Two models dominate the debate on the theory of the firm. Under the management-power model, decision-making power exclusively belongs to corporate insiders (officers and directors). The competing shareholder-power model contemplates increasing shareholder power to limit managerial authority. Both models are focused on managerial agency costs and address the appropriate allocation of power between insiders and shareholders to minimize these costs. Both models also assume that insiders and shareholders are engaged in a competitive struggle for corporate power.
Corporate practice has moved on, however. Increasingly, the insider-shareholder dynamic is collaborative, not competitive. This Article traces the development of insider-shareholder collaboration and constructs a taxonomy of the novel collaborative model. It first explains how collaboration originated in the venture capital context and then explores the circumstances surrounding the expansion of collaboration into public companies. Most importantly, corporations today face partial information costs that, for many firms, have grown costlier than agency costs. Using insights from game theory, the Article demonstrates how collaboration promotes the production and aggregation of the partial information of insiders and shareholders, adding value that is lost under unilateral decision-making by either the board or the shareholders.
The growing importance of shareholder collaboration requires rethinking several principles of corporate law. By enhancing shareholder access to information, collaboration creates the risk that shareholders may misuse that information. Similarly, shareholder influence on operational decision-making challenges doctrines that limit the fiduciary obligations of non-controlling shareholders. Finally, both shareholders and insiders may use the collaborative process to engage in collusive behavior or self-dealing.
Fisch, Jill E. and Sepe, Simone M., "Shareholder Collaboration" (2018). Faculty Scholarship at Penn Law. 1996.