Contracting Out of the Fiduciary Duty of Loyalty: An Empirical Analysis of Corporate Opportunity Waivers

For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few “mandatory” rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the duty of loyalty: the corporate opportunities doctrine. Other states have since followed Delaware’s lead, similarly permitting firms to execute “corporate opportunity waivers.” Surprisingly, more than fifteen years into this reform experiment, no study has attempted to either systematically measure the corporate response to these reforms or evaluate the implications of that response. This Article offers the first broad empirical investigation of the area. Contrary to conventional wisdom, we find that well over one thousand public corporations have adopted waivers – often with capacious scope and reach. The Article thus establishes a central empirical fact that is an important baseline for further discussion: Public corporations have an enormous appetite for contracting out of the duty of loyalty when freed to do so. This analysis also sheds light on the high-stakes normative debate around the relationship between fiduciary principles and freedom of contract. What types of corporations choose to contract around default rules? When they do so, do such measures tend to bolster or thwart shareholder welfare? The Article develops an efficient contracting approach to explain why corporations – and their shareholders – might favor tailoring the duty of loyalty and presents evidence assessing the merits of Delaware’s experiment