My Business Associations class has been discussing piercing the corporate veil. Every time I return to this material, I’m struck by how intellectually vacuous the doctrine in this area is.
Some of the factors courts consider in piercing have an obvious policy tie to the question at issue: whether the corporation’s creditors should be able to recover from one or more of the shareholders. Undercapitalization, for instance, can have an obvious effect on the corporation’s ability to pay creditors. There’s an argument that consensual creditors should protect themselves from any undercapitalization that exists at the time the debt is incurred, but at least there’s a tie between undercapitalization and harm to the creditors. The same thing can be said for transfers of funds from the corporation to the shareholder after the obligation is incurred. The harm to the creditors is obvious and, in the case of post-obligation transfers, the self-protection argument is more difficult.
The factor that doesn’t seem to make sense is failure to follow corporate formalities. In most cases, you cannot establish a causal link between the failure to follow corporate formalities and the creditor’s loss. The creditor’s position is no worse because, for instance, the corporation didn’t hold regular board meetings or keep minutes of those meetings.
I understand the penalty argument—if you want a corporation, you have to comply with the rules for operating one, or we will penalize you. But it’s a very uneven penalty. Successful corporations are never penalized, no matter how blatantly they fail to follow corporate formalities. They are able to pay their bills, so veil-piercing isn’t usually an issue. Only corporations that fail to follow corporate formalities and are not successful are penalized.
This is why I advocate Abolishing Veil Piercing:
The corporate law doctrine of limited liability has been much written about, but veil piercing as such has gotten far less academic scrutiny. This article addresses that lacuna, offering a doctrinal and economic analysis of veil piercing. It concludes that veil piercing cannot be justified and, accordingly, advocates abolishing the doctrine. The standards by which veil piercing is effected are vague, leaving judges great discretion. The result has been uncertainty and lack of predictability, increasing transaction costs for small businesses. At the same time, however, there is no evidence that veil piercing has been rigorously applied to effect socially beneficial policy outcomes. Judges typically seem to be concerned more with the facts and equities of the specific case at bar than with the implications of personal shareholder liability for society at large. Veil piercing thus has costs, but no social pay-off.
Veil piercing tries to do too much. Allocating liability within a corporate group controlled by a publicly held corporation involves far different policy considerations than does holding liable the individual shareholders of a closely held corporation. These tasks should be unbundled. Intra-corporate group liability issues should be dealt with as a species of enterprise liability, while the liability of individual shareholders is the proper subject of veil piercing law.
So defined and delimited, the survival of veil piercing is difficult-if not impossible-to defend. A standard academic move treats veil piercing as a safety valve allowing courts to address cases in which the externalities associated with limited liability seem excessive. In doing so, veil piercing is called upon to achieve such lofty goals as leading shareholders to optimally internalize risk, while not deterring capital formation and economic growth, while promoting populist notions of economic democracy. The task is untenable. Veil piercing is rare, unprincipled, and arbitrary. Abolishing veil piercing would refocus judicial analysis on the appropriate question-did the defendant-shareholder do anything for which he or she should be held directly liable. Did the shareholder commit fraud, which led a creditor to forego contractual protections? Did the shareholder use fraudulent transfers or insider preferences to siphon funds out of the corporation?
