Seis Graus de Separação: das ações derivativas às ações coletivas de acionistas
| Autor | Ángel R. Oquendo |
| Cargo | University of Connecticut School of Law, State of Connecticut, USA |
| Páginas | 37-74 |
Six Degrees of Separation: from derivative suits to
shareholder class actions
Seis Graus de Separação: das ações derivativas às ações coletivas de acionistas
Ángel R. Oquendo
University of Connecticut School of Law – State of Connecticut, USA
Abstract: trans-individual litigation has
revolutionized modern law. Specifically,
corporate law has partaken in this phenomenon.
For instance, derivative suits allow individuals to
sue for a large collectivity in relation to corporate
matters. This paper aims to analyze this
derivative suits, comparing then to shareholder
class actions, explaining that the two procedures
resemble each other only superficially and that
they diverge from each other on a more profound
level. Derivative suits aim at the vindication
of a genuinely collective and indivisible right,
while shareholder class actions seek to enforce
an aggregation of individual entitlements.
Consequently, these mechanisms also differ
in the kind of representation they entail, in the
objective they pursue, in how they construct
fairness internally, and in how they approach the
central problem of adequacy of representation.
An appreciation of this dichotomy contributes to
an understanding not only of the inner workings
of each of these two devices but also of the
corporation itself and of the relationship among
the corporate entity, the board of directors, the
investors, and even the stakeholders. In addition,
it suggests the need for a new interpretation of
the key distinction between both actions one
should focus on the nature of the right at stake.
Keywords: Trans-individual Litigation.
Derivative Suits. Shareholder Class Actions.
Resumo: as ações transindividuais revoluciona-
ram o direito contemporâneo. Especificamente,
o direito empresarial tomou parte neste fenôme-
no. Por exemplo, na ação derivativa, indivídu-
os – os acionistas – estão legitimados a litigar
em nome de uma coletividade, em relação a
assuntos da corporação. O objetivo deste artigo
é analisar essa ação derivativa, comparando-as
com as ações coletivas de acionistas em geral,
explicitando que os dois procedimentos detêm
apenas similitudes superficiais, mas divergem
em nível mais profundo. A ação derivativa obje-
tiva a proteção de um genuíno direito coletivo e
indivisível, enquanto as demais ações coletivas
de acionistas asseguram uma agregação de di-
reitos individuais. Consequentemente, diferem
na forma de representação, sobretudo em sua
adequação, na equidade interna do procedi-
mento e no objetivo que perseguem. O estudo
dessa dicotomia contribui não só na compre-
ensão dessas duas formas de processo, mas no
entendimento da própria corporação e a relação
entre ela e a sua diretoria, investidores e mes-
mo os demais stakeholders. No mais, sugere-se
a necessidade de uma nova interpretação para a
distinção entre as citadas ações, considerando a
natureza do direito em jogo.
Palavras-chave: Litígios Transindividuais.
Ações Derivativas. Ações Coletivas de Acionistas.
Recebido em: 09/06/2016
Revisado em: 12/07/2016
Aprovado em: 19/07/2016
http://dx.doi.org/10.5007/2177-7055.2016v37n73p37
38 Seqüência (Florianópolis), n. 73, p. 37-74, ago. 2016
Six Degrees of Separation: from derivative suits to shareholder class actions
1 Introduction
Trans-individual litigation has revolutionized modern law. It has
radically altered the manner of assertion and adjudication of legal claims.
Beyond concerning a large number of people, the underlying suits operate
in a unique fashion. In particular, they call for the constant protection of
the interests of the parties on whose behalf the plaintiffs purport to speak.
Not surprisingly, corporate law has partaken in this phenomenon.
For instance, derivative suits allow individuals to sue for a larger
collectivity, somewhat along the lines of the citizen suits established over
a century later. Of course, they turn on the claims of the corporation,
rather than those of the society as a whole. Likewise, stockholders have
deployed the class action, since its inception, to aggregate their claims
specifically against the corporate entity or the board of directors.
This Article will concentrate on derivative suits and shareholder
class actions. It will ultimately contend that the two procedures resemble
each other only superficially and that they diverge from each other
on a more profound level. Most significantly, derivative suits aim at
the vindication of a genuinely collective and indivisible right, while
shareholder class actions seek to enforce an aggregation of individual
entitlements. Consequently, these mechanisms also differ in the kind
of representation they entail, in the objective they pursue, in how they
construct fairness internally, and in how they approach the central
problem of adequacy of representation.
An appreciation of this dichotomy contributes to an understanding
not only of the inner workings of each of these two devices but also of the
corporation itself and of the relationship among the corporate entity, the
board of directors, the investors, and even the stakeholders. In addition,
it suggests the need for a new interpretation of the key distinction, ever-
present in the case law, between derivative and direct corporate claims.
Accordingly, in order to distinguish the former from the latter, courts
should focus, first and foremost, on the nature of the right at stake,
following the path delineated in Part IV. At the end of the day, by grasping
Seqüência (Florianópolis), n. 73, p. 37-74, ago. 2016 39
Ángel R. Oquendo
the difference between derivative suits and shareholder class actions, one
gains invaluable insights into group rights generally.
Part II will evoke an initial view, according to which the two
procedures at stake as coincide in their essence and differ only in their
technical details. Part III, in turn, will propose an alternative conception,
according to which the two devices converge only formally, yet diverge
critically. Finally, drawing on this second outlook, Parts IV and V will,
respectively, recast the distinction between derivative and direct suits and
re-conceptualize collective entitlements.
2 An Initial View
On first impression, one might view derivative suits and shareholder
class actions as essentially similar. In particular, one might regard them as
collective procedures that similarly serve to vindicate the group rights of
stockholders. Accordingly, both procedural devices allow one or several
corporate investors to litigate on behalf of the collectivity.
Someone taking this approach might maintain that these two types
of litigation similarly seek to correct managerial failure. She might add
that the judge must simply resolve a dispute as to whether the managers
indeed failed to protect the entitlements of the shareholders. Thus
construed, both procedural mechanisms resemble each other not only in
how they operate but also in what they ultimately pursue.
From this perspective, derivative suits and shareholder class actions
enable, along parallel lines, an extraordinary alteration in the status quo to
take place. Specifically, they empower an individual investor to displace
the directorate as the speaker for shareholders as a group, whether
conceived as the corporation itself or as a self-standing class. Ordinarily,
the board possesses the prerogative to speak for the corporate entity and
to care for the stockholders’ economic well-being.
The relevant procedural parameters tend to reinforce this standpoint.
For instance, Rule 23.1 of the Federal Rules of Civil Procedure empowers
“[…] one or more shareholders […] to bring a derivative action to enforce
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