Special Meetings and Consent Solicitations: How the Written-Consent Right Uniquely Empowers Shareholders

Despite a decline in companies’ takeover defenses, provisions barring shareholders from acting by written consent remain intact. A key reason that these antitakeover provisions persist rests in the widely held view that giving shareholders the right to act by written consent would not increase their power over the company’s management as long as shareholders already have the right to call a special meeting. This Note argues that this view is wrong. The written-consent right does uniquely empower shareholders.

That power results not from what the right allows shareholders to do but from what it prevents boards from doing without shareholder consent.