트래킹주식과 이사의 의무 - 미국에서의 논의를 중심으로 -

Abstract

Till lately, diversified corporations have increasingly turned to tracking stocks to uncouple high-growth business, especially Internet-related operations, from more static business entities. Tracking stock is a unique type of common stock that represents an interest in the financial performance of particular business groups within a diversified parent corporation. However, the tracked business groups are not independent of the parent corporation, and the parent's board of directors still governs the affairs of each business group. This creates unique conflicts for directors who must please multiple group of stockholders whose interests are not always consistent. Courts have not announced a clear standard for dealing with directorial duties in the tracking-stock context. The three existing legal standards of corporate governance ― the traditional fiduciary analysis, a contractual approach, and an entire-fairness evaluation ― are individually inadequate when applied to the unique directorial conflicts arising in corporations with tracking stock. This paper argues that courts should apply different standards of review to directorial decisions involving tracked business groups depending upon the nature of the transaction. Where the directorial decision involves primarily contractual arrangements, such as the repurchase of stock or the payment of dividends, court should not grant tracking stockholders fiduciary protections. If the decision involves the allocation of corporate opportunity or resources, courts should apply the fiduciary principles of care and loyalty, ensuring that directors do not have a material self-interest in the transaction. Finally, if the directorial decision involves inter-group dealings, courts should require directors to demonstrate the entire fairness of the transaction regardless of whether the board was interested in the transaction.