Minnesota Law Review

The “Duty” To Be a Rational Shareholder

How and when do courts determine that corporate disclosures are actionable under the federal securities laws?  The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important.  Through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, Professor Hoffman concludes that judicial finding of immateriality are remarkably common, and have been stable over time.  Materiality’s scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a reasonable investor.  Thus, materiality provides an ideal lens through which to examine courts’ understanding of behavioral psychology and how the insights of the discipline should inform legal decision making.

Significantly, judges have shifted from standards-based to bright-line tests over time, increasingly imposing on investors a duty to behave in economically rational ways in response to corporate disclosures, or risk losing the benefit of legal protections from securities fraud.  From this shift, Professor Hoffman derives a duty to act as a rational shareholder, attaching to every investor in the public capital markets.  Because experimental evidence suggests that women and minorities have different financial risk preferences than white men, courts’ applications of this duty may result in privileging white, male investors at the expense of all others.  Finally, the very existence of duty attaching to mere share ownership has the potential to significantly change the way we evaluate those corporate governance models that assume shareholder passivity.

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