Gouvernance

Intéressant ce que relaie le Time. Il y a un des candidats à l’élection présidentielle américaine a invoqué le devoir fiduciaire pour justifier les politiques d’évitement fiscales qu’il a mises en œuvre pendant de nombreuses années : « Donald Trump’s ‘Fiduciary Duty’ Excuse on Taxes Is Just Plain Wrong ». Qu’en penser ? Pour la journaliste Rana Foroohar, la réponse est claire : « The Donald and his surrogates say he has a legal responsibility to minimize tax payments for his shareholders. It’s not a good excuse ».

It’s hard to know what to say to the New York Times’ revelation that Donald Trump lost so much money running various casino and hotel businesses into the ground in the mid-1990s ($916 million to be exact) that he could have avoided paying taxes for a full 18 years as a result (which may account for why he hasn’t voluntarily released his returns—they would make him look like a failure).

But predictably, Trump did have a response – fiduciary duty made me do it. So, how does the excuse stack up? Does Donald Trump, or any taxpayer, have a “fiduciary duty,” or legal responsibility, to maximize his income or minimize his payments on his personal taxes? In a word, no. “His argument is legal nonsense,” says Cornell University corporate and business law professor Lynn Stout,

À la prochaine…

Ivan Tchotourian

Le blog de l’Université d’Oxford relaie ce papier de Deborah A. DeMott : « Fiduciary Contours: Perspectives on Mutual Funds and Private Funds » du 22 août 2016. Excellente étude sur les devoirs fiduciaires des gestionnaires et la protection des investisseurs-consommateurs !

My paper,  written for a forthcoming book focused on research concerning mutual funds, examines the content, scope, and function of the fiduciary duties owed by investment managers, drawing in particular on contrasts between mutual (or public) funds and private funds (principally hedge funds and private equity funds). The paper surveys the relevant regulatory architectures as well as private-law duties of loyalty. The paper also develops more specific contrasts between mutual funds and private funds concerning principal transactions, fees, fund governance, and regulatory frameworks for internal compliance. The thesis of the paper is that in the mutual-fund context, the specifics of fiduciary duty reflect distinctive and hybrid qualities of this form of investment in securities, conventionally understood to involve an investment company that issues shares to public investors as well as a highly prescriptive regulatory structure, embodied in the United States in the Investment Company Act of 1940. The Investment Company Act, an exemplar of a ‘rules-based’ regulatory regime, addresses many potential breaches of fiduciary duties through prescription, for example, by prohibiting principal transactions, those between the fund itself and its manager or between the fund and the manager’s affiliates.

In contrast, fiduciary duties in the private-fund context exemplify a ‘principles-based’ regime, embodied in the not-so-prescriptive structure of the Investment Advisers Act of 1940, which applies to fund managers required to register with the SEC as investment advisers. In this less prescriptive realm, fiduciary duties are harder to assess, at least in part because many private-fund managers until recently operated behind a thick veil of opacity.

À la prochaine…

Ivan Tchotourian