Federal Antitrust Law – Stockholders’ Remedies for Corporate Injury Resulting from Antitrust Violations: Derivative Antitrust Suit and Fiduciary Duty Action

The question of what remedies are available to a stockholder whose corporation has been injured or is threatened with injury by acts violative of the federal antitrust laws is largely unexplored. The staggering fines suffered by a number of corporations in the recent electrical industry criminal antitrust convictions demonstrate, however, that the question is both timely and important. Moreover, its answer could have a great impact both upon the means of protecting corporate minority rights and upon the means of private enforcement of the federal antitrust laws. The stockholders’ derivative suit affords two remedies which deal with these two points respectively. There are two general types of derivative action. One lies where the corporation has a right of action against any party, within or without the corporate structure, but is unable or unwilling to assert that right. This form of derivative suit could be brought under the federal antitrust laws for the various forms of relief specified therein against any party, either within or without the corporation, whose violation of those laws injures the corporation. The second type of derivative action lies when any of those persons in control of the corporation act inimically to its interests, in breach of their :fiduciary duties to the corporation, to hold them personally liable to it for the injuries resulting therefrom. Such a derivative suit could be brought against directors or officers of the corporation to hold them personally liable to it for injuries it sustains by reason of their having violated or caused the corporation to violate the federal antitrust laws in breach of that fiduciary duty, or to restrain such violations. It is with these two actions that this comment is concerned.