ProfessorBainbridge.com

The Securities and Exchange Commission Amends the Shareholder Proposal Rule

The SEC today announced adoption of a final rule making important—and, in my opinion—long overdue changes to Rule 14a-8 (the shareholder proposal rule).

Before today's amendments, under Rule 14a–8(b)(1), a shareholder-proponent must have owned at least 1% or $2,000 (whichever is less) of the issuer’s voting securities for at least one year prior to the date on which the proposal is submitted. Per Rule 14a–8(c), the proponent may only submit one proposal per corporation per year. The proponent may continue to submit the same proposal to the same firm year after year in the hopes that it will eventually be adopted by the shareholders, provided the proposal annually receives a specified level of support. Under Rule 14a–8(d), a proposal and any accompanying supporting statement may not exceed 500 words in length.

There are a number of substantive grounds on which a proposal may be excluded from the company's proxy statement, which I detail in my book Corporate Law (Concepts and Insights).

Absent Rule 14–8, there would be no vehicle for shareholders to put proposals on the firm’s proxy statement. Shareholders’ only practicable alternative would be to conduct a proxy contest in favor of whatever proposal they wished to put forward. The chief advantage of the shareholder proposal rule, from the perspective of the proponent, thus is that it is cheap. The proponent need not pay any of the printing and mailing costs, all of which must be paid by the corporation, or otherwise comply with the expensive panoply of regulatory requirements.

As I explained in my article, Revitalizing SEC Rule 14a-8’s Ordinary Business Exclusion: Preventing Shareholder Micromanagement by Proposal, 85 Fordham L. Rev. 705 (2016):

The shareholder proposal rule long was a tool mainly of gadflies and social activists. Shareholder proposals were rare and almost uniformly defeated by wide margins. The process thus “amounted to little more than a nuisance for corporate management.” Much of the law governing shareholder proposals developed during this period in which the stakes were low.

In contrast, today the stakes are quite high. The volume of shareholder proposals has increased dramatically over the last two decades. Proponents are no longer just gadflies and social justice warriors, but rather now include major institutional investors such as hedge funds and union and government pension funds. Although most proposals still fail to receive majority shareholder support, a growing number do. This is true not only for laggard firms, but increasingly even for successful ones. As a result, all corporate directors and managers now must take shareholder proposals quite seriously.

Simultaneously with the rising volume of proposals came a dramatic shift in their subject matter. Historically, most shareholder proposals focused on issues of corporate social responsibility. Over the last two decades, however, a growing number of proposals focused on corporate governance questions. Today, many proposals address issues traditionally regarded as board or management prerogatives, as a substantial number effectively seek to manage or even micromanage corporate decisions. This shift has become especially prominent in the growing use of shareholder proposals by hedge funds seeking to effect changes in management personnel or corporate strategy of targeted companies.

Rule 14a-8 was never intended to permit shareholders to micromanage a corporation.

But that is, increasingly, what activist shareholders are trying to use it to do.

The SEC's Adopting Release is best described as prolix. One hundred and ninety five pages to adopt amendments that total four and a half pages. As those who labor in this vineyard know, however, the SEC was reprimanded by courts repeatedly in the years 2005-2012 for adopting rules without a sufficient evidentiary basis and/or a sufficiently detailed cost-benefit analysis:

The United States Court of Appeals in the District of Columbia, the country’s most important administrative law court, has told the S.E.C. that it has a “statutory obligation to determine as best it can the economic implications of the rule.” Between 2005 and 2012, the court consistently reversed the agency for not conducting an adequate cost-benefit analysis of the rules it proposed.

The court said, for example, that the S.E.C. had “inconsistently and opportunistically framed the costs and benefits” of its 2010 proxy access rule, a major agency initiative, and had “failed adequately to quantify the certain costs or to explain why those costs could not be quantified.” For a 2005 mutual fund governance regulation, the agency had failed to adequately apprise itself of “the economic consequences of a proposed regulation before it decided whether to adopt the measure.”

Of late, the SEC has been trying to avoid that problem by explaining its actions at interminable length.

In any event, the amendments make several key changes—almost all procedural, rather than substantive—that limit who can make proposals but do not change the subject matters to which proposals can be addressed:

• Amend the criteria that a shareholder must satisfy to be eligible to have a proposal included in a company’s proxy statement. A shareholder now must demonstrate continuous ownership of at least:
  
  • $2,000 of the company’s securities entitled to vote on the proposal for at least three years;
  • $15,000 of the company’s securities entitled to vote on the proposal for at least two years; or
  • $25,000 of the company’s securities entitled to vote on the proposal for at least one year.
  • Aggregation of holdings for purposes of meeting the ownership requirements will no longer be permitted.
• Modify the rule limiting the number of proposals that may be submitted for a particular company’s shareholders’ meeting (the “one-proposal rule”) to establish that a single person may not submit multiple proposals at the same shareholders’ meeting, whether the person submits a proposal as a shareholder or as a representative of a shareholder.
  • Under the existing rule, some activists tried to get around the one proposal per company limit by advancing a proposal in their own name while advancing a second proposal purportedly while acting as a representative of another shareholder. The change shuts down that loophole.
• The proponent must state in writing that it is available to meet with company management (at the latter's option) at specified times not less than 10 days or more than 30 days after the proposal is submitted.
  • This is purported to increase the likelihood of shareholder-management engagement.
• Revise the levels of shareholder support a proposal must receive to be eligible resubmit the same proposal at the same company’s future shareholders’ meetings.
  • A shareholder proposal will be excludable from a company’s proxy materials if it addresses substantially the same subject matter as a proposal, or proposals, previously included in the company’s proxy materials within the preceding five calendar years if the most recent vote occurred within the preceding three calendar years and the most recent vote was:
    • Less than 5 percent of the votes cast if previously voted on once;
    • Less than 15 percent of the votes cast if previously voted on twice; or
    • Less than 25 percent of the votes cast if previously voted on three or more times.

Predictably, these rather modest changes have produced ferocious complaints from activist shareholders and their allies in both the academy and politics.

Consider, for example, the complaints from SEC Commissioner Allison Herren Lee (Democrat):

Letters in opposition to these changes vastly outnumber those in support and evidence a stark division of views between shareholders and management.

It is true that the activist community put together a massive astroturf campaign to oppose the changes, but so what? The SEC doesn't take polls to decide public policy.

... in connection with smaller shareholders, Main Street investors, who will be dramatically disadvantaged by the changes we adopt today.

Nonsense. First, the previous $2,000 limit was adopted in 1998 and has never been adjusted for inflation:

Under the new rule, as long as the shareholder is a long-term investor, you actually need a smaller investment—in real dollars—than you did in 1998.

In addition, the thresholds are set so low that owners of minuscule percentage of a company's stock get to force a vote on their pet proposal:

While Commissioner Lee purportedly is concerned for the poor investor who must cobble together a few thousand dollars to make a proposal (at the company's expense), she knows full well that many—if not most—meaningful and substantive proposals these days come from certain subsets of institutional investors—"socially responsible" investment funds, religious investment funds, union pension funds, and the like— who typically hold many times the required amount of stock.

I must assume that Commissioner Lee also knows, although she doesn't admit it, that the retail investors who do use the shareholder proposal are three longstanding gadflies who have abused the system for years (charts from Proxy Monitor):

In fact, when you break it down, basically what Ms. Lee is doing here is protecting one person:

John Chevedden is an interesting fellow. In any case, however, add in his less vigorous compatriots, Ken Steiner and James McRitchie, and the three of them "sponsored 38% of all shareholder proposals."

Why is Commissioner Lee so bound and determined to ensure that these three hobbyists get to keep being gadflies with no skin in the game? 

The prospect of an Amy Comey Barrett nomination to the Supreme Court has unhinged both right- and-left wing anti-Catholic bigots

I think we can reasonably debate such things as:

• Is the Supreme Court too powerful in US life?
• Is it hypocritical for the GOP to nominate someone now after blocking Merrick Garland?
• Is it hypocritical for the Democrats to invoke Garland as a precedent for doing nothing now?
• Does the nominee (if there is one) have the proper legal skills and judicial temperament?

But what I will not put up with is the sort of modern Know-Nothingism being spewed over on Twitter and in some corners of the media at the mere possibility that Amy Comey Barrett might be the nominee. It's proving once again that anti-Catholicism is the last acceptable prejudice.

This good and decent person is being branded a "Catholic fascist," a harbinger of The Handmaid's Tale becoming real, "the Catholic version of Dolores Umbridge," and even worse. Much worse.

It's not just the left. Ann Coulter moronically asks: ""Would her ... idiosyncratic view of the vast deference Catholics owe the pope on political issues...lead to the ongoing influx of immigrants who overwhelmingly vote for pro-choice candidates?"

Towards a Navy Corps of Nuclear Power Engineering: Operationalizing NuScale's small modular nuclear reactor plant

There's a really interesting article in today's WSJ about NuScale's small modular nuclear reactor plants:

... the same folks who fought nuclear energy tooth and nail are now complaining that it’s too expensive—like saying they’re orphans after killing their parents.

I mention all this now because earlier this month, and almost miraculously, the Nuclear Regulatory Commission approved the design and issued a final safety evaluation report for a Small Modular Reactor, or SMR, by NuScale based in Portland, Ore. NuScale’s design, funded by engineering firm Fluor and the U.S. Energy Department, joins six older federally approved designs. But it’s the first that looks as if it can scale and reduce costs. ...

The NuScale reactor is smaller—only 65 feet tall and 9 feet in diameter, with much installed below grade. It has a really small core, 1/20th the size of larger reactors, and, importantly, it comes with passive safety features. Using buoyancy, water circulates internally without pumps. Motors lift the control rods such that if electricity is lost, gravity drops them back into the core, stopping the reactor. Safety first.

Each SMR can generate 60 megawatts of power, and a dozen can be linked together at one site. California’s recent blackouts were from a shortage of 4,000 megawatts of power, so only six SMR groupings could have solved the problem, carbon free.

That article got me to thinking about a column I wrote for TCS Daily back in 2010 or so. I had to dig it out of the Wayback Machine archives and offer it up here.

Almost since its founding, the Army Corps of Engineers has had a major domestic, peace-time function in civilian civil works projects. So there is a precedent for having the military run such projects.

I got to thinking about that precedent when I read Bradford Plumer's TNR post, which notes that:

Obama wasn't kidding when he gave all those shout-outs to nuclear power in his State of the Union address on Wednesday. According to Bloomberg, Obama's 2011 budget will request $54 billion in loan guarantees for new nuclear reactors—triple the previous amount.

I'm inclined to agree with Andrew Sullivan that "There's no way to tackle our carbon addiction without nuclear energy as part of the solution." But I also appreciate Plumer's observation that "the case against comes from the Union of Concerned Scientists, which argues that big nuclear projects have historically been very risky—prone to delays and cost overruns—and that the default rate on these loans can be quite high, sticking taxpayers with the bill. Instead, says UCS, it'd be better to direct that money toward cheaper, more reliable options for reducing emissions—efficiency or waste-heat capture or even wind power."

I've got a better idea. The WSJ reported in September of last year that:

 

Babcock & Wilcox, a unit of McDermott International, has designed a small 125-megawatt reactor that would be built at its U.S. factories and then delivered to power-plant sites by rail or barge. This would eliminate a bottleneck and the associated higher costs for ultra-heavy forgings that are required for large reactors. Small reactors could be built at a number of domestic heavy-manufacturing sites. The Lynchburg, Va., company has been building small reactors and other key components for Navy ships for decades, at plants in Indiana and Ohio.

Another plus of small reactors: They're designed to be refueled less frequently, reducing the number of refueling outages. Instead of every 18 months to two years, they could go four or five years, reaping a saving from having less down time. Another feature of some reactors is the ability to do more maintenance while plants are running, again reducing idle time.

... critics say that the economics of small plants simply don't work: The licensing costs are so great for nuclear plants, somewhere between $50 million and $100 million per site, and security and construction costs are so high that the economics work only for big plants, with lots of output, so costs can be spread over many kilowatt-hours of electricity.

So here's where my idea comes into play. The Navy already operates dozens of small nuclear reactors in aircraft carriers and submarines, with an outstanding record of safety and reliability. They have an established training program that churns out nuclear-capable officers.

By analogy to the Army Corps of Engineering, we could create a Navy Corps of Nuclear Engineering. It would build and operate dozens of small nuclear power plants around the country. To address security concerns, the first plants would be built on military bases, where the garrison can provide security. Licensing costs would be cut because the government would own and operate the plants.

The proposal should not offend small government sensibilities. Nuclear power is rife with market failures (and government failures). Huge research and development costs associated with traditional large scale nuclear power plants may be beyond the ability of private firms to finance. In addition, we know that private firms tend to underproduce the sort of basic R&D necessary to develop new generations of power plants. But the Navy already spends money to develop new naval reactors, which presumably could be scaled up at reasonable costs. Since the Navy need not worry about earning market competitive rates of return on its investment in R&D, moreover, there's no economic disincentive to conducting that sort of R&D in the Navy.

Private utilities are subject to state utility regulators who notoriously meddle, typically to "protect" consumers from rate increases, but usually with the outcome of making plants nonprofitable. A federal Naval Corps of Nuclear Engineering presumably would be outside the scope of state regulation.

Private utilities used cost-plus contracting when building nuclear power plants--with all its notorious problems--because there were serious problems of incomplete information when dealing with large scale, non-standardized plants. Smaller, standardized plants should be amenable to fixed price contracts.

Private parties have a hard time adequately insuring against very low probability but very high magnitude events. Since the taxpayer likely would ultimately be on the hook anyway, why not have the government own the plant and self-insure? And profit from selling electricity?

Another advantage of my proposal is that lots of military bases are brown field sites that would require mega-investments in environmental cleanup before being converted to civilian use. So why not build a nuclear plant there?

So I'd say Obama's half right. Oddly, however, this time I think his problem is that he's leaning too much on the private sector. The Navy knows how to run small nuclear reactors. Small nuclear reactors are the future of the industry. Why not put them together?

*****

Glenn Reynolds has had several relevant posts. #1:

MARK WHITTINGTON: “To paraphrase a line often made by Instapundit’s Glenn Reynolds, they told me that if I voted for John McCain we would see a massive push for nuclear power—and they were right! It seems that President Obama has embraced nuclear energy.”

#2:

WILL COLLIER: When It Comes To Nuclear Power, Companies Should Think Small.

The latter is especially relevant to the discussion here, as Collier argues small scale reactors are cheaper and safer than the traditional mega-monsters.

There's a really interesting article in today's WSJ about NuScale's small modular nuclear reactor plants:

... the same folks who fought nuclear energy tooth and nail are now complaining that it’s too expensive—like saying they’re orphans after killing their parents.

I mention all this now because earlier this month, and almost miraculously, the Nuclear Regulatory Commission approved the design and issued a final safety evaluation report for a Small Modular Reactor, or SMR, by NuScale based in Portland, Ore. NuScale’s design, funded by engineering firm Fluor and the U.S. Energy Department, joins six older federally approved designs. But it’s the first that looks as if it can scale and reduce costs. ...

The NuScale reactor is smaller—only 65 feet tall and 9 feet in diameter, with much installed below grade. It has a really small core, 1/20th the size of larger reactors, and, importantly, it comes with passive safety features. Using buoyancy, water circulates internally without pumps. Motors lift the control rods such that if electricity is lost, gravity drops them back into the core, stopping the reactor. Safety first.

Each SMR can generate 60 megawatts of power, and a dozen can be linked together at one site. California’s recent blackouts were from a shortage of 4,000 megawatts of power, so only six SMR groupings could have solved the problem, carbon free.

That article got me to thinking about a column I wrote for TCS Daily back in 2010 or so. I had to dig it out of the Wayback Machine archives and offer it up here.

Almost since its founding, the Army Corps of Engineers has had a major domestic, peace-time function in civilian civil works projects. So there is a precedent for having the military run such projects.

I got to thinking about that precedent when I read Bradford Plumer's TNR post, which notes that:

Obama wasn't kidding when he gave all those shout-outs to nuclear power in his State of the Union address on Wednesday. According to Bloomberg, Obama's 2011 budget will request $54 billion in loan guarantees for new nuclear reactors—triple the previous amount.

I'm inclined to agree with Andrew Sullivan that "There's no way to tackle our carbon addiction without nuclear energy as part of the solution." But I also appreciate Plumer's observation that "the case against comes from the Union of Concerned Scientists, which argues that big nuclear projects have historically been very risky—prone to delays and cost overruns—and that the default rate on these loans can be quite high, sticking taxpayers with the bill. Instead, says UCS, it'd be better to direct that money toward cheaper, more reliable options for reducing emissions—efficiency or waste-heat capture or even wind power."

I've got a better idea. The WSJ reported in September of last year that:

 

Babcock & Wilcox, a unit of McDermott International, has designed a small 125-megawatt reactor that would be built at its U.S. factories and then delivered to power-plant sites by rail or barge. This would eliminate a bottleneck and the associated higher costs for ultra-heavy forgings that are required for large reactors. Small reactors could be built at a number of domestic heavy-manufacturing sites. The Lynchburg, Va., company has been building small reactors and other key components for Navy ships for decades, at plants in Indiana and Ohio.

Another plus of small reactors: They're designed to be refueled less frequently, reducing the number of refueling outages. Instead of every 18 months to two years, they could go four or five years, reaping a saving from having less down time. Another feature of some reactors is the ability to do more maintenance while plants are running, again reducing idle time.

... critics say that the economics of small plants simply don't work: The licensing costs are so great for nuclear plants, somewhere between $50 million and $100 million per site, and security and construction costs are so high that the economics work only for big plants, with lots of output, so costs can be spread over many kilowatt-hours of electricity.

So here's where my idea comes into play. The Navy already operates dozens of small nuclear reactors in aircraft carriers and submarines, with an outstanding record of safety and reliability. They have an established training program that churns out nuclear-capable officers.

By analogy to the Army Corps of Engineering, we could create a Navy Corps of Nuclear Engineering. It would build and operate dozens of small nuclear power plants around the country. To address security concerns, the first plants would be built on military bases, where the garrison can provide security. Licensing costs would be cut because the government would own and operate the plants.

The proposal should not offend small government sensibilities. Nuclear power is rife with market failures (and government failures). Huge research and development costs associated with traditional large scale nuclear power plants may be beyond the ability of private firms to finance. In addition, we know that private firms tend to underproduce the sort of basic R&D necessary to develop new generations of power plants. But the Navy already spends money to develop new naval reactors, which presumably could be scaled up at reasonable costs. Since the Navy need not worry about earning market competitive rates of return on its investment in R&D, moreover, there's no economic disincentive to conducting that sort of R&D in the Navy.

Private utilities are subject to state utility regulators who notoriously meddle, typically to "protect" consumers from rate increases, but usually with the outcome of making plants nonprofitable. A federal Naval Corps of Nuclear Engineering presumably would be outside the scope of state regulation.

Private utilities used cost-plus contracting when building nuclear power plants--with all its notorious problems--because there were serious problems of incomplete information when dealing with large scale, non-standardized plants. Smaller, standardized plants should be amenable to fixed price contracts.

Private parties have a hard time adequately insuring against very low probability but very high magnitude events. Since the taxpayer likely would ultimately be on the hook anyway, why not have the government own the plant and self-insure? And profit from selling electricity?

Another advantage of my proposal is that lots of military bases are brown field sites that would require mega-investments in environmental cleanup before being converted to civilian use. So why not build a nuclear plant there?

So I'd say Obama's half right. Oddly, however, this time I think his problem is that he's leaning too much on the private sector. The Navy knows how to run small nuclear reactors. Small nuclear reactors are the future of the industry. Why not put them together?

*****

Glenn Reynolds has had several relevant posts. #1:

MARK WHITTINGTON: “To paraphrase a line often made by Instapundit’s Glenn Reynolds, they told me that if I voted for John McCain we would see a massive push for nuclear power—and they were right! It seems that President Obama has embraced nuclear energy.”

#2:

WILL COLLIER: When It Comes To Nuclear Power, Companies Should Think Small.

The latter is especially relevant to the discussion here, as Collier argues small scale reactors are cheaper and safer than the traditional mega-monsters.

Dodge v. Ford Motor Co. and Shareholder Ratification

A friend sent along this question via email:

Would shareholder ratification/approval immunize the dividend policy in Dodge v. Ford (assuming Ford's votes don't count, and the Dodge brothers can't otherwise control the outcome)?  The reason I don't immediately say "yes" is because I wonder about the extent to which the dividend policy can be characterized as waste or bad faith -- thus potentially limiting the effect of SH approval/ratification.

If the facts of Dodge[1] came up today, my analysis would start with the premise that Henry Ford was the controlling shareholder of FMC. In Kahn v. M & F Worldwide Corp.,[2]  the Delaware Supreme Court expanded the protections potentially available to controlling shareholders. It held that a freeze-out merger would be reviewed under the business judgment rule rather than the fairness standard if six conditions are met: (1) the controlling stockholder conditions the transaction on the approval of both a special committee and the majority of the minority stockholders, (2) the special committee is independent, (3) the special committee is empowered to select its own advisors and to say no definitively, (4) the special committee meets its duty of care in negotiating a fair price, (5) the vote of the minority stockholders is informed, and (6) there is no coercion of the minority stockholders. A vote by the majority of the minority shareholders, standing alone, thus is not enough to invoke the business judgment rule as the standard of review.

To be sure, Dodge involved a closely held corporation not a public company. But that is not a problem, because MFW has been applied to transactions involving  privately held companies.[3]

Likewise, Dodge did not involve a freezeout merger. Again, however, this is not a problem, because the expanded protections offered by MFW are not limited to freeze-out mergers, but have been extended to other types of controlling shareholder transactions. In Tornetta v. Musk,[4]  for example, the Delaware Chancery Court provided new guidance on how to structure conflict of interest transactions to which a corporation’s controlling shareholder is a party. The case involved a shareholder lawsuit challenging an incentive compensation plan granted to Tesla, Inc.’s CEO, Elon Musk.

Are we sure MFW applies?

Henry Ford might argue that MFW is inapplicable because he did not personally benefit from the transaction. Accordingly, he would argue, that the decision to cancel the special dividends  would not trigger entire fairness review. Because MFW is intended to shift the standard of review from entire fairness to the business judgment rule, it is inapplicable. This argument would find some support in the older Sinclair Oil v. Levien[5]decision. It held that controlling shareholders owe a fiduciary duty to the company’s minority shareholders. But what standard of review should a court apply to such disputes? The Delaware Supreme Court identified two standards potentially applicable in such situations: the business judgment rule and the intrinsic fairness rule. Under the business judgment rule, the directors of Sinven get the benefit of a rebuttable presumption of good faith. Under the intrinsic fairness test, the burden of proof is on the directors to show, subject to close scrutiny, that the transactions were objectively fair to Sinven.

Under Sinclair Oil, a court will apply the intrinsic fairness standard, as opposed to the business judgment rule, when the parent has received a benefit “to the exclusion and at the expense of the subsidiary.” In other words, the more exacting intrinsic fairness standard comes into play only when the parent is on both sides of the transaction and, moreover, used its position to extract non-pro rata benefits from a transaction to the minority shareholders’ detriment.

If the transaction is subject to business judgment rule review from the outset, shareholder ratification would eliminate any duty of care-based claims.[6]

Assume MFW is not limited to conflicted interest transactions

As I read the Tornetta opinion, there is a strong argument that MFW is not limited to conflicted interest transactions.

In his opinion, Vice Chancellor Joseph Slights acknowledged that Delaware courts normally approach boards’ executive compensation decisions with a high degree of deference. Critically, however, Musk is not just Tesla’s CEO but also its controlling shareholder.[7] A controlling shareholder has been analogized to the proverbial 800-pound gorilla,[8] which gives rise to “an obvious fear that even putatively independent directors may owe or feel a more-than-wholesome allegiance to the interests of the controller, rather than to the corporation and its public stockholders.”[9]

In Tornetta, the Tesla defendants argued that MFW was irrelevant to the facts of this case:

They rely heavily on a “statutory rubric” argument, claiming MFW’s dual protections, devised in the context of a squeeze-out merger, mimic the approvals required by 8 Del C. § 251 but have no practical application to transactions where our law does not mandate approval at both the board and stockholder levels. . . . I do agree with Defendants that nothing in MFW or its progeny would suggest the Supreme Court intended to extend the holding to other transactions involving controlling stockholders.

Vice Chancellor Slights, however, observed that the risk of coercion is just as present when a conflicted controller enters into a compensation arrangement as when it proposes a freezeout merger:

Indeed, in the CEO compensation context, the minority knows full well the CEO is staying with the company whether vel non his compensation plan is approved. As our Supreme Court observed in Tremont II:

[I]n a transaction such as the one considered . . . the controlling shareholder will continue to dominate the company regardless of the outcome of the transaction. The risk is thus created that those who pass upon the propriety of the transaction might perceive that disapproval may result in retaliation by the controlling shareholder.

These words apply with equal force to the compensation setting.

Accordingly, in order for a conflicted controller transaction to be reviewed under the business judgment rule rather than entire fairness, the transaction must satisfy all of MFW’s requirements.

Because the Tesla board had not satisfied all of those conditions, VC Slights invoked the older Kahn v. Lynch rule,[10] which explained that in controlling shareholder transactions:

The initial burden of establishing entire fairness rests upon the party who stands on both sides of the transaction. However, an approval of the transaction by an independent committee of directors or an informed majority of minority shareholders shifts the burden of proof on the issue of fairness from the controlling or dominating shareholder to the challenging shareholder-plaintiff.

Likewise, in Dodge, if the board did not comply with all of the MFW conditions, the burden would have shifted to the Dodge brothers to show that the transaction was unfair. Because “an entire fairness analysis is the only proper standard of judicial review,” however, shareholder ratification—absent full compliance with MFW would not invoke the business judgment rule.

Assume MFW applies and was fully complied with

If we assume that MFW applies and that FMC’s board complied fully with all six requirements. What happens next?

If they did, then a version of the business judgment rule applies under which the only remaining claim is one for waste. See In re Books-A-Million, Inc. S’holders Litig., 2016 WL 5874974, at *1 (Del. Ch. Oct. 10, 2016), aff’d, 164 A.3d 56 (Del. 2017) (TABLE). The waste exception is more theoretical than real, because to state a claim for waste, the terms of the transaction must be so extreme “that no rational person acting in good faith could have thought the [transaction] was fair to the minority.” In re MFW S’holders Litig. (MFW Chancery), 67 A.3d 496, 500 (Del. Ch. 2013), aff’d sub nom. MFW, 88 A.3d at 635. At that point in the analysis, two groups of rational people—the committee and the minority stockholders—would have approved the transaction. It is “logically difficult to conceptualize how a plaintiff can ultimately prove a waste or gift claim in the face of a decision by fully informed, uncoerced, independent stockholders to ratify the transaction.” Harbor Fin. P’rs v. Huizenga, 751 A.2d 879, 889 (Del. Ch. 1999). The resulting version of the business judgment rule is thus rightfully described as “irrebuttable.”[11]

I'm not sure how you would attack a decision to cancel a dividend as waste.

Video of the Zoom Conference Should Boards Have Duties to Stakeholders? Lessons from the COVID-19 Crisis

Delaware Chancery Court Holds Failure to Disclose "Intrinsic Value" Precludes Corwin Defense

A post from Tyler O'Connell of MorrisJames informs us that:

In In re USG Corp. S’holder Litig., 2020 WL 5126671 (Del. Ch. Aug. 31, 2020), the Court of Chancery granted the director-defendants’ motions to dismiss post-closing money damages claims arising out of the sale of USG Corporation (“USG”) for less than what USG’s directors allegedly thought was its intrinsic value. Although the failure to disclose such “intrinsic value” prevented dismissal under Corwin v. KKR Financial Holdings, LLC, 125 A.3d 304 (Del. 2015), Vice Chancellor Sam Glasscock III held that, in the circumstances, that omission and the directors’ approval of the sale did not suffice to plead a breach of the directors’ fiduciary duty of loyalty.  ...

The Court reasoned that, as recent Delaware appraisal cases have suggested, “intrinsic value” or “fair value” are “nebulous, even illusory, concepts.” With a “but see” cite to Delaware’s appraisal statute, the Court reasoned that “[b]elief in any particular intrinsic value, by any being less than an omniscient god, is necessarily a belief that is subjective in nature.” The Court held, however, that “because the Proxy Statement disclosed that the Board held a view of intrinsic value and frequently referenced such a view during its disclosures about the sales process, USG’s stockholders were entitled to know the Board’s opinion of USG’s intrinsic value, even if it was unachievable due to market forces and Knauf’s threats to launch a hostile takeover.” 

An asset (including a business) has no intrinsic value, of course. Instead, it is worth only what the buyer with the highest reservation price is willing to pay. The Delaware courts have recognized this. But the USG board apparently doesn't understand basic finance and they paid the price for being that dumb.

Professors of a certain age struggling with remote teaching

A dear friend sent this along. I don't know where he got it, so can't give credit:

Lowell Milken Institute Program on Should Boards Have Duties to Stakeholders? Lessons from the COVID-19 Crisis

The Lowell Milken Institute for Business Law and Policy at the UCLA School of Law is sponsoring a Zoom stayconference on CSR during the pandemic today. I'll be speaking, along with David A. Katz, who is a partner at Wachtell, Lipton, Rosen & Katz, and Professor Jeffrey M. Lipshaw of the Suffolk University Law School. Regular readers will recall that Jeff and I have dueling papers on the Business Roundtable's August 2019 statement on corporate purpose:

Bainbridge, Making Sense of the Business Roundtable’s Reversal on Corporate Purpose

Lipshaw, The False Dichotomy of Corporate Governance Platitudes

The moderators (my colleagues Iman Anabtawi and Jim Park) circulated a list of questions, which I'm reposting below along with notes I've prepared to use in answering them:

Question: Let’s begin by having each of the panelists describe their position on the question of whether boards should owe duties to corporate stakeholders other than shareholders.

• There is no such duty under current law and the law should not create one.
• You don’t have to take my word for it. Former Delaware Chief Justice Leo Strine has always been very clear this question: "within the limits of their discretion, directors must make stockholder welfare their sole end, and that other interests may be taken into consideration only as a means of promoting stockholder welfare."[1]

Question: The Business Roundtable issued a statement last year expressing “a fundamental commitment” to corporate stakeholders. Was the corporate response to the pandemic consistent with that statement?

• The BRT statement is just woke-washing. It signaled the CEOs’ advocacy for stakeholders but didn’t change much.
• Lucian Bebchuk and Roberto Tallarita found that the vast majority of signatory CEOs had not gotten board approval to sign it. “Even “imperial” CEOs tend to push major decisions through the board rather than disregard it. … The most plausible explanation for the lack of board approval is that CEOs didn’t regard the statement as a commitment to make a major change in how their companies treat stakeholders.”
• There’s evidence that the CEOs in fact do not walk the walk.
  • Anecdotally, WSJ reported in late August that: “A day after Salesforce.com posted record quarterly sales, the business-software company notified its 54,000-person workforce that 1,000 would lose their jobs later this year.”
    • I don't think even Scrooge would have told his employees that in a few months down the road 2% of them would be fired, leaving them to twist slowly in the wind for months while worrying whether they'll be among those who get fired.
    • What makes all of this especially pertinent is that Saleforce CEOMarc Benioff is one of the leading social justice warrior CEOs, constantly bragging about what a great human being he is.
  • There’s a study by a pair of economists, entitled “Do the Socially Responsible Walk the Talk?,” which found “that Business Roundtable signatories exhibit worse records with respect to labor and the environment than their peers.”

Question: Recently a group of 322 long-term institutional investors with $9.2 trillion in assets under management issued an “Investor Statement on Coronavirus Response” asking corporations to take a variety of steps including providing paid leave to employees, taking measures to maintain employment and exhibiting financial prudence by suspending share buybacks. If shareholders themselves are pushing for greater attention to employee interests, shouldn’t boards respond ?

• The question is whether you think those investors will change their behavior or whether you think this is just more woke washing. I believe that the emphasis on ESG investing that we’re seeing from BlackRock, Vanguard, and State Street is mostly advertising. There is survey data that millennials apparently prefer to work for and purchase from companies that are perceived as socially and environmentally responsible. Accordingly, there is an increasingly widely held view in the investment community that to attract Millennial and Generation Z customers, companies must project an image as social justice activists.
• But none of the Big Three have lived up to their commitments. They devote relatively few personnel and resources to monitoring ESG issues at their portfolio companies. Despite the fact that the Big Three collectively own enough shares to determine the outcome of the vote on pro-ESG proposals made by other shareholders,  they rarely vote in favor of such proposals.

Question: Our health care system was initially overwhelmed during the pandemic because sufficient supplies had not been stockpiled and much of our manufacturing is now offshore. Is this failure evidence that a focus on increasing shareholder wealth is problematic from a public policy perspective?

• It’s not a business’ responsibility to anticipate unknown and unpredictable events that will widely affect society.
  • What incentive does a for-profit business have to invest in a drug that may never be needed?
• It was a series of failures of government policy over a two-decade period:
  • We’ve known about zoonotic diseases at least since the AIDS epidemic began. Ebola looked like a nightmare waiting to happen.
  • There have been many proposals to prepare for pandemics. But the proposals were either never funded, underfunded, or defunded.

Question: In Marchand v. Barnhill, the Delaware Supreme Court held that the failure of the board of Blue Bell Creameries to adopt a monitoring and reporting system that would ensure it was informed about food safety issues could support aCaremark It observed that Blue Bell could “only thrive if its consumers enjoyed its product and were confident that its products were safe to eat.” Does this case recognize that the board must be attentive to the interests of stakeholders such as consumers?

• Marchand was decided by Chief Justice Leo Strine. Strine has explained that “a clear-eyed look at the law of corporations in Delaware reveals that, within the limits of their discretion, directors must make stockholder welfare their sole end, and that other interests may be taken into consideration only as a means of promoting stockholder welfare.”
• The cause of action was a derivative shareholder suit brought to enforce the duty of loyalty owed shareholders. The claim is based on the losses the shareholders suffered as a result of the product recall, shutdown of production, lawsuits, and a dilutive private equity offering necessary to keep the company afloat.

Question: How should the board consider situations where the interests of stakeholders conflict? For example, during the pandemic, keeping businesses operating may benefit consumers while risking the health of employees?

• Obviously, one size will not fit all.
• Boards need discretion to decide what is in the company’s best interest in these unusual circumstances.
• The business judgment rule exists precisely so as to ensure that directors can exercise that discretion without fear of liability.
• What directors should not do is to make tradeoffs between the interests of shareholders and stakeholders.
• The core problem of corporate social responsibility is that directors who are responsible to everyone are responsible to no one.

Leo Strine on Milton Friedman on the Social Responsibility of Business

We recently celebrated the 50th anniversary of the publication by The NY Times of Nobel economics laureate Milton Friedman essay The Social Responsibility of Business Is to Increase Its Profits.

Corporate social responsibility raises two questions that often get bollixed up even 50 years later:

1. Do corporations have a social responsibility, as a matter of law.
2. Should corporations be socially responsible?

This is, of course, an example of the classic is/ought dichotomy. (Not, as you may have thought, the is-ought problem.)

Former Delaware Chief Justice Leo Strine has always been very clear on the "is" question: "Despite attempts to muddy the doctrinal waters, a clear-eyed look at the law of corporations in Delaware reveals that, within the limits of their discretion, directors must make stockholder welfare their sole end, and that other interests may be taken into consideration only as a means of promoting stockholder welfare." Leo E. Strine, Jr., The Dangers of Denial: The Need for A Clear-Eyed Understanding of the Power and Accountability Structure Established by the Delaware General Corporation Law, 50 Wake Forest L. Rev. 761, 768 (2015).

So some might be surprised by his recent NY Times op-ed (with Joey Zwillinger, who is the co-founder and co-C.E.O. of Allbirds), in which Strine has some very harsh words for Friedman and his seminal essay. (I'm going to be going back and forth between the Wake Forest and NYT articles. To avoid confusion, I am marking WFLR quotes in blue and the NYT quotes in red.)

Strine's oped strikes a left-of-center populist note:

In the past 50 years, instead of gains for stockholders and top management tracking gains for workers — as characterized by the period when Mr. Friedman wrote — the returns of our capitalist system have become skewed toward the haves.

(As I have written elsewhere, of course, this is a concern shared by right-of-center populists. See my essay Conservative Critiques of Capitalism.)

Strine also takes a left-of-center shot at the libertarian views of espoused by Friedman and his allies:

Mr. Friedman sought to weaken the rules of the game by opposing basic civil rights legislation, unions, the minimum wage and other measures that protected workers, Black people, and the environment.

Of course, some folks would call that a 20th Century version of classical liberalism, which advocates a limited role for government so as to promote maximal freedom and responsibility for everyone. But let's not get bogged down with who says what about whom.

Instead, I want to make a couple of points. First, although Strine's op-ed does not suggest a change in his views on the "is" question, it does suggest a shift in his views on the "ought question" In his earlier Wake Forest Law review article, Strine wrote that:

I am more than moderately sympathetic with those who argue that for-profit corporations should behave lawfully, responsibly, and ethically.

... It is more productive to take the legal rules and corporate power structure as it is, and to advance proposals that make sure that corporations operate in a way that encourages more responsible behavior and that maximizes long-term welfare, within the bounds of that structure.

As I have always read that passage, what Strine wanted was for the legislature to set regulatory bounds within which the corporation operates. Instead of asking directors to be socially responsible, he simply wanted to ask them to obey the law--albeit a much more aggressively regulatory body of law than he believes currently exists.

Now, however, it appears Strine has changed his mind and wants boards "embrace an affirmative duty to stakeholders and society." 

By committing to goals of responsible citizenship, companies allow stakeholders, institutional investors and the public to hold them accountable to their inclusive ideals. In doing so, corporate leaders will also set an example that institutional investors should be required to follow in their own investing and voting policies.

This is pretty surprising. Let's go back to the Wake Forest article:

Under the current legal rules and power structures within corporate law, it is naïve to expect that corporations will not externalize costs when they can. It is naïve to think that they will treat workers the way we would want to be treated. It is naïve to think that corporations will not be tempted to sacrifice long-term value maximizing investments when powerful institutional investors prefer short-term corporate finance gimmicks. It is naïve to think that, over time, corporations will not tend to push against the boundaries of whatever limits the law sets, when mobilized capital focused on short-term returns is the only constituency with real power over who manages the corporations. And it is naïve to think that institutional investors themselves will behave differently if action is not taken to address the incentives that cause their interests to diverge from those people whose funds they invest.

One wonders what has changed so that it is no longer naive to "expect that corporations will not externalize costs when they can" and so on? One also wonders how Strine squares his view of what boards ought to do with his view of what the law allows boards to do. Back to WFLR: "Dodge v. Ford and eBay are hornbook law because they make clear that if a fiduciary admits that he is treating an interest other than stockholder wealth as an end in itself, rather than an instrument to stockholder wealth, he is committing a breach of fiduciary duty." 

How do we square that blunt statement with Strine's current embrace of "a stakeholder-centric governance model"? Does he think directors can do the latter without breaching their fiduciary duties? If so, how?

I think Strine's evolution (assuming he is evolving--I would LOVE for him to do a guest post in reply to my comments, but I am not holding my breath) is being driven by his visceral loathing of the Citizens United decision. Strine has written 8 law review articles (by my count) in which Citizens United comes up and none of them have anything good to say about that decision. In particular, he has argued that Citizens United unleaded a flood of corporate money into politics (of course, it also unleashed a food of union money), which has had deleterious effects:

Because corporate wealth far exceeds that held directly by human beings, if corporations are able to act directly to influence who is elected to office, the laws and regulations in our society will increasingly tend to tolerate the imposition of greater externalities, because they will be enacted by politicians who have been elected in an expensive process in which money matters, and in which securing the support of nonhuman corporate money with a monocular focus on profit will be important to electoral competitiveness.

Leo E. Strine, Jr. & Nicholas Walter, Conservative Collision Course?: The Tension Between Conservative Corporate Law Theory and Citizens United, 100 Cornell L. Rev. 335, 389 (2015).

Although Citizens United goes unnamed in the NYT op-ed, we see the same concerns:

Business leaders must ... stop using corporate funds to distort our nation’s political process. That means ending corporate political spending without shareholder consent, and not contributing to dark money or political party committees. It also means ensuring that spending plans recommended to shareholders only allow contributions to candidates whose views on issues like racial inequality, climate change and fairness to workers are consistent with the corporation’s stated values.

In response, I refer you to my essay Corporate Social Responsibility in the Night Watchman State: A Comment on Strine & Walker, from which I'll draw a few quick points. 

As I have observed previously, “in the 2008 election cycle, the total amount spent on all political campaigns by all actors was, according to OpenSecrets.org, $5,285,680,883.” To put that figure in context, it is less than the amount Procter & Gamble alone spent on advertising in 2008. “As a society, we spend much more money selling stuff to wipe our bottoms with than we do deciding who should run the most powerful country in the world,” which perhaps suggests that the amounts at issue are not as unreasonable as Strine and Walter seem to think.

Instead, the more serious objection posed by Strine and Walter goes to the core of their argument; namely, that corporate political spending is deployed to erode regulations necessary to constrain the externalities inherent in corporate business activity… In fact, however, much corporate political spending is likely to be defensive. As The Economist recently observed:

When America was founded, there were only three specified federal crimes-- treason, counterfeiting and piracy. Now there are too many to count. In the most recent estimate, in the early 1990s, a law professor reckoned there were perhaps 300,000 regulatory statutes carrying criminal penalties--a number that can only have grown since then. For financial firms especially, there are now so many laws, and they are so complex (witness the thousands of pages of new rules resulting from the Dodd-Frank reforms), that enforcing them is becoming discretionary.

In this environment, it seems plausible that much corporate political spending goes to stave off additional regulation rather than to repealing existing laws. In the absence of a showing that the benefits of foregone regulations exceed their costs, there is no reason to assume that corporate political spending increases the extent to which corporations can externalize costs. Strine and Walter offer no convincing evidence that corporate political spending in fact has the effect they posit.

Strine and Walter also fail to take into account the likelihood that much corporate political spending will simply cancel out spending by other corporations. It seems intuitively obvious that specific regulations rarely advantage all businesses. If so, spending by opponents of particular laws or rules likely will be countered by those who benefit from them. Accordingly, Citizens United’s alleged anti-regulatory effect will be self-minimizing.

In addition, Strine and Walter fail to explore the implications of the fact that large corporations dominate corporate campaign spending. First, spending by such corporations is highly constrained by reputational considerations due to “the seriousness with which large corporations treat any potential threats to their goodwill arising from ... negative publicity” generated by unpopular contributions. Second, and more important, while Strine and Walter assume corporations use political spending exclusively to externalize the negative costs of their activities, the reality is that large corporations frequently support regulations that force corporations to internalize social costs. They do so because such regulation can create significant costs for smaller competitors and barriers to entry for startups. Because regulatory costs frequently do not scale, they are often borne disproportionately by small businesses and startups. This observation is not offered as a defense of corporate political spending, but solely as a critique of Strine and Walter’s assumption that corporate political spending is inevitably anti-regulation.

I go on to explore reasons why, even if Strine and Walker were right, I would still oppose corporate social responsibility. But that’s a story for another day (and, in any event, has been oft explored in these pages.)

Guest Post by JW Verrett: Forensic Accounting, Corporate Law, The CIA, & The Hunt for Aldrich Ames

J.W. Verret here.

I have recently embarked on a career shift to focus study on accounting, specifically forensic accounting, and how it relates to the core issues in corporate, securities and banking law that have previously been the focus of my scholarship.  That has included getting certified as a CPA and as a CFF (certification in financial forensics).

Along the way I’ve learned a ton about using financial accounting and forensic accounting techniques to catch bad guys.  Forensic accounting is a core tool for financial fraud investigations under the securities laws (10b-5, FCPA, etc.) and banking law.  It is also a core tool used by Delaware companies to meet their Caremark oversight obligations as forensic accountants design internal controls to prevent compliance violations and utilize forensic accounting to catch violators. 

Before digging into issues at the intersection of forensic accounting and corp/securities law, I thought I would introduce readers to forensic accounting through the story of the FBI and CIA’s efforts to catch Aldrich Ames.  This spy hunt was only successful because of evidence put together by a forensic accounting team conducting a net worth analysis, a common tool of forensic accountants which shows that changes in a subject’s net worth cannot be sufficiently explained by their legitimate sources of income.

Aldrich Ames sold information to the KGB about the identity of our intelligence assets within the USSR, and at the time of his arrest he was responsible for the greatest intelligence leak in American history.  He identified at least ten active agents for the US, some of whom were later executed by the Soviets as a result of his tips.

A classic tool used by forensic accountants to guide investigations is the “Fraud Triangle.”  Three factors that are nearly universal in frauds studied in an early survey of embezzlers by criminologist Donald Kressey.  Its components are pressure, opportunity, and rationalization.  In Ames’s case, pressure for money came initially from an expensive divorce and then from a lavish spending lifestyle he shared with a new wife (when she was arrested, investigators found 60 purses and 500 pairs of shoes among other items). 

Opportunity (a prong that usually reflects poorly on the organization) was here created by his ability to walk out of headquarters with armloads of documents to give the Soviets (since remedied by the agency).  Opportunity also came a result of his legitimate cover for meeting with handlers, which was often that he was attempting to recruit them in reports he would file with the agency about the meetings. 

Rationalization in his case was a personal grudge over being passed over for promotion because of the impact of his drinking on his work.  He would frequently return from long lunches unable to function.

The Fraud Triangle doesn’t only help to explain an embezzler, financial fraud, or in this case spy’s behavior after being caught.  It informs key aspects of an internal investigation, from the email keywords used in email searches to the questions asked during internal interviews as a fraud investigator attempts to track down the perpetrator.

The fascinating details of the investigation of Aldrich Ames can be found in a Senate Intelligence Committee Report, available here.

The first 40 pages outline an intelligence disaster, a ten-year period during which Ames lived a dangerous double life.  Some of his methods utilized sophisticated tradecraft, code names and the famous “dead-drop” mailbox where he would leave markings to indicate he left intelligence in one of several KGB dead drop locations for pickup.

Near the end of the story, the FBI and the CIA know they have a mole on their hands and have seen entire intelligence networks overseas rolled up by the KGB (and later the FSB) overnight.  The first break they have in the case is a tip that Ames cover for his excessive spending, that he inherited the money from his wife and her family, was bogus.  Subsequent forensic analysis of his spending showed him spending cash amounts of nearly $1.4 million and credit card billings of another $500,000 between 1985 and 1993.  During that 8 year time-frame his aggregate CIA take home pay was $336,000.

Ames covered his tracks in part through the classic money laundering techniques of placement, layering, and integration.  Placement takes illicit cash and enters it into the financial system.  He would make structured cash deposits just below the SARs reporting threshold at which banks must report them to the Treasury Department of $10,000.  He would then move the money overseas between various accounts, and then wire it back to the US to make it appear that the money came from his wife’s family.

One challenge CIA officials faced in investigating Ames was that, despite their tips concerning his strangely lavish spending, they did not have the authority themselves to obtain information from banks where he may have done business.  And, at least early in the investigation, the CIA wasn’t eager to expose their dirty laundry to the FBI to pursue a FISA warrant.

From the initial tip about Ames’ odd spending, until his arrest, Ames was able to continue giving away secrets for four years!  At one point a CIA officer went to Bogota to determine whether Ames’ wife was the source of his money.  His was able to vaguely confirm that her family was successful, and had donated to a local sports stadium for naming rights, but specific details like Ames’ assertion about a windfall of money from his mother-in-law’s insurance policy were never nailed down.

It took some time for the FBI to gain access to his bank accounts to review the cash transactions.  Once they did, the investigation quickly focused on him.  One piece of smoking gun evidence in the case was the fact that roughly $9,000 cash deposits, in amounts at multiple banks appearing to be structuring transactions designed to stay below the suspicious activity reporting (SARs) threshold, seemed to take place just after incidents in which Ames was documented meeting with Soviet officials.  Some of those meetings were documented by Ames as his efforts to “recruit” potential agents who were in fact his handlers.  Some of those meetings were documented by FBI agents tailing the Soviet officials (who recorded Ames’ meeting with them) but suspiciously not documented by Ames in violation of procedure.

Spy stories are fun.  Similar fact patterns play out in corporate internal investigations every day as corporations seek to maintain compliance with the federal securities and banking laws and fulfill their oversight duties under Caremark.  The Fraud Triangle and other techniques of forensic accounting utilized in the mole hunt for Aldrich Ames are also used to design internal controls and to conduct investigations of suspected fraud in corporations.  As a fan of cold war era spy fiction (I’ve probably read Le Carre’s George Smiley series a half dozen times) I think that is pretty cool.

Three nights of Ridge Zinfandel

We had Ridge Vineyard reds every night this weekend (in the PB.com household, Thursdays count as a weekend night).

Up first with Hello Fresh's Brown Sugar Bourbon Pork Chops with Apple Pan Sauce, Scallion Mashed Potatoes & Roasted Green Beans was Ridge Wild Cattle Creek Zinfandel (Dry Creek Valley) 2017. Deep purple-ruby. No sediment to speak of. Not a vin de garde, but offering very enjoyable near-term drinking. Cherry cola. Blackberry and raspberry. Plenty of American oak. On the light side for Ridge. Grade: B+

Friday night was a Caesar salad with skirt steak and air-fried French fries. We drank a Ridge Geyserville (Alexander Valley) 2012. Mature but still in its prime. Would have aged well for a while, but it gave a lot of enjoyment now. Enough sediment to justify decanting. Rich and savory bouquet of dried red and black fruits. Well-balanced. Improved with time in the decanter. A big wine. Cherry, blackberry, and discernible American oak. Grade: A-

Saturday night was quail stuffed with jambalaya (with more jambalaya on the side). We had it with a Ridge Lytton Springs (Dry Creek Valley) 2012. It was very interesting to compare it to our notes of the Geyserville from the same vintage. Both Helen and I strongly preferred the Lytton Springs, which was unusual on Helen's part since she is usually prefers Geyserville (I'm just the opposite).

Still a deep ruby-purple, despite having thrown enough sediment to justify decanting. Rich bouquet suggesting blackberries and plums. Rich and complex on the palate. Blackberry. Black cherry. Prunes. Tobacco. Long finish. Probably would age well for a few more years, but providing plenty of enjoyment now. Grade: A-/A

Three great wines.

Disgraced former Theranos CEO Elizabeth Holmes wants to plead mental disease or defect as a defense to the securities fraud charges against her

Reuters reports:

U.S. District Judge Edward Davila in San Jose, California overruled defense objections to letting a psychologist and psychiatrist chosen by the government examine the 36-year-old Holmes for 14 hours over two days, and having the examinations recorded on video.

Davila authorized the examinations after Holmes’ lawyers said they intended to introduce expert evidence from a clinical psychologist “relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of guilt.”

The defense expert, Mindy Mechanic, is a California State University at Fullerton professor specializing in psychosocial consequences of violence, trauma and victimization, including violence against women, and often testifies in cases involving interpersonal violence, according to her university biography.

I've been in this business for a long time and this is the first time I've heard of the mental disease or defect defense being used in a securities fraud case. A quick Westlaw search turned up about 3 or 4 similar cases, with the opinions mainly dealing with whether a defendant was competent to stand trial. In contrast, It appears from a CNN report that Holmes wants to plead mental disease or defect as a substantive defense to the charges:

This week, Judge Edward Davila of the US District Court for the Northern District of California granted federal prosecutors the ability to have Holmes examined by two experts -- a psychologist and a psychiatrist -- over two consecutive days and for no more than 14 hours combined. The ruling comes after Holmes' defense team previously notified the government of intent to "introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on ... the issue of guilt," according to the filing.

I couldn't find any precedent indicating that the defense would play out differently in a securities fraud case than it would in any other criminal case. 

The Ninth Circuit has held that the following jury instruction on the defense was proper:

A defendant is insane if, but only if, at the time of the crime charged,

1. The defendant had a severe mental disease or defect; and
2. As a result, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.

The defendant must prove insanity at the time by clear and convincing evidence—that is, that it is highly probable that the defendant was insane.

U.S. v. Elliott, 91 F.3d 156 (9th Cir. 1996).

It's somewhat hard to predict how things will play out, especially because the court's order is redacted with respect to the scope of Dr. Mechanic's proposed testimony.

At a high level, the testimony would cover [redacted], all during the period of the alleged conspiracy. ...

Mechanic does not propose merely to speak “generally” about “the effects of a particular condition,” ... rather, she intends to offer an opinion as to whether Defendant Holmes [redacted]

UNITED STATES OF AMERICA, Pl., v. ELIZABETH A. HOLMES, Def.., 18-CR-00258-EJD-1, 2020 WL 5414786, at *3 (N.D. Cal. Sept. 9, 2020).

I'll be following this case with interest.

Were Easterbrook and Fischel right that target company boards should remain passive in the face of a hostile takeover bid? A comment on Sharfman and Moore. Part 4

In Part I of this essay, I discussed a new article by Bernard Sharfman and Marc Moore, in which they propose reviving the passivity thesis, which argued that target boards faced with a hostile takeover offer should be passive.

In Part II of this essay, I discussed my article, Unocal at 20: Director Primacy in Corporate Takeovers,[1] in which I explained why I disagree with the passivity thesis. My analysis grew directly out of my director primacy model of corporate governance. Because I still think a board-centric approach to corporate governance is appropriate, even in the context of a hostile takeover bid, let me summarize my argument here. I encourage you to go read the whole thing, however.

In Part III, I discussed the final and perhaps most important argument for treating negotiated and hostile acquisitions differently with respect to the scope of the target board’s authority, which rests on the conflicted interests inherent in corporate takeovers.

In this Part, I defend Delaware's approach to takeovers against one aspect of Sharfman & Moore's passivity thesis.

In their discussion of the UK system, which adopts a variant of the passivity thesis, and which they support, Sharfman and Moore point out that (at 32):

Notably, the board passivity rule is an effect- rather than intention-based doctrine, which enables the United Kingdom’s non-judicial Takeover Panel to enforce the rule against target directors and other relevant parties in an administratively straightforward manner, unencumbered by the vexing questions of factual inference and fiduciary duty conformance that typically confront U.S. trial and chancery courts.

In contrast, I think Delaware’s motive-based analysis gets it exactly right.

In its takeover jurisprudence, Delaware has balanced the competing claims of authority and accountability by varying the standard of review according to the likelihood that the actions of the board or managers will be tainted by conflicted interests in a particular transactional setting and the likelihood that nonlegal forces can effectively constrain those conflicted interests in that setting. In other words, the Delaware cases suggest that motive is the key issue. As former Delaware Chancellor Allen explained in the closely related context of management buyout transactions: “The court’s own implicit evaluation of the integrity of the . . . process marks that process as deserving respect or condemns it to be ignored.” Assuming that a special committee of independent directors would be appointed to consider the proposed transaction, Allen went on to explain: “When a special committee’s process is perceived as reflecting a good faith, informed attempt  to approximate aggressive, arms-length bargaining, it will be accorded substantial importance by the court. When, on the other hand, it appears as artifice, ruse or charade, or when the board unduly limits the committee or when the committee fails to correctly perceive its mission—then one can expect that its decision will be accorded no respect.”[1] Our claim is the same is true with respect to board resistance to unsolicited tender offers. If the conflict of interest inherent in such resistance has matured into actual self-dealing, the court will invalidate the defensive tactics. If the board acted from proper motives, even if mistakenly, however, the court will leave the defenses in place.

Former Delaware supreme court Justice Moore argued, for example, that his court’s “decisions represent a case-by-case analysis of some difficult and compelling problems.”[2] He later elaborated:

We did not approach [takeover] cases with the question of whether to allow the corporation to continue in its present form or to permit someone else to acquire the company. . . . [T]he question before the Court was whether the directors acted properly in accepting or rejecting the competing offers. . . . As long as the directors adhered to their fiduciary duties, it would have been most inappropriate for any court to intrude upon a board’s business decision. No court has a role in disciplining directors for the proper exercise of business judgment, even if it turns out to be wrong.[3]

Former Delaware Chancellor Allen made much the same point in RJR Nabisco, where he indicated that the basic question is whether the board acted with due care and in good faith:

Surely the board may not use its power to exercise judgment in [an auction of control] as a sham or pretext to prefer one bidder for inappropriate reasons. . . . But the board of directors continues, in the auction setting as in others, to bear the burden imposed and exercise the power conferred by Section 141(a). Assuming it does exercise a business judgment, in good faith and advisedly, concerning the management of the auction process, it has, in my opinion, satisfied its duty.[4]

A federal court similarly described the Unocal standard as asking “whether a fully informed, wholly disinterested, reasonably courageous director would dissent from the board’s act in any material part.”[5]Motive is the consistent theme throughout these summations of Delaware law.

In light of Sharfman and Moore’s description of Delaware law as not being administratively straightforward and being encumbered by vexing questions, they presumably would agree with those who argue that the difficulty of distinguishing between proper and improper motives is so great in this context that courts should simply eschew a motive-based analysis.

Granted, motive analysis is always difficult, but in every other conflicted interest context the board’s authority to act depends upon the validity of the directors’ mo­tives.[6] Unless we are to accept the passivity model and strip the board of decision-making authority in the takeover context, a motive-based inquiry is inescapable.[7]

The Delaware Supreme Court’s leading decision in Paramount Communications Inc. v. QVC Network Inc.,[8]explained that the enhanced scrutiny test Delaware courts use to review takeover defenses is basically a reasonableness inquiry to be applied on a case-by-case basis: “The key features of an enhanced scrutiny test are: (a) a judicial determination regarding the adequacy of the decision-making process employed by the directors, including the information on which the directors based their decision; and (b) a judicial examination of the reasonableness of the directors’ action in light of the circumstances then existing.” The burden of proof is on the directors with respect to both issues. They need not prove that they made the right decision, but merely that their decision fell within the range of reasonableness.

The new reasonableness standard is a logical culmination of our argument that motive is what counts. While a cynic might argue that it is merely a way of justifying a particular result, the reasonableness test in fact is well-calibrated to preventing improper motives from skewing the competition for control. Notice that the reasonableness test parallels the definition of fairness used in the former Revised Model Business Corporation Act provisions governing interested director transactions, namely, whether the transaction in question falls “within the range that might have been entered into an arms-length by disinterested persons.”[9] Both standards seem designed to ferret out board actions motivated by conflicted interests by contrasting the decision at hand to some objective standard. The implicit assumption is that a reasonable decision is unlikely to be motivated by conflicted interest or, at least, that improper motives are irrelevant so long as the resulting decision falls within a range of reasonable outcomes. The operating norm seems to be “no harm, no foul,” which seems sensible enough.

QVC, moreover, strongly indicated that a court should not second-guess a board decision that falls within the range of reasonableness, “even though it might have decided otherwise or subsequent events may have cast doubt on the board’s determination.” In Interco, Chancellor Allen had warned that “Delaware courts have employed the Unocal precedent cautiously. . . . The danger that it poses is, of course, that courts—in exercising some element of substantive judgment—will too readily seek to assert the primacy of their own view on a question upon which reasonable, completely disinterested minds might differ.”[10] QVC made clear that, so long as the board’s conduct falls within the bounds of reasonableness, Delaware courts will not second-guess the board’s decisions.

If that point was insufficiently clear after QVC, it was driven home in unmistakable terms by the Delaware supreme court’s subsequent decision in Unitrin v. American General Corp., in which the court approved an everything but the kitchen sink array of defensive tactics.[11] Unitrin’s board adopted a poison pill, amended the bylaws to add some shark repellent features, and initiated a defensive stock repurchase. The chancery court found the latter “unnecessary” in light of the poison pill. The supreme court reversed. The court deemed “draconian” defenses—those which are “coercive or preclusive”—to be invalid. (Note the parallel to our discussion of the post-Time status of the just say no defense.) Defenses that are not preclusive or coercive are to be reviewed under QVC’s “range of reasonableness” standard. On the facts before it, the court concluded that the shareholders were not foreclosed from receiving a control premium in the future and that a change of control was still possible. Accordingly, the defensive tactics were neither coercive nor preclusive. More important, the supreme court held that the chancery court had “erred by substituting its judgment” for that of the board. The court explained:

The ratio decidendi for the “range of reasonableness” standard is a need of the board of directors for latitude in discharging its fiduciary duties to the corporation and its shareholders when defending against perceived threats. The concomitant requirement is for judicial restraint. Consequently, if the board of directors’ defensive response is not draconian (preclusive or coercive) and is within a “range of reasonableness,” a court must not substitute its judgment for the board’s.

Note, once again, how the balance tips towards authority values even in a context charged with conflicts of interest. Given the significant conflicts of interest posed by takeovers, courts recognize the need for some review. But the Delaware courts also seemingly recognize that their power of review easily could become the power to decide. To avoid that unhappy result, they are exercising appropriate caution in applying the range of reasonableness standard.

In sum, the search for conflicted interests reflects the Delaware courts’ solution to the irreconcilable tension between authority and accountability. Concern for accountability drives the courts’ expectation that the board will function as a separate institution independent from and superior to the firm’s managers. The court will inquire closely into the role actually played by the board, especially the outside directors, the extent to which they were supplied with all relevant information and independent advisors, and the extent to which they were insulated from management influence. Only if the directors had the ultimate decisionmaking authority, rather than incumbent management, will the board’s conduct pass muster. But if it does, respect for authority values will require the court to defer to the board’s substantive decisions. The board has legitimate authority in the takeover context, just as it has in proxy contests and a host of other decisions that nominally appear to belong to the shareholders. Nor can the board’s authority be restricted in this context without impinging on the board’s authority elsewhere. Authority thus cannot be avoided anymore than can accountability; the task is to come up with a reasonable balance. Properly interpreted, that is precisely what the Delaware cases have done.

Reminder: If you want much more detail, be sure to check out my article Unocal at 20: Director Primacy in Corporate Takeovers, 31 DEL. J. CORP. L. 769 (2006), on which the posts have drawn.

Were Easterbrook and Fischel right that target company boards should remain passive in the face of a hostile takeover bid? A comment on Sharfman and Moore. Part 3

In Part I of this essay, I discussed a new article by Bernard Sharfman and Marc Moore, in which they propose reviving the passivity thesis, which argued that target boards faced with a hostile takeover offer should be passive.

In Part II of this essay, I discussed my article, Unocal at 20: Director Primacy in Corporate Takeovers,[1] in which I explained why I disagree with the passivity thesis. My analysis grew directly out of my director primacy model of corporate governance. Because I still think a board-centric approach to corporate governance is appropriate, even in the context of a hostile takeover bid, let me summarize my argument here. I encourage you to go read the whole thing, however.

In this Part, I discuss the final and perhaps most important argument for treating negotiated and hostile acquisitions differently with respect to the scope of the target board’s authority, which rests on the conflicted interests inherent in corporate takeovers.

The conflicted interest argument

Put in my director primacy terminology, the conflicted interest argument is that accountability concerns are so severe in this context that they must trump authority values. Unsolicited tender offers implicate accountability concerns in at least two ways, which might be referred to respectively as transactional and systemic. The former relates to the effect of a hostile takeover on the target in question, while the latter relates to the effect resistance to hostile takeovers can have on public corporations as a whole. Neither justifies wholly barring authority values from playing a part in developing the governing legal rules.

Transactional accountability. As with business judgment rule scholarship generally, a failing of the academic literature on takeovers is the almost universal tendency to conflate the roles of corporate officers and directors. The legal literature speaks of “management resistance” and “management defensive tactics,” rarely recognizing any separate institutional role for the board. Most commentators simply assume that even independent directors are in thrall to senior managers and will ignore shareholder interests if necessary to preserve their patrons’ jobs.[2]

In contrast, the Delaware courts take the board’s distinct role quite seriously, especially with respect to its independent members. As a doctrinal matter, the board’s burden of proof is more easily carried if the key decisions are made by independent directors.[3] As a practical matter, the court’s assessment of the outside directors’ role often is outcome-determinative.[4]

Why have the Delaware courts insisted on drawing such sharp distinctions between the board’s role and that of management? Because while the conflict of interest unsolicited tender offers pose for the target company’s managers is inescapable, the independent director’s conflict of interest is merely a potential problem. For the independent directors, the conflicts posed by unsolicited tender offers are no different than those posed by freezeout mergers, manage­ment buyouts, interested director transactions, or a host of similar situations. Corporate law neither prohibits these transactions, nor requires complete board passivity in connection with them, simply because they potentially involve conflicts of interest. Instead, it regulates them in ways designed to constrain self-interested behavior. Unless one makes a living on the buy-side of corporate takeovers, it is not clear why hostile takeovers should be treated differently.

Consider, for example, the somewhat analogous case of management-sponsored leveraged buyouts. Like unsolicited tender offers, these transactions inherently involve a strong risk of management self-dealing. While management is acting as the sellers’ agents and, in that capacity, is obliged to get the best price it can for the shareholders, it is also acting as a purchaser and, in that capacity, has a strong self-interest to pay the lowest possible price. Like unsolicited tender offers, management buyouts also create conflicts of interest for the independent directors. Just as an independent director may resist an unsolicited tender offer to avoid being fired by the hostile bidder, he may go along with a management buyout in order to avoid being fired by the incumbent managers. Alternatively, if an independent director is inclined to resist a hostile takeover because of his friendship with the insiders, why should he not go along with a management-sponsored buyout for the same reason? Strikingly, however, the empirical evidence indicates that shareholder premiums are essentially identical in management-sponsored leveraged buyouts and arms-length leveraged buyouts.[5] This evidence suggests that the potentially conflicted interests of independent directors are not affecting their ability to successfully constrain management misconduct. Accordingly, while judicial review of management buyouts tends to be rather intensive, courts have not prohibited such transactions, but have addressed the problem of conflicted interests by encouraging an active role for the firm’s independent directors in approving a management buyout proposal.[6] Why should the same not be true of the board’s response to unsolicited tender offers?

In sum, the conflict of interest present when the board responds to an unsolicited tender offers thus differs only in degree, not kind, from any other corporate conflict. Although skepticism about their motives is thus appropriate, their conflict of interest does not necessarily equate to blameworthiness. Rather, it is simply a state of affairs inherently created by the necessity of conferring authority in the board of directors to act on behalf of the shareholders. To be sure, proponents of the no resistance rule will respond that such a state of affairs could be avoided by declining to confer such authority on the board in this context. Yet, if the legal system deprives the board of authority here, it will be hard-pressed to decline to do so with respect to other conflict transactions. As has been the case with other situations of potential conflict, we therefore would expect the courts to develop standards of review for takeover defenses that are designed to detect, punish, and deter self-interested behavior. Because the risk may be greater in this context, stricter than normal policing mechanisms may be required, but this does not mean that we must set aside authority values by divesting the board of decisionmaking authority.

Systemic accountability. Because the incumbent directors and management’s transactional conflict of interest is neither so severe nor unusual as to justify a wholly new governance system for tender offers, opponents of target resistance to tender offers must find some other basis for depriving the board of its normal decisionmaking authority. For most critics of takeover defenses, such a basis is to be found in the systemic agency cost effects of management resistance. Sharfman and Moore, for example, make this point at pp. 22-23.

In agency cost theory, disciplinary actions against employees and mid-level managers are expected to take the form of dismissals, demotions, or salary adjustments imposed by senior management. Where it is senior management that requires discipline, however, alternative mechanisms become necessary. According to the standard academic account, hostile takeover bidders provide just such a mechanism. Making the standard efficient capital market assumption that poor corporate performance will be reflected in the corporation’s stock price, opponents of target resistance claim that a declining market price sends a signal to prospective bidders that there are gains to be had by acquiring the corporation and displacing the incumbent directors and managers. Of course, the signal will not always be correct. Sometimes the firm’s market price may be declining despite the best efforts of competent management, as where some exogenous shock—such as technological change or new government regulation—has permanently altered the corporation’s fundamentals. If close examination by a prospective bidder reveals that the declining market price is in fact attributable to shirking by senior management, however, a disciplinary takeover could produce real gains for division between the target’s shareholders and the successful acquirer. This prospect creates positive incentives for potential bidders to investigate when the market signals a firm is in distress. Conversely, because keeping the stock price up is the best defense managers have against being displaced by an outside searcher, the market for corporate control—more specifically, the unsolicited tender offer—is an important mechanism for prevent­ing manage­ment slacking. Indeed, some would argue, the market for control is the ultimate monitor that makes the modern business corpora­tion feasible.

By making possible target resistance to unsolicited takeover bids, so the theory goes, takeover defenses thus undermine the very foundations of corporate governance. The first prospective bidder to identify a prospective target incurs significant search costs, which become part of the bidder’s overall profit calculation. By announcing its offer, however, the first bidder identifies the prospective target to all other potential bidders. Subsequent bidders thus need not incur the high search costs carried by the first bidder, perhaps allowing them to pay a higher price than is possible for the first bidder. If target resistance delays closing of the offer, subsequent bidders have a greater opportunity to enter the fray. At the very least, target resistance may force the initial bidder to raise its offer, reducing the gains to search. Target resistance therefore reduces bidders’ incentives to search out takeover targets. Reductions in bidders’ search incentives results in fewer opportuni­ties for shareholders to profit from takeover premia. More important, a reduction in search incentives also reduces the effectiveness of interfirm monitor­ing by outsiders. In turn, that reduces the market for corporate control’s disciplinary effect. A rule prohibiting target resistance is therefore likely to decrease agency costs, and increase stock prices, benefiting shareholders of all firms, even those whose companies are never targeted for a takeover bid.[7]

All well and good, but who died and left the unsolicited tender offer in charge? A no resistance rule in effect creates a kind of private eminent domain: bidders can effectively “condemn” target shares by offering even a slight premium over the current market price.[8] Awarding the lion’s share of the gains to be had from a change of control to the bidder, however, only makes sense if all gains from takeovers are created by bidders through the elimination of inept or corrupt target managers and none are attributable to the hard work of efficient target managers. Unfortunately for proponents of the no resistance rule, the evidence is that takeovers produce gains for a variety of reasons that are likely to differ from case to case.[9]

In order for a no resistance rule to make sense, the unsolicited tender offer also must be the critical mechanism by which incumbents are disciplined. In fact, however, unsolicited tender offers are so rare and sporadic that a director or manager who shirks his responsibilities by playing golf when he should be working is undoubtedly more likely to be struck by lightening while on the course than to be fired after a hostile takeover. As a result, the disciplinary effect of takeovers has been grossly overstated by proponents of the no resistance rule. Instead, as our analysis of Delaware’s takeover jurisprudence will suggest, the critical disciplinary mechanism is the board of directors, especially the independent directors. In turn, the tenure and reputation of outside board members are determined by the performance of the inside managers, which gives indepen­dent directors incentives to be vigilant in overseeing management’s conduct.

If independent directors were the sole bulwark against managerial shirking, concerns about structural and actual bias might be troubling, but they do not stand alone. Although monitoring by institutional investors is weak, and problematic given our theory of the firm, it likely has some effects on the margins. Whatever one makes of institutional investor activism as a monitoring device, important accountability mechanisms continue to be supplied by the product market in which the firm operates and the internal and external job markets for the firm’s managers.[10] Corporate directors and managers do not get ahead by being associated with sub-par performance in the product markets. Indeed, as between shareholders and managers, it is the latter who have the greatest incentives to ensure the firm’s success. Shareholders can and should hold diversified portfolios, so that the failure of an individual firm will not greatly decrease their total wealth, while managers cannot diversify their firm-specific human capital (or their general human capital, for that matter). If the firm fails on their watch, it is the incumbent directors and managers who suffer the principal losses.

It is for this reason that the capital markets also have a disciplinary function. Incompetent or even unlucky management eventually shows up in the firm’s performance. These signs are identified by potential debt or equity investors, who (if they are willing to invest at all) will demand a higher rate of return to compensate them for the risks of continued suboptimal performance. In turn, this makes the firm more likely to flounder—taking the incumbent managers down with it.

Our point is not that the tender offer has no disciplinary effect, but merely that the tender offer is only one of many mechanisms by which management’s behavior is constrained. Once we view corporate governance as a system in which many forces constrain management behavior, the theory of the second best becomes relevant. In a complex, interdependent system, it holds that inefficiencies in one part of the system should be tolerated if “fixing” them would create even greater inefficiencies elsewhere in the system as a whole.[11]Even if we concede the claim that a no resistance rule would reduce agency costs, such a rule would still be inappropriate if it imposes costs in other parts of the corporate governance system. By restricting the board’s authority with respect to tender offers, the various academic proposals impose just such costs by also restricting the board’s authority with respect to the everyday decisions upon which shareholder wealth principally depends. Accordingly, it is not surprising that Delaware has rejected the academic approach to the unsolicited tender offer. This half of Delaware’s takeover jurisprudence, like that regulating negotiated acquisitions, is best explained as implicitly concluding that the benefits of preserving authority outweighs the costs of doing so.

Reminder: If you want much more detail, be sure to check out my article Unocal at 20: Director Primacy in Corporate Takeovers, 31 DEL. J. CORP. L. 769 (2006), on which the posts have drawn.

Were Easterbrook and Fischel right that target company boards should remain passive in the face of a hostile takeover bid? A comment on Sharfman and Moore. Part 2

In Part I of this essay, I discussed a new article by Bernard Sharfman and Marc Moore, in which they propose reviving the passivity thesis, which argued that target boards faced with a hostile takeover offer should be passive.

A long time ago, in my article, Unocal at 20: Director Primacy in Corporate Takeovers,[1] I explained why I disagree with the passivity thesis. My analysis grew directly out of my director primacy model of corporate governance. Because I still think a board-centric approach to corporate governance is appropriate, even in the context of a hostile takeover bid, let me summarize my argument here. I encourage you to go read the whole thing, however.

Given the Delaware courts’ normal sensitivity to conflicts of interests, the clear evidence that management resistance to unsolicited tender offers is at best a risky proposition for shareholders and at worst economically disastrous (note that I do not quibble with the empirical evidence Sharfman and Moore rehearse at 38-55, I'm just not persuaded it overcomes the arguments herein), and the undeniable fact that the no resistance rule does a more thorough job of removing management’s conflicted interests from the tender offer process than does Unocal, is it not surprising that Delaware courts adopted a standard that permits target resistance? The Delaware courts’ consistent rejection of the no resistance rule suggests that the courts have perceived some dimension to the puzzle that has escaped the attention of academics.

Analysis should begin with the proposition that all doctrinal responses to corporate conflict of interest transactions have two features in common. First, so long as the board of directors is disinterested and independent, it retains full decision-making authority with respect to the transaction.[2] Second, the board’s indepen­dence and decision-making process is subject to judicial scrutiny. Here, as ever, we see the competing influences of authority and accountability.

In a sense, Delaware’s takeover cases do no more than to simply bring this traditional corporate governance system to bear on target resistance to tender offers.[3] Admittedly, the form of review is unique, but so too is the context. Just as has been the case with all other corporate conflicts of interest, Delaware decisions in the unsolicited tender offer context strive to find an appropriate balance between authority and accountability. We see the courts’ concern for accountability in, for example, Unocal’s explicit recognition of the conflict of interest that target directors and officers face in an unsolicited takeover bid. Of course, it is one thing to recognize this conflict of interest and quite another to do something about it. As a doctrinal matter, the Delaware supreme court concretely demonstrated its sensitivity to management’s conflicted interests by placing the preliminary burden of proof on the board. This action demonstrated considerable judicial sensitivity to the board’s conflicted interests, because outside of areas traditionally covered by the duty of loyalty, putting the initial burden of proof on the board of directors is a very unusual—indeed, essentially unprecedented—step.

At the same time, however, we see the value of authority reflected in, for example, Unocal’s express rejection of the passivity model. Even plainer evidence of the Delaware courts’ concern for authority came when Chancellor Allen wrote that unless Unocal was carefully applied “courts—in exercising some element of substantive judgment—will too readily seek to assert the primacy of their own view on a question upon which reasonable, completely disinterested minds might differ.”[4] Is it not striking how precisely Allen echoes our argument that one cannot make an actor more accountable without simultaneously transferring some aliquot of his decision-making authority to the entity empowered to hold him to account?

In contrast, virtually all of the policy prescriptions to emerge from the academic accounts of the tender offer’s corporate governance role would create an entirely corporate governance system, in which the board is stripped of some or all of its normal decision-making authority. Recast in our terminology, the academic proposals reflect an overriding concern with accountability. There is no room in the academic account for the value of authority. Indeed, the academic proposals reject the very notion that authority has any legitimate role to play in developing takeover doctrine. Deciding whether the judiciary or the ivory tower has the better argument is the task to which the remainder of this section is devoted.

We approach the problem by asking whether the unsolicited tender offer differs in kind, not just degree, from any other conflicted interest transaction. If so, perhaps a special governance scheme applicable only to unsolicited tender offers can be justified. If not, however, we would expect the law to treat unsolicited tender offers just as it treats other conflicted interest transactions. In other words, the law can be expected to develop mechanisms for policing incumbent conflict of interests, but cannot be expected to deny incumbents a role in the process.

The question of comparative advantage

According to most critics of Delaware’s takeover jurisprudence, corporate law gives the board decision-making authority because in most situations the directors have a competitive advantage vis-a-vis the shareholders in choosing between competing alternatives. They then argue that directors have no such competi­tive advantage when it comes to making tender offer decisions and, accordingly, reject granting the board decision-making authority in the tender offer context. Certainly, it is true that even the most apathetic investor is presumably capable of choosing between an all-cash bid at $74 per share and an all-cash bid at $76. This analysis, however, obscures two important rationales for granting the board decision-making authority in the tender offer context.

At the outset, it is important to recognize that unsolicited tender offers and negotiated acquisitions have a good deal in common. From a practical perspective, it is often increasingly difficult to tell the two apart. In today’s market place most takeovers follow a fairly convoluted path. They start out quasi-hostile, but end up as quasi-friendly, or vice-versa. They start out as a merger proposal, which is restructured as a tender offer for tax or other business reasons, or vice-versa. The problem is usefully illustrated by Chancellor Allen’s opinion in TW Services v. SWT Acquisition.[5] SWT’s unsolicited partial tender offer for TW Services was subject to a number of conditions, including a requirement that the transaction be approved by TW Services’ board of directors. The TW Services’ board saw the tender offer as a ruse designed to extort greenmail or to put the company into play. Accordingly, the board declined to redeem the company’s outstanding poison pill. SWT filed a lawsuit seeking invalidation of the pill. Because SWT conditioned its offer on the TW Service board’s support, the case presented a problem of characterization that the legal literature largely ignores. If the transaction is characterized as a merger, then most commentators would permit the board an active decision-making role. Conversely, if the transaction is characterized as a tender offer, they would preclude the board from exercising decision-making authority. Categorizing this transaction, however, is a non-trivial task.[6] Attempting to define the scope of the board’s authority by the nature of the transaction at hand thus quickly proves an unsatisfactory resolution.

Even if one were wholly confident of one’s ability to appropriately characterize transactions, however, the comparative advantage argument still would not justify precluding the board from exercising decision-making authority in tender offers. Consider transactions like the defensive restructuring at issue in City Capital Associates v. Interco. In the face of an all-cash hostile bid at $74 per share, Interco’s board of directors proposed to sell certain assets and to borrow a substantial amount of money. The joint proceeds of those transactions would then be paid out to Interco’s shareholders as dividends. The dividends would be paid in three forms: cash, bonds, and preferred stock. The dividends’ total value was said to be $66 per share. Interco’s investment banker opined that, after this series of transactions, Interco’s stock would trade at no less than $10 per share. The proposed defensive measures thus purportedly would give Interco’s shareholders a total value of $76—$2 more than the hostile bid. In rebuttal, the bidder’s investment bankers valued the defensive plan at $68-$70 per share.[7] It is precisely because passive, widely dispersed shareholders have neither the inclination nor the information necessary to decide between these sort of alternatives that the corporate law in other contexts allocates the decision to the board.[8] Only compelling accountability concerns can justify treating tender offers differently. The comparative advantage argument thus collapses into a variant of the agency cost arguments discussed below.

The bypass argument

An alternative justification for treating the tender offer differently than negotiated acquisitions rests on the former’s elimination of the need for target management’s cooperation. As we saw above, the target board’s gatekeeper role in negotiated acquisitions creates a conflict of interest, which is constrained principally by the ability the tender offer gives a bidder to bypass the target’s board by purchasing a controlling share block directly from the stockhold­ers. According to some academics, authority values thus are only appropriate in the negotiated acquisition context if the board is denied the ability to resist tender offers.[9]

This argument looks good on paper, but ultimately is unpersuasive. In the first place, it too ignores the problem of characterization alluded to in the preceding section. In addition, tender offers are not the only vehicle by which outsiders can appeal directly to the shareholders. Proxy contests similarly permit a would-be acquirer to end-run management. How a shareholder votes in director elections seems just as an individual decision as that of whether to tender to a hostile bidder. Yet, nobody expects a board to be passive in the face of a proxy contest. To the contrary, the incumbent board’s role is very active indeed. Why? Because the incumbent board members remain in office and therefore also continue to be legally responsible for the conduct of the business until they are displaced. Complete passivity in the face of a proxy contest thus would be inconsistent with the directors’ obligation to determine and advance the best interests of the corporation and its shareholders.[10]

The same is true of a tender offer. While the analogy between tender offers and proxy contests is unconvincing for most purposes, the courts may have correctly sensed a fit at this most basic level. The directors will remain in office unless the offer succeeds and they thereafter resign or are removed by the new owner. As a doctrinal matter, the board of directors has a “fundamental duty” to protect shareholders from harm, which can include an unsolicited tender offer that the directors truly believe is not in the shareholders’ best interests. As Unocal recognized, complete passivity in the face of such an offer would be inconsistent with their fiduciary duties.[11] To the contrary, their on-going fiduciary duty obliges them to seek out alternatives. At the bare minimum, it thus would be appropriate for the board to use takeover defenses to delay an inadequate bid from going forward while the board seeks out an alternative higher-valued offer, because until the board has time to arrange a more attractive alternative there is a risk that the shareholders will “choose an inadequate tender offer only because the superior offer has not yet been presented.”[12]

The structural argument (a.k.a. shareholder choice)

A more substantial argument against authority values in the unsolicited tender offer context contrasts the board’s considerable control in negotiated acquisitions with the board’s lack of control over secondary market transactions in the firm’s shares. Corporate law generally provides for free alienability of shares on the secondary trading markets. Mergers and related transfers of control, however, are treated quite differently. As we saw above, corporate law gives considerable responsibil­ity and latitude to target directors in negotiating a merger agreement. The question then is whether unsolicited tender offers are more like secondary market trading or mergers.

The so-called structural argument—also known as the shareholder choice argument—asserts that the tender offer is much more closely analogous to the former. According to its proponents, an individual shareholder’s decision to tender his shares to the bidder no more concerns the institutional responsibilities or prerogatives of the board than does the shareholder’s decision to sell his shares on the open market or, for that matter, to sell his house.[13] Both stock and a home are treated as species of private property that are freely alienable by their owners.

The shareholder choice argument actually cuts against one of Sharfman and Moore’s arguments. They suggest (at 23-24) that some hostile bids are motivated by private information asymmetrically held by the bidder. I doubt that happened very often even in the hostile takeover’s heyday, but if true would not allowing a bidder to act on that information be inconsistent with shareholder choice? After all, we no longer live in a world of caveat emptor. Major purchases these days come with masses of disclosure (I vividly recall the mountain of information I reviewed at my house closing). Assume the law requires the bidder to disclose its private information. Would the passivity thesis preclude management from undertaking changes in response to learning that information?

In any case, none of the normative bases for the structural argument prove persuasive. That shareholders have the right to make the final decision about an unsolicited tender offer does not necessarily follow, for example, from the mere fact that shareholder have voting rights. While notions of shareholder democracy permit powerful rhetoric, corporations are not New England town meetings. Put another way, we need not value corporate democracy simply because we value political democracy.[14]

Indeed, we need not value shareholder democracy very much at all. In its purest form, our authority-based model of corporate decision making calls for all decisions to be made by a single, central decision-making body—i.e., the board of directors. If authority were corporate law’s sole value, shareholders thus would have no voice in corporate decision making. Shareholder voting rights thus are properly seen not as part of the firm’s decisionmaking system, but as simply one of many accountability tools—and not a very important one at that.

Nor is shareholder choice a necessary corollary of the shareholders’ ownership of the corporation. The most widely accepted theory of the corporation, the nexus of contracts model, visualizes the firm not as an entity but as a legal fiction representing a complex set of contractual relation­ships. Because shareholders are simply one of the inputs bound together by this web of voluntary agreements, ownership is not a meaningful concept under this model. Each input is owned by someone, but no one input owns the totali­ty. A shareholder’s ability to dispose of his stock thus is not defined by notions of private property, but rather by the terms of the corporate contract, which in turn are provided by the firm’s organic documents and the state of incorporation’s corporate statute and common law. The notion of shareholder ownership is thus irrelevant to the scope of the board’s authority. As Vice Chancellor Walsh observed, “shareholders do not possess a contractual right to receive takeover bids. The shareholders’ ability to gain premiums through takeover activity is subject to the good faith business judgment of the board of directors in structuring defensive tactics.”[15]

Finally, and most importantly, the structural argument also ignores the risk that restricting the board’s authority in the tender offer context will undermine the board’s authority in other contexts. Even the most casual examination of corporate legal rules will find plenty of evidence that courts value preservation of the board’s decision-making authority. The structural argument, however, ignores the authority values reflected in these rules. To the contrary, if accepted, the structural argument would necessarily undermine the board’s unquestioned authority in a variety of areas. Consider, for example, the board’s authority to negotiate mergers. If the bidder can easily by-pass the board by making a tender offer, hard bargaining by the target board becomes counter-productive. It will simply lead to the bidder making a low-ball tender offer to the shareholders, which will probably be accepted due to the collective action problems that preclude meaningful shareholder resistance. Restricting the board’s authority to resist tender offers thus indirectly restricts its authority with respect to negotiated acquisitions.[16]

Indeed, taken to its logical extreme, the structural argument requires direct restrictions on management’s authority in the negotiated acquisition context. Suppose management believes that its company is a logical target for a hostile takeover bid. One way to make itself less attractive is by expending resources in acquiring other companies. Alternatively, the board could effect a preemptive strike by agreeing to be acquired by a friendly bidder. In order to assure that such acquisitions will not deter unsolicited tender offers, the structural argument would require searching judicial review of the board’s motives in any negotiated acquisition.

To take but one more example, it is quite clear that managers can make themselves less vulnerable to takeover by eliminating marginal operations or increasing the dividend paid to shareholders and thus enhancing the value of the outstanding shares. A corporate restructuring thus can be seen as a preemptive response to the threat of takeovers. It is hard to imagine valid objections to incumbents securing their position through transactions that benefit shareholders.[17] Why then should it matter if the restructuring occurs after a specific takeover proposal materializes? The structural argument not only says that it does matter, but taken to its logical extreme would require close judicial scrutiny of all corporate restructurings.