Tuesday, November 24, 2009
Posted by D. Daniel Sokol
Stephen Kinsella (Sidley Austin) & Anouck Meier (Sidley Austin) argue Why Shareholders Should Not Share the Blame in the EU.
ABSTRACT: Should an independent shareholder which is not itself a party to an antitrust infringement be held liable for the misconduct of a company it jointly owns?
The question might raise eyebrows of practitioners in other jurisdictions, such as the United States, where corporate separateness prevails as a general rule and the proverbial corporate veil can be pierced only as an “extreme remedy.” For European counsel and their clients, however, the question has become highly relevant and any nervousness on their part seems justified. The European Commission (“Commission”) seems to have adopted an ever-expanding theory of “liability by association.” In addition to parents of wholly-owned subsidiaries and partners in general partnerships, shareholders in jointly-owned companies increasingly find themselves in the line of fire.