisees to purchase excess donut mix
Reading v. Regem, UK (1948) p. 69
· UK soldier was transporting people in a lorry in Cairo in a Royal Army uniform when he was off duty, and pocketing the profits. The court held that he breached fiduciary duty to the Crown, and ordered the money be paid to the UK government.
· Rule: An agent has a duty not to acquire a material benefit from a third party in connection with transactions conducted or other actions taken on behalf of principle.
Rash v. J.V. Intermediate, Ltd. (2007) p. 72
· Rash is hired to manage the Oklahoma branch. Given $125,000.00 and 20% of net profits. Two year contract, promises to “devote full work time and efforts”. After two years, Rash forms his own scaffolding business, and JVIC contracts with the scaffolding business for several projects.
· Rule: Subject to any agreement with the principal, an agent has a duty to the principal to act with the care, competence, and diligence normally exercised by agents in similar circumstances.
Note ^: An agent’s duty to the principal is commensurate with the level of skill and specialty. Restatement (Third) § 8.08
Town and Country House v. Newberry, (1958) p. 75
· Cleaning company broke off from former employers and used the list of customers to solicit them for their own business. This is a breach of fiduciary duty.
· Rule: An employee has a fiduciary duty not to use confidential work-related information to benefit themselves.
· Rule: Fiduciary duty to employer extends beyond the duration of employment.
– The law of trade secrets is incorporated as the default rule
– Accordingly, ex-employees may not use a customer list that qualifies as a trade secret
– Exceptions for lawyers, Ethical rules state that Clients have a right to choose their lawyer; therefore, they can choose if they want to leave and follow the lawyer
– Picking majoritarian rules, reduces lawyering costs
– Fiduciary duties are cheap up front, and expensive in litigation
– Contract duties are expensive up front, and cheaper in litigation
Unit 2: Formation and Promoters
Public or publicly held
– E.g., IBM or Microsoft
– Characterized by a public secondary market in which shares of the company are listed or traded
– E.g., NYSE or NASDAQ
Close or closely held
– Characterized by absence of a secondary market for stock
– Often (but not always) a relatively small number of shareholders actively participate in the firm’s management
– May display many characteristics of partnerships
– Some are, in a sense, incorporated partnerships
Types of Corporations
– Physicians, dentists, lawyers, accountants
rized but unissued shares are shares that are authorized by the charter but which have not been sold by the firm.
– Suppose the charter authorizes the firm to issue up to 20,000 common shares. Suppose the firm sells 4,000 shares to investors. At that point it has 4,000 outstanding shares and 16,000 authorized but unissued shares.
– Issuance of Stock
-Board of directors’ prerogative.
– Shareholders involved only if:
– Board wants to sell more shares than are presently authorized in its charter
– Board of directors wants to issue a new class of shares not authorized in the charter
– So long as the charter authorizes the class of shares in question and there are sufficient authorized but unissued shares, the board is free to sell shares for “any valid purpose” as long as the corporation receives adequate consideration for the shares.
– More than 300,000 companies are incorporated in Delaware including:
– 60 percent of the Fortune 500
– 50 percent of the companies listed on the New York Stock Exchange
– No minimum capital requirements
– The need for only one incorporator (a corporation may be the incorporator)
– Favorable franchise tax in comparison to other states.
– For companies doing business outside of Delaware:
– no corporation income tax
– no sales tax, personal property tax or intangible property tax on corporations
– no taxation upon shares of stock held by non-residents and no inheritance tax upon non-resident holders
– A corporation may keep all of its books and records outside of Delaware and may have a principal place of business/address outside of the state of Delaware as well
– Highly competent judiciary in company law and extensive and detailed case law on this subject
Forming a Corporation
– MBCA § 2.01 Incorporators:
“One or more persons may act as the incorporator or incorporators of a corporation by delivering articles of incorporation to the secretary of state for filing.”
– § 2.03 Incorporation
(a) Unless a delayed effective date is specified, the corporate existence begins when the articles of incorporation are filed.
Forming a Corporation
– § 2.02 Articles of Incorporation
(a) The articles of incorporation must set forth:
(1) a corporate name for the corporation that satisfies the requirements of section 4.01;
(2) the number of shares the corporation is authorized to issue;
(3) the street address of the corporation’s initial registered office and the name of its initial registered agent at that office; and
(4) the name and address of each incorporator.
– § 2.02 Articles of Incorporation
(b) The articles of incorporation may set forth;
(1) the names and addresses of the individuals who are to serve as the initial directors;
(2) provisions not inconsistent with law regarding:
(i) the purpose or purposes for which the corporation is organized;
(ii) managing the business and regulating the affairs of the corporation;
(iii) defining, limiting, and regulating the powers of the corporation, its board of directors, and shareholders;
(iv) a par value for authorized shares or classes of shares;