Fernan Restrepo & Guhan Subramanian, Non-Corporate Freezeouts: Theory and Evidence, SSRN (July 24, 2024).
Abstract: Corporate freezeouts are subject to enhanced judicial scrutiny in the form of entire fairness review. In contrast, controlling shareholders of non-incorporated business entities can waive the duty of loyalty, which renders entire fairness review unapplicable. Prior scholars have not studied non-corporate freezeouts empirically, even though they constitute approximately one-fifth of total freezeouts by number and one-third by deal volume since 2000. This paper is the first to examine whether the doctrinal difference between corporate and non-corporate freezeouts is associated with different economic outcomes. The results show that minority shareholders receive substantially inferior gains in non-corporate freezeouts than in corporate freezeouts, which suggests that controlling shareholders in fact exploit the heterogeneity in the law. Based on our findings, we argue that courts should continue to enforce fiduciary duty waivers in non-corporate entities, but should continue to police the most egregious behavior in non-corporate freezeouts through a non-waivable duty of good faith and fair dealing.