Gap Filling in the Zone of Insolvency

Abstract

This paper was written for a symposium - Twilight in the Zone of Insolvency: Fiduciary Duty and the Creditors of Troubled Companies - held at the University of Maryland School of Law. Attacks on shareholder primacy have come from numerous quarters, arguing for expansion of the class of beneficiaries of directors' fiduciary duties. Regarding duties to creditors - the focus of this symposium - a long line of cases has recognized that once a firm is insolvent, creditors should be the primary beneficiaries of directors' fiduciary duties. Then in 1991, Chancellor Allen's famous discussion in Credit Lyonnais identified a special vicinity of insolvency. In that special situation when a firm approaches insolvency, Chancellor Allen suggested, creditors should be included with shareholders in the community of interests to whom directors owe fiduciary duties. Of late, even economically oriented scholars - typically defenders of shareholder primacy - have jumped in to argue for a broader class of beneficiaries. These scholars argue that directors should seek to maximize value not just for shareholders, but for all financial claimants of the firm as a group, and even performance creditors - those owed some contractual performance by the firm. In this Article, I suggest that at least for commercial creditors, fiduciary duties that include such creditors are unnecessary and may be counterproductive. Much of my discussion focuses on bank lending to large companies. Bank creditors' relative sophistication and the nature of their contractual relations with their borrower firms suggest that ex post judicial gap filling should be rare. Bank loans are typically renegotiated well before the borrower firm reaches insolvency, leaving no contract gaps for courts to fill. Other discussion applies to commercial creditors more generally. In particular, the standard justification for including creditors as beneficiaries of directors' fiduciary duties - the fear of excessive risk taking, or overinvestment, by managers of distressed firms - seems a rather weak rationale.