LLM Law Outlines Corporation Outlines
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A. The Business Judgment Rule
Basic Power Structure:
director runs co.,
directors owes duties to shareholders in the manner they run the co.
shareholders elects directors and approve major changes of co.
Conceptual Framework
Agency Costs (of Equity) Paradigm
Conflicts of Interests: how divergent and how important
Financial
Effort
Job Retention
Profitability versus other goals (growth?)
Compensation
Potential Constraints on Conflict
Voting (shareholders or elected board)
Fiduciary Duties (court)
Are constraints effective? For which conflicts? Do they have downsides?
Agency Costs of Equity
Shareholders and directors/managers creates agency costs of equity: managers may pursue their own personal interests, and which may be bad for the shareholders
Constrains effective?
E.g. Andrea, a CEO/ chairperson of a company would rather
Rest than to work long
Raise her own salary
Sell real-estate to co. owned by his brother
Promote people she prefers
oppose a group of shareholders who run against Andrea for election to XYZ's board of directors
approve of a charter amendment making directors removable only for cause
have XYZ sell stock of Alpha Inc. which have a (historic) book value of $5 million, but a market value of $7.5 million
not to have XYZ sell stock of Beta Inc. which have a (historic) book value of $5 million, but a market value of only $2.5 million
How would any of the following factors affect the degree of conflict and/or Andrea's inclination to pursue her own, rather than XYZ's shareholders', interests?
Andrea owns no stock of XYZ
Andrea owns 50% of the stock of XYZ
XYZ has no large shareholder
Bill (who is unrelated to Andrea) owns 51% of XYZ's stock.
The other two directors of XYZ are personal friends of Andrea.
The other two directors of XYZ are CEO's of large companies.
The other two directors of XYZ are personal friends of Bill (from 4 above).
The other two directors of XYZ are XYZ's outside legal counsel and the dean of a law school to which XYZ makes major contributions.
XYZ is in sound financial shape.
XYZ is close to insolvency.
XYZ has two classes of common stock. Voting class A stock, all of which are held by Andrea and non-voting class B stock held by all other shareholders. (In all other aspects, the two classes are identical.)
The Business Judgement Rule, Fiduciary Duties, and Shareholder Suits
Elements: If the decision by board is
Disinterested,
No conflict of interest
Court categories conflict of interest into categories, some are categorized as no conflict of interest
Independent,
Directors were not dependent on somebody else who have a conflict of interest, linked to disinterested (no other person who you are dependent on, who had a conflict of interest)
Informed, and
[Good faith]
Did not used to be an independent element, now starting to develop and still revolving
Court would not intervene such decision
Not required: intelligent
Going to court and arguing that board made a “stupid” decision that resulted in big losses does not get you anywhere.
Court uses business judgment rule in 3 different meanings, depending on the context
Evidentiary presumption (burden of proof on P) Cinerama
‘Independent’ not mentioned, but doesn’t matter
Cinerama: The rule is a rebuttable presumption that directors … acted without self-dealing or personal interest and exercised reasonable diligence and acted with good faith. A party challenging a board of directors' decision bears the burden of rebutting the presumption that the decision was a proper exercise of the business judgment of the board.
Substantive decision rule to certain claims for breach of fiduciary duty courts will not pay much attention to [core meaning] if not rebutted court should not interfere
Gries: If the directors are entitled to the protection of the rule, then the courts should not interfere with or second-guess their decisions.
Cinemara: If a shareholder plaintiff fails to [rebut the BJR presumptions], the business-judgment rule attaches to protect corporate officers and directors and the decisions they make, and our courts will not second-guess these business judgments.
Caveat: For claims other than claims for breach of fiduciary, one does not need to rebut BJR presumptions. Examples
Company declared dividend and paid everyone but me.
Company did not hold annual meeting when required.
“Waste”
Characterization of the legal conclusion that P loses (without the court substantively reviewing the fairness of the board decision) even though P did rebut the presumptions of the Business Judgment Rule
No substantive review = no assessment of the fairness of the transaction
What happen if the Business Judgment Rule is rebutted?
Complicated, Topic of Many More Classes
Generally: Court will make further inquiries as to whether there was a breach of fiduciary duty.
Gries: If a director fails to pass muster as to any one of these three, he is not entitled to the business judgment presumption. This does not mean that the director's decision is necessarily wrong; it only removes the protection provided by the business judgment presumption.
If (merely) “uninformed”, generally inquiry as to whether there was a breach of duty of care.
If interested/ independent is rebutted, inquiry as to whether there was breach of duty of loyalty.
Complications: “informed” considerations are often also relevant when some directors were interested and others are disinterested.
Complications: what about breach “good faith” complicated
This doctrine is guidance of judges’ preferred outcome, reflection of what the court think is right
Unlike normal doctrine, which imposes constrain on the judges’ judgment judges had to follow what doctrine tells them to
Substantively – issue of whether board is informed
Fiduciary duty owed by directors and officers
Shareholders are the parties who benefit from and seek to enforce fiduciary duty
Court should take care to define and...
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