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Kevin LaCroix on Boeing and Caremark

As regular readers know, I regard Kevin LaCroix's D&O Diary blog as essential corporate governance reading. So I was interested to see his take on the new Boeing decision and its implications for the future of Caremark claims. In a post a couple of days agp, I took a rather alarmist view of the opinion. Mr. LaCroix's view is less alarmist, but he does agree that we'll be seeing more oversight claims in the future.

He argues that:

... while there have been several significant recent cases in which breach of the duty of oversight claims have been sustained, even the rulings allowing these kinds of claims to go forward have emphasized pleading requirements that may not be satisfied in many circumstances. The holdings in these cases emphasize that to state a claim, the plaintiff must be able to allege that the company operation is “mission critical” for the oversight duty to be triggered. In order to establish that the board failed in its oversight, the plaintiff must allege the absence of any board committee function or board processes to supervise the critical operation. And while Vice Chancellor Zurn concluded here that the Boeing board acted with scienter, establishing that a board acted with awareness of its oversight shortcomings is going to be a significant pleading hurdle for plaintiffs in many instances.

He then identifies some facts that admittedly make Boeing an unusually strong case for plaintiffs:

I think there are important and distinct circumstances involved here that have a lot to do with the outcome. The exceptional occurrence of two tragic air disasters not only dramatically highlight the critical importance of safety issues for Boeing (just as the deaths from the listeria outbreak did the same in Marchand), but put the actions and inactions of the board in a particularly harsh light. The way Zurn’s opinion is written suggests that she was troubled by the plaintiffs’ allegations, a perspective that undoubtedly has something to do with the two fatal air crashes only five months apart. I emphasize this because it is going to be a relatively rare set of circumstances where board actions are subjected to this kind of harsh light.

I take his point. But I still think Boeing at the very least is chumming the litigation waters. As Mr. LaCroix observes "the recent spate of breach of the duty of oversight cases will encourage plaintiffs to pursue these kinds of claims and to include claims of breach of the duty of oversight in cases in which companies have experienced significant adverse circumstances in important operations." I concur.

He concludes with some good advice for what boards should be doing on a going forward basis. Go read the whole thing.

After Boeing, Caremark is no longer "the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment"

“It has become among the hoariest of Chancery clichés for an opinion to note that a derivative claim against a company’s directors, on the grounds that they have failed to comply with oversight duties under Caremark, is among the most difficult of claims in this Court to plead successfully.” Teamsters Local 443 Health Servs. & Ins. Plan v. Chou, 2020 WL 5028065, at *1 (Del. Ch. Aug. 24, 2020).

As I explained in my post, Is Caremark still the hardest claim for plaintiffs to win in corporate law?, there has been a steady erosion of that principle in the Delaware courts. Indeed, it is getting easier and easier for a plaintiff to at the very least get past the motion to dismiss stage of the litigation (at which point the pressure on defendants to settle becomes almost unbearable).

Yesterday's opinion in In re The Boeing Company Derivative Litigation by  Delaware Vice Chancellor Zurn is the latest nail in that cliche's coffin. 

To be sure, VC Zurn's opinion includes the right quotes about how difficult it is to win on a Caremark claim. But I see a number of reasons to doubt whether those quotes mean all that much anymore.

Zurn relies heavily on Marchand. But Marchand involved an ice cream maker--a mono-line company--whose entire operations were shut down after a listeria outbreak resulted in the deaths of three customers. But here any alleged deficiencies went solely to the board's alleged lack of oversight with respect to one of Boeing's many products (namely the 737 MAX). Boeing never shut down its entire operation.

Now it is true that, as Zurn observes, "Like food safety in Marchand, airplane safety 'was essential and mission critical' to Boeing’s business, and externally regulated." But you could say the same thing about any manufacturer. After all, how many products these days come without safety warnings? How many production lines are not extensively regulated? Zurn's approach leaves every manufacturer vulnerable to Caremark claims.

Zurn echoes Marchand in complaining that Boeing had no board-level committee to supervise airline safety risk. But, prior to Marchand, it was hardly obvious that a board-level committee with respect to every major risk a company faces was a Caremark requirement. To the contrary, Caremark required that there be a process by which the board as a whole was kept informed.

Zurn also echoes Marchand in opining that the board didn't promptly discuss the first 737 MAX crash. But so what? Caremark requires ongoing supervision and the defendants apparently offered plenty of evidence that the board regularly discussed safety. 

Zurn's dismissal of that evidence is really the key part of the opinion:

The Board and management’s passive invocations of quality and safety, and use of safety taglines, fall short of the rigorous oversight Marchand contemplates. (emphasis supplied)

If courts are going to examine board decisions about oversight with a microscope and mandate that oversight "be rigorous" then it is no longer true that Caremark claims will be the most difficult corporate law claims to prove. Indeed, that will no longer be a cliche but a falsehood.

Zurn condemns the board's post-crash effort to draw lessons learned, arguing that they evidence the board's pre-crash oversight failures. One wonders what that will do to the incentives of future boards to commission rigorous after-action reports? A board that does so will be shooting itself in the foot.

I am not claiming that Boeing's board was perfect. Far from it. But Zurn's opinion reads like a brief for the plaintiffs rather than an effort to hold plaintiffs to what is supposed to be an “onerous pleading burden.” At every turn, evidence favorable to the defendants is rubbished and evidence favorable to the plaintiffs is accepted. Granted, we're at the motion to dismiss stage. But Caremark claims are supposed to be disposed of at the motion to dismiss stage. See Elizabeth Pollman, Corporate Oversight and Disobedience, 72 VAND. L. REV. 2013, 2021-25 (2019) (finding that few cases alleging director-oversight failures survive the motion to dismiss stage).

I may be overreacting. If so, it is because I firmly believe Marchand was wrongly decided. Boeing seems like another step towards making Marchand the general standard and thereby continuing the evisceration of the supposed limits that remain on Caremark.

Those beliefs coupled with the trend in the Delaware courts towards making Caremark claims the easiest claims to prove in corporate law prompted me to write Don’t Compound the Caremark Mistake by Extending it to ESG Oversight (August 4, 2021). Business Lawyer (September 2021), UCLA School of Law, Law-Econ Research Paper No. 21-10, Available at SSRN: https://ssrn.com/abstract=3899528. If I may say so, Boeing makes that article's argument even more timely and essential.

Update: Kevin LaCroix is less alarmist, but concurs that we'll be seeing more of these cases.

Valuation of a Business in Legal Settings I: Discounting to Present Value

The Reader's Digest Condensed Version of my Article, Don’t Compound the Caremark Mistake by Extending It to ESG Oversight, is Up

Here

A Quibble re Delaware's Law on Special Litigation Committees

Keith Paul Bishop writes:

California follows the New York approach to the review of special litigation committee decisions to terminate derivative suits:

While the substantive aspects of a decision to terminate a shareholders' derivative action against defendant corporate directors made by a committee of disinterested directors appointed by the corporation's board of directors are beyond judicial inquiry under the business judgment doctrine, the court may inquire as to the disinterested independence of the members of that committee and as to the appropriateness and sufficiency of the investigative procedures chosen and pursued by the committee.

Auerbach v. Bennett,  393 N.E.2d 994, 996 (1979).   The California Court of Appeal adopted Auerbach in Desaigoudar v. Meyercord, 108 Cal. App. 4th 173, 188 (2003).  Delaware adds a second step to Auerbach in which the court applies its own business judgment to the committee's conclusion.   Zapata Corp. v. Maldonado 430 A.2d 779, 787–789 (Del. 1981).

Not quite. In addition to adding a second step, Delaware also modified the first step of Auerbach. As I explain in my book Corporate Law:

In Zapata, the Delaware supreme court specifically rejected Auerbach’s conclusion that the business judgment rule applies to a SLC’s recommendations. Instead, the court laid out a new set of procedures to be followed in such cases. After an “objective and thorough investigation,” the committee may cause the corporation to file a motion to dismiss the derivative action. The motion should include a written record of the committee’s investigation and its findings and recommendations. Each side is given a limited opportunity for discovery with respect to the court’s mandated areas of inquiry.

In deciding whether to dismiss the action, the court is to apply a two-step test: (1) The court should inquire into the independence and good faith of the committee. The court also should inquire into the bases supporting the committee’s recommendations. The corporation will have the burden of proving independence, good faith, and a reasonable investigation. (2) If the first step is satisfied, the court may but need not go on to apply its own business judgment to the issue of whether or not the case is to be dismissed.

The first step differs from Auerbach in that the Delaware court looks not only at the procedures used, but also at the reasonableness of the basis for the committee’s decision—something Auerbach expressly forbids.

The Alliance for Fair Board Recruitment is also the lead plaintiff in a challenge to the California Board Quota Laws

In addition to suing over the NASDAQ board diversity listing standard, the Alliance for Fair Board Recruitment is also the lead plaintiff in a suit challenging the California board of director racial and gender quota laws. 

Unlike an earlier court challenges, this lawsuit takes on both SB 826 and AB 979.   These bills impose quotas as to the number of female directors (SB 826) and directors from underrepresented communities (AB 979) on the boards of directors of publicly held corporations having their principal executive offices in California. 

This new challenge differs from the others because it takes on both requirements and argues that both quota requirements are contrary to the "internal affairs doctrine".   The plaintiff asserts:

California's race and gender quota laws expressly apply "to the exclusion" of the laws of the state of incorporation.  Cal. Corp. Code §§ 2115.5(a), 2115.6(a).  In other words, these board laws assert that they override other states' laws governing corporations incorporated in their own states.  Therefore, California's "diversity" laws violate the internal affairs doctrine.

As regular readers know, I do not claim expertise to opine on the equal protection issues raised by these statutes, but I do believe that the statutes--as applied to companies incorporated outside of California--are unconstitutional under the internal affairs doctrine.

A New Paper by Yours Truly: Don’t Compound the Caremark Mistake by Extending it to ESG Oversight

Posted to SSRN: Don’t Compound the Caremark Mistake by Extending it to ESG Oversight.

Abstract: 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. 

To promote Board Diversity States are Rampantly Ignoring the Internal Affairs Doctrine

A guest post on Kevin LaCroix's D&O Diary site reports on the status of board diversity legislation at the state level. Money quote:

While California and Washington are currently the only states with mandatory diversity requirements, nearly all of the bills introduced in state legislatures in 2021 have followed that approach – including Connecticut, Hawaii, Massachusetts, Michigan, New Jersey, and Oregon. Illinois and Maryland require only disclosure of boardroom demographics, but do not mandate any level of board diversity. Colorado and Pennsylvania have non-binding diversity requirements, urging companies to act on their own; Ohio has introduced similar legislation.

Some striking points:

• Maryland's mandatory disclosure statute applies to both for-profit and not-for-profit entities. 
• New York's mandatory disclosure bill applies to both public AND privately held companies authorized to do business in the state.
  • If adopted, Ohio's non-binding resolution urging board diversity also applies to both public and privately held corporations that are "doing business" in the state.
• 9 of the 11 statutes apply not just to companies incorporated in the adopting state but also to companies headquartered in the state
  • As noted, New York applies to any corporation--whether incorporated in New York or not--authorized to do business in the state
  • As noted, Ohio's applies to all companies "doing business" in Ohio, whether incorporated there or not.

All 11 have thus tossed the internal affairs doctrine out the window. As regular readers know, I believe that the internal affairs doctrine is both sound public policy and a constitutional requirement. As such, my view is that all of these statutes are constitutionally suspect.

As always, the wisdom and constitutionality of such statutes if limited to companies incorporated in the adopting state is a matter as to which I have no opinion.

Keith Paul Bishop Reports on a "New Challenge Filed To California Board Quota Laws"

Here:

Earlier this month, a Texas non-profit membership association filed a complaint in the United States District Court for the Central District (Western Division) of California, Alliance For Fair Board Recruitment v. Weber, Case No. 2:21-cv-05644-RGK-RAO (July 12, 2021).  Unlike an earlier court challenges, this lawsuit takes on both SB 826 and AB 979. ... 

This new challenge differs from the others because it takes on both requirements and argues that both quota requirements are contrary to the "internal affairs doctrine".   The plaintiff asserts:

California's race and gender quota laws expressly apply "to the exclusion" of the laws of the state of incorporation.  Cal. Corp. Code §§ 2115.5(a), 2115.6(a).  In other words, these board laws assert that they override other states' laws governing corporations incorporated in their own states.  Therefore, California's "diversity" laws violate the internal affairs doctrine.

The plaintiff's complaint also differs in that it claims associational standing since it is brought on behalf of an association.  

As regular readers know, I am agnostic on the equal protection claims against these statutes but am in full agreement with plaintiffs that, as drafted, they are unconstitutional under the internal affairs doctrine because they purport to apply the law of a state other than the state of incorporation to an internal affair of that corporation. See Internal Affairs, the California Board Gender Quota Law, and Chin v. CH2M Hill Companies, Ltd.

Ann Lipton on whether Elon Musk Controls Tesla

Recommended read.

Federalist Society CLE Program on Board Diversity Requirements, Featuring Yours Truly

Register here.

What law applies to veil piercing claims?

Keith Paul Bishop reports:

In an opinion issued last week, U.S. District Court Edward M. Chen ruled that Ohio law applied to an alter ego claim against the members of an Ohio limited liability company.  Greenlight Sys., LLC v. Breckenfelder, 2021 U.S. Dist. LEXIS 120288.   He found support for his ruling in California Corporations Code Section 17708.01 which provides:

(a) The law of the state or other jurisdiction under which a foreign limited liability company is formed governs all of the following:

(1) The organization of the limited liability company, its internal affairs, and the authority of its members and managers.

(2)The liability of a member as member and a manager as manager for the debts, obligations, or other liabilities of the limited liability company.

Bishop goes on to ask why the court ignored "the Court of Appeals' holding in Laborers Clean-Up Contract Admin. Trust Fund v. Uriarte Clean-Up Service, Inc., 736 F.2d 516, 523, (1984): 'In considering whether to disregard the corporate form, we apply federal substantive law, although we may look to state law for guidance.'"

Interesting question.

 

Why do boards get to spend corporate money to fight off proxy contests?

A friend of mine who teaches constitutional law took an interest in more important matters when he read about the recent proxy fight at ExxonMobil. He asks:

Why is it legal for Exxon’s management or the majority of Exxon’s current board to spend shareholder dollars to tell shareholders not to vote for other candidates?

On level, the answer is "because the courts say so." As I explain in my book Corporate Law (Concepts and Insights):

In theory, incumbent directors do not have unbridled access to the corporate treasury. In practice, however, incumbents rarely pay their own expenses. Under state law, the board of directors may use corporate funds to pay for expenses incurred in opposing the insurgent, provided the amounts are reasonable and the contest involves policy questions rather than just a “purely personal power struggle.” [E.g., Rosenfeld v. Fairchild Engine & Airplane Corp., 128 N.E.2d 291 (N.Y.1955), reh’g denied, 130 N.E.2d 610 (N.Y.1955).] Only the most poorly advised of incumbents find it difficult to meet this standard. The board merely needs have its lawyers parse the insurgent’s proxy materials for policy questions on which they differ. Such a search is bound to be successful: if the insurgent agrees with all of management’s policies, why is it trying to oust them?

In contrast, insurgents initially must bear their own costs. Insurgents have no right to reimbursement out of corporate funds. Rather, an insurgent will be reimbursed only if an appropriate resolution is approved by a majority of both the board of directors and the shareholders. [E.g., Steinberg v. Adams, 90 F.Supp. 604 (S.D.N.Y.1950); Grodetsky v. McCrory Corp., 267 N.Y.S.2d 356 (Sup.Ct.1966).] If the incumbents prevail, of course, they are unlikely to look kindly on an insurgent’s request for reimbursement of expenses. In effect, the insurgent must win to have any hope of getting reimbursed.

On a deeper level, the question is why have the courts so held? The Rosenfeld court explained that:

If directors of a corporation may not in good faith incur reasonable and proper expenses in soliciting proxies in these days of giant corporations with vast numbers of stockholders, the corporate business might be seriously interfered with because of stockholder indifference and the difficulty of procuring a quorum, where there is no contest. In the event of a proxy contest, if the directors may not freely answer the challenges of outside groups and in good faith defend their actions with respect to corporate policy for the information of the stockholders, they and the corporation may be at the mercy of persons seeking to wrest control for their own purposes, so long as such persons have ample funds to conduct a proxy contest.

Id. at 293.

The Delaware Chancery Court similarly explains that:

The report of the case of Pell v. London & North Western Ry. Co., [1907] 1 Ch. Div. 5, contains discussions by the three Lord Justices who sat in the case, which very persuasively demonstrate that such expenditures are entirely proper. The underlying reason is given by them as this-that inasmuch as the stockholders are called upon to express their judgment upon the soundness of a questioned policy, it is in the interest of an intelligent decision by them that they should be advised by the responsible managers of the corporation who formulated the policy what were the considerations which induced their approval; and that it would be highly unreasonable to require that the directors should personally defray the expense incident to the performance of a duty which rested upon them to lay before the stockholders the information which is requisite for an informed decision in turn on their part. Where the question in one of a policy to be adopted, the judges in the English case just cited took the view, and very reasonably so, that the corporation was under a duty to advise the stockholders, whose approbation or disapproval was to be determinative, of the reasons for the policy's adoption, and that in such a case the directors are to be regarded as having that corporate duty laid upon them. Any expense incident and reasonably necessary to perform that duty, is an expense incurred in the interest of the corporation and therefore properly chargeable to it.

Hall v. Trans-Lux Daylight Picture Screen Corp., 171 A. 226, 227 (Del. Ch. 1934).

Professor Melvin Eisenberg offered a slightly different explanation:

In considering this problem two economic facts must be viewed in conjunction: (1) Proxy fights involve a lot of money ... and most of the expenses are probably incurred in connection with just those techniques that have the least informational content; (2) While corporate directorships are unquestionably valuable, in themselves they do not normally pay very much money. ... Putting these two facts together, most outside directors and many inside directors ordinarily could not be expected to defend a proxy fight out of their own pockets. Thus a rule which precluded management from using corporate resources for such campaigns might tend to drive corporate offices into the hands of those who are ready and able to pay for such campaigns. Management access to the corporate proxy machinery may therefore be justified, not because the election of directors is a board function — it is not; and not because typically the issues are policy issues and the expenses are incurred for the purpose of informing the shareholders on these issues — they are not; but because in the long run the shareholders and the entire economy might suffer if management had to choose between paying for proxy campaigns out of its own pocket or throwing in the towel.

Melvin Aron Eisenberg, Access to the Corporate Proxy Machinery, 83 Harv. L. Rev. 1489, 1499–500 (1970).

So take your pick:

1. Allowing the board to spend corporate funds allows them to defend the corporation from potential bad actors.
2. It ensures that shareholders are fully informed.
3. It allows persons of modest means to serve as directors.

Ninth Circuit holds shareholder has standing to challenge California board diversity quota law

Bloomberg reports:

An OSI Systems Inc. shareholder has standing to challenge a California law requiring public corporations headquartered in the state to have a minimum number of women on their boards of directors, the Ninth Circuit ruled Monday.

California Senate Bill 826 “requires or encourages” individual shareholders of public companies to vote for female board members, the U.S. Court of Appeals for the Ninth Circuit said. As an individual shareholder of California-based OSI, Creighton Meland has standing to argue that the law requires him to discriminate on the basis of sex in violation of the 14th Amendment, the court said.

The full text of the opinion is here. The summary explains:

Plaintiff alleged that Senate Bill 826 (SB 826) requires shareholders to discriminate on the basis of sex when exercising their corporate voting rights, in violation of the Fourteenth Amendment. The panel held that plaintiff plausibly alleged that SB 826 requires or encourages him to discriminate based on sex. Plaintiff therefore adequately alleged an injury in fact, the only Article III standing element at issue, and thus had Article III standing to challenge SB 826.

The opinion summarizes the relevant legal rule as follows:

... we have long held that “[a] person required by the government to discriminate by ethnicity or sex against others has standing to challenge the validity of the requirement, even though the government does not discriminate against him.” Monterey Mech., 125 F.3d at 707. ...

We have subsequently relied on Monterey Mechanical’s determination that a person required or encouraged to discriminate on the basis of a protected class, “even if the beneficiaries [of the discrimination] are members of groups whose fortunes we would like to advance,” id. at 708, has suffered a direct personal injury sufficient to confer standing.

California objected that the bill affects only corporations; not shareholders. But the 9th Circuit rejected that argument:

Here, corporate shareholders are an object of SB 826. As a general rule, shareholders are responsible for electing directors at their annual meetings. E.g., Cal. Corp. Code §§ 301(a), 600(b). OSI is no exception. Thus, the only way a person can be elected to OSI’s board is if a plurality of shareholders vote in favor of the nominee at an annual shareholder meeting. OSI itself has no authority to elect its own board members. For SB 826 to hasten the achievement of gender parity—or indeed, for SB 826 to have any effect at all—it must therefore compel shareholders to act. Accordingly, the California Legislature necessarily intended for SB 826 to require (or at least encourage) shareholders to vote in a manner that would achieve this goal.

California also argued that shareholders will not be forced to vote for female directors, but the 9th Circuit rejected that argument as well:

A reasonable shareholder deciding how to vote could not assume that other shareholders would vote to elect the requisite number of female board members. Therefore, each shareholder would understand that a failure to vote for a female would contribute to the risk of putting the corporation in violation of state law and exposing it to sanctions. At a minimum, therefore, SB 826 would encourage a reasonable shareholder to vote in a way that would support corporate compliance with legal requirements. Indeed, the California Legislature must have concluded that SB 826 would have such an effect on individual shareholders; otherwise, if each individual shareholder felt free to vote for a male board member, SB 826 could not achieve its goal of reaching gender parity. ...

California’s argument that SB 826 does not require a shareholder to discriminate, because the law does not impose monetary sanctions directly on shareholders, also fails. A law may require or encourage action whether or not it imposes a monetary sanction for noncompliance.

All of this is way outside my wheelhouse, of course. My own view remains limited to the issue of whether the law is constitutional under the internal affairs doctrine. As regular readers will recall, I believe the law is not constitutional thereunder. 

Keith Paul Bishop comments:

Although I agree with the Court of Appeal's conclusion, the opinion begins with an erroneous description of the law, stating that SB 826 "requires all corporations headquartered in California to have a minimum number of females on their boards of directors".  The law applies only to "publicly held domestic or foreign corporations", not all corporations. 

Kevin LaCroix has a very detailed review of the case and issues. He points out that:

The appellate court’s action has implications both for the board gender diversity statute and the more recently adopted board racial diversity statute, which has also been challenged in court. ...

The appellate court’s ruling that Meland has standing means only that the lawsuit now goes back to the district court for further proceedings. The appellate court’s ruling does not mean Meland’s claims are meritorious, or that the statute is unconstitutional. ...

A complete review of the picture surrounding the legal challenges to SB 826 also requires a discussion of the separate state court challenge to the California board gender diversity statute.

Go read the whole thing.

Guest Post: Russell Powell responds to my comments on his new paper Spirit of the Corporation

I am delighted that Russell Powell offered a guest post responding to my recent comments on his paper Spirit of the Corporation. His comments follow:

Thanks to Professor Bainbridge for taking an interest in and recommending my article “Spirit of the Corporation,” which was presented at the recent Berle Symposium (this year focused on religion and corporate law). His question, whether considering spirit as opposed to corporate culture does any significant work, is one that was raised at the symposium, and I acknowledge that the ideas are overlapping. I do not object to readers choosing to consider my formulation of corporate spirit a variation of corporate culture discourse. That said, in this work I am attempting to seriously engage theological traditions in their own contexts (Catholicism and broader Christianity, in particular). In my symposium presentation, I explained that I was attempting to use Rawlsian method regarding public discourse by presenting my private, religiously-based reasons along with parallel, secular reasons. Professor David Skeel appeared to take a similar approach with his very interesting paper “The Corporation as Trinity.”

I am comfortable with the range of definitions for spirit in the paper, but I do not focus on corporate culture explicitly. There is obviously a rich and diverse body of literature on corporate culture from a variety of fields over the past fifty years. Many of those descriptive and normative approaches would be consistent with my characterization of corporate spirit. However, I would argue that there are distinctions, even from a purely secular perspective. Definitionally, I am uncomfortable completely conflating spirit with culture. Is the spirit of the law (its essence or ideal) completely synonymous with legal culture or the culture of law? I think of corporate culture as the granular social facts that shape the tacit values, customs, traditions, and meanings within a particular business organization. In much of the business literature, there is an emphasis on internal mechanisms, policies and incentives, while legal scholars tend to emphasize the role of external rules. Corporate spirit might be considered a broader, inclusive category which focuses on the orientation of the entity toward particular goods, rather than the myriad mechanisms that contribute to that orientation. Although changing internal structures and external incentives can impact corporate culture, I wonder whether religious traditions that emphasize the need for internal transformation may contribute a helpful insight regarding the necessity for internal transformation as an important predicate for institutional reform.

Like Professor Bainbridge, I do not attribute to corporations a soul. From a Christian scriptural perspective, the soul may be distinguished from the spirit (e.g., I Thessalonians 5:23 and Hebrews 4:12). Though undoubtedly an oversimplification, I would argue from a Christian perspective that soul consists of mind, emotions, and will (aspects not easily attributable to institutions), while spirit reflects a person’s orientation toward the divine (or more generally, the good). Scholars of structural sin might identify a “spirit of violence” or a “spirit of joy” within a human institution. However, even in a Christian theological context, this does not mean that separate ethereal entities are created by human-institutional interactions, and that is not my contention. Furthermore, I am not arguing that there is something eternal about the spirit of Nike or McDonalds. Corporations wind up, sell their assets, are purchased or merged in ways that dissolve the entity or radically transform internal culture as well as their essential orientation toward particular goods. Think, for example, of the purchase of Whole Foods by Amazon and the macro and micro changes in management that followed.

My paper is not meant as an endorsement of any specific contemporary approach to corporate decisionmaking or purpose (though I note several); instead, it is primarily a reflection on Berle’s essay “Corporate Capitalism and the City of God,” wrestling with the question whether corporate managers ought to consider the common good along with or as part of their obligation to act in the best interests of the corporation. To that end, I wanted to bring theological perspectives to the discourse, and I am heartened that the piece has generated some fruitful cross-discipline interest and dialogue.