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Contrary to Ewan McGaughey, Dodge v. Ford Motor Co. is still good law in Michigan

As I work away at my new book The Profit Motive: Defending Shareholder Wealth Maximization, I've been researching the foundational American corporate law decision: Dodge v. Ford Motor Co., 170 N.W. 668(Mich. 1919).

As informed readers will know, Dodge held that:

A business corporation is organized and carried on primarily for the profit of the stockholders. The powers of the directors are to be employed for that end. The discretion of directors is to be exercised in the choice of means to attain that end, and does not extend to a change in the end itself, to the reduction of profits, or to the nondistribution of profits among stockholders in order to devote them to other purposes.

I'm specifically working on the chapter defending Dodge from the attacks that have been widely aimed at it by progressive corporate law scholars, one of which is a question posed by the late Lynn Stout: "Why rely on a case that is nearly one hundred years old if there is more modern authority available?” Her argument actually conflates two distinct claims. One is that there is modern authority that contradicts Dodge. As we shall see, however, modern authority supports Dodge. The other component claim is that old cases have minimal precedential weight." Lynn A. Stout, Why We Should Stop Teaching Dodge v. Ford, 3 Va. L. & Bus. Rev. 163, 166 (2008).

In researching the former component of Stout's argument, I ran across the following claim by Ewan McGaughey of King’s College, London and The London School of Economics and Political Science: 

... the claim that “shareholder primacy” is the “traditional paradigm” is absurd. The single case reference is predictably Dodge v. Ford Motor Co., 204 Mich. 459 (1919) which does not represent the law in the vast majority of states, including Michigan. See Lynn A. Stout, Why We Should Stop Teaching Dodge v. Ford (UCLA, Law-Econ Research Paper No. 07-11, 2007).

Ewan McGaughey, The Codetermination Bargains: The History of German Corporate and Labor Law, 23 Colum. J. Eur. L. 135, 176 n.71 (2016).

I took note of that claim because, as long time readers will recall, McGaughey was the fellow who subjected me to the Reductio ad Hitlerum a few years back.

I am unable to find any specific reference in the SSRN version of Lynn's article to Dodge's status as a matter of Michigan law. More generally, her discussion of the case law is more nuanced than McGaughey suggests. She thinks almost all of the cases on point are dicta and that the one non-dicta decision, Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., is "a dead letter." So I think Lynn's article provides very weak support for McGaughey's description of the law, at best.

Turning to the actual law, a 1935 Michigan Supreme Court decision cited Dodge with approval. Wagner Electric Corp. v. Hydraulic Brake Co., 257 N.W. 884, 887 (Mich. 1934). So did a 2006 Michigan Court of Appeals decision. Wojcik v. McNish, 2006 WL 2061499, at *5 (Mich. App. July 25, 2006). Most recently, a 2020 Michigan federal court decision concluded that it was still “well established under Michigan law that the primary purpose of a business corporation is to benefit and profit the stockholders.” Smith v. Smith, 2020 WL 2308683, at *8 (E.D. Mich. May 8, 2020) (emphasis supplied), citing Dodge for that proposition.

In addition, a 2003 Michigan appellate court decision, Churella v. Pioneer State Mut. Ins. Co., 671 N.W.2d 125 (Mich. App. 2003), explained that Michigan law draws an important distinction between business corporations and mutual insurance companies. While “the purpose of a business corporation is to provide profit to its shareholders . . . this is not the purpose of a mutual insurance company. The purpose of a mutual insurance company is to provide affordable insurance coverage to its members.” Id. at 132. The court specifically cited Dodge for its statement of the purpose of a business corporation. Id.

To repeat: Dodge is a “well established" proposition of Michigan law.

As for whether Dodge is good law in other states, while you wait to read my book (in about a year), I refer you to the relevant portion of my article Making Sense of the Business Roundtable's Reversal on Corporate Purpose, 46 J. Corp. L. 285, 289ff (2021).

Statement by SEC Commissioners Peirce and Roisman Slamming Chair Gensler’s Regulatory Agenda

Peirce and Roisman slam Gary Gensler's agenda:

While Chair Gary Gensler’s newly released regulatory agenda is ambitious in scope, we are disappointed with its content. It fails to include any items intended to facilitate capital formation and misses opportunities to foster fair, orderly, and efficient markets and further investor protection. Instead the agenda is brimming with plans to redo recently completed rules, add new regulatory obligations, and constrain investor choice. ...

The Agenda makes plenty of room for rulemakings to undo rulemakings that the Commission only recently completed.  These include proposals to further amend our rules on proxy solicitation and shareholder proposals; the Resource Extraction Payments Rule; the rules pertaining to the accredited investor definition and the private offering exemption integration framework; as well as our whistleblower rules. Not only are the Commission’s most recent amendments to each of these rules barely or less than a year old; none have been effective for more than a few months. As we said when we initially raised these concerns, we have not seen any new information that would warrant opening up any of these rules for further changes at this time.  So, why the rush to revisit them?

Why, indeed. The whole thing makes depressing reading.

Skadden speculates that Caremark is no longer the hardest corporate law claim to prove

A new post at CLS Blue Sky Blog reports on recent Caremark decisions suggesting "that directors may be more exposed to such claims than they have been in the past." The authors conclude that these cases "highlight the critical importance of establishing and monitoring company reporting systems for 'essential and mission critical' compliance risk."

All of which leads Skadden to speculate that:

Despite two and a half decades of Caremark decisions stressing the high bar for pleading a breach of the duty of loyalty premised on oversight liability, the recent decisions from the Delaware courts indicate a willingness to entertain well-pled oversight claims involving “essential and mission critical” issues for a company’s compliance risk. While these cases repeat the prior court statements about how difficult these claims are to plead, they suggest that, in practice, that may no longer be the case.

Regular readers, of course, will recall my article Don’t Compound the Caremark Mistake by Extending it to ESG Oversight (September 2021), forthcoming in Business Lawyer (2022). Available at SSRN: https://ssrn.com/abstract=3899528, in which I argue that:

Since the foundational decision in In re Caremark Intern. Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996), Delaware corporate law has required boards of directors to establish reasonable legal compliance programs. Although Caremark has been applied almost exclusively with respect to law and accounting compliance, the original Caremark decision contemplated applying the oversight duty to the corporation’s “business performance.” Accordingly, there is no doctrinal reason that Caremark claims should not lie in cases in which the corporation suffered losses, not due to a failure to comply with applicable laws, but rather due to lax risk management.

The question thus arises as to whether Caremark should be extended to board failures to exercise oversight with respect to environmental, social, and governance (ESG) factors. Obviously, where existing legislation or regulations impose compliance obligations in ESG-related areas, such as human resources, the environment, or worker safety, Caremark already applies. As such, boards must “ensure that compliance and monitoring systems are in place” to oversee corporate compliance with those laws.

Many ESG issues are not yet the subject to legal requirements, however. The question addressed in this Article is whether the board’s Caremark obligations should be extended to encompass oversight of corporate performance with such issues. In other words, should the board face potential liability not just for failing to ensure that the company has adequate reporting and monitoring systems in place to insure compliance with ESG-related legal requirements, but also to monitor ESG risks in areas where corporate compliance would be voluntary or aspirational.

Ideally, of course, I'd like to see Caremark reversed and for Delaware to return to the Graham v. Allis-Chalmers regime, but I'm not holding my breath. At the very least, however, we need to stop expanding it.