Corporate opportunity doctrine
|Corporate opportunity doctrine|
The corporate opportunity doctrine is a legal principle, that derives from duty of loyalty, that informs that employees should not harm the corporation in any way and expects them to always act in the best interests of the corporation to the best of their abilities(Corporate Opportunity Doctrine,2019). The corporate opportunity doctrine prohibits director or an officer of a corporation from turning-away a business proposal or opportunity presented to or belonging to, himself, corporation or other affiliates. In the context of joint-venture, a member of the venture owes to the other member a fiduciary duty to not usurp beneficial opportunities that rightfully belong to the joint venture (J. Leo Johnson, Inc. v. Carmer,(1959)).
The court must analyze a few factors to decide whether something is a corporate opportunity or not. These elements include(Jennifer Ying, (2009)):
- If the corporation would be able to accept this proposal based on the financial situation,
- If the corporation is in the same line of business as the opportunity,
- Whether the corporation had an expectancy or interest in opportunity,
- Whether taking the opportunity would be a breach of fiduciary duties or it could create a conflict of interest between the directors and officers (Jennifer Ying, (2009)).
Theoretical Example of Opportunity
A very interesting example is shown by the Law Offices of Stimmel, Stimmel, and Smith and it reads as follows: "Assume you are a sales manager for Company X which sells oranges. Assume you discover that a vendor of oranges is in economic trouble and willing to sell the product for a fifty percent reduced price. The company you work for has sufficient funds to purchase the oranges and customers waiting to buy them.
You cannot purchase the oranges for your account. You cannot refer the vendor to another entity and hope to receive a commission or some other benefit. You cannot purchase the oranges and resell them to your entity for a markup.
The reduced price oranges are a corporate opportunity and if the fiduciary takes it he or she may be personally liable to the corporation for the lost benefit." (Corporate Opportunity Doctrine,(2019))
Remedies for appropriation
What are the applicable remedies for found liabilities ?
Remedies can be equitable or legal. Most corporate opportunity cases lean to be gains-based and aim for the monetary remedy. "The presumptive remedy for such a breach is the imposition of a constructive trust on the disputed enterprise, effectively disgorging all of the fiduciary’s verifiable profits"(Talley E,Hashmall M, (2001)). It is very common for courts to reserve some of the profits for the event of breaching fiduciary. When the appropriation is considered to be particularly vicious or in bad faith, punitive damages could be applied.
In the words of Eric Talley and Mira Hashmall : "In terms of Figure 1, a fiduciary might have breached by completely failing to disclose (node X1) or by disclosing but failing to secure proper rejection before pursuing the project (node X2). Regardless of this path, most courts tend to impose a constructive trust on a breaching fiduciary as a default measure of damages. The likelihood of punitive damages, however, appears to be greater for appropriation following nondisclosure than it is for appropriation following full disclosure but absent refusal by the firm" (Talley E,Hashmall M, (2001)).
- Chew P.K., (1989), Competing Interests in the Corporate Opportunity Doctrine, "North Carolina Law Rieview", 67, 2,
- Corporate Opportunity Doctrine, (2019),
- J. Leo Johnson, Inc. v. Carmer, (1959),
- Jennifer Ying, (2009) Guth v. Loft: The Story of Pepsi-Cola and the Corporate Opportunity Doctrine,
- Loft v. Guth, (2019)
- Olinsky E.G,(1999), Corporate Oppportunity Doctrine And Intrested Director Transactions: A Framework For Analysis In An Attempt To Restore Predictability, "Delaware Journal of Corporate Law",
- Rauterberg G, Talley E, (2017), Contracting Out of the Fiduciary Duty of Loyalty: An Empirical Analysis of Corporate Opportunity Waivers, University of Michigan Law School
- Slaughter J.F., (1964), The Corporate Opportunity Doctrine, "SMU Law Review", 18, 1
- Talley E,Hashmall M, (2001), The Corporate Opportunity, "USC Gould School of Law".
Author: Gabriela Zabawa