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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).

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.

More on whether Fliegler v. Lawrence was wrongly decided and whether the votes of interested stockholders should count under DGCL 144(a)(2)

About a week ago, I opined that Fliegler v. Lawrence was wrongly decided. 

The court’s reading of § 144 is inconsistent with a plain-meaning approach to statutory construction. Section 144(a)(1) requires approval by “a majority of the disinterested directors,” but § 144(a)(2) requires only approval by a “vote of the shareholders.” The statute’s drafters thus inserted a requirement of disinterest in (a)(1) but not in (a)(2). Presumably, they did not forget the word disinterested in the presumably brief interval between writing (a)(1) and (a)(2). Accordingly, on the face of the statute, shareholder approval ought to be effective even if the shareholders are not disinterested.

Keith Paul Bishop finds support for my argument in an odd place:

Like Section 144(a)(1) of the DGCL, California Corporations Code Section 310(a)(2) requires approval of the board by a vote "sufficient without counting the vote of the interested directors".  Unlike Section 144(a)(2), however, Section 310(a)(1) requires approval of the shareholders with the shares "owned by the interested director or directors not being entitled to vote thereon".    Thus, the California statute illustrates Professor Bainbridge's point - the Delaware legislature could have, but did not, include "disinterested" in Section 144(a)(2).   I agree - haec omissio non praetermitterenda est.

A corporation is not a person in any ontological or metaphysical sense; nor is it a thing capable of being owned. It is a nexus of contracts.

Robert T Miller: 

This short piece responds to an article by Professor McLeod and argues that, even under strong natural law assumptions about the natural rights of human beings to form associations, there is no reason to think that corporations, churches or other associations of individuals are real persons in any ontological or metaphysical sense. Anything we want to say about the rights and obligations of associations under the natural law is fully explainable in terms of the rights and obligations of the individual human beings who compose such associations.

Miller, Robert T., Corporations, Persons and the Natural Law: A Response to Professor McLeod (November 23, 2021). Anchoring Truths (November 23, 2021), Available at SSRN: https://ssrn.com/abstract=3971735 or http://dx.doi.org/10.2139/ssrn.3971735

Should interested shareholders get to vote? A third comment on Hamermesh, Jacobs, and Strine

As regular readers know, I am enjoying parsing the exciting new paper from Lawrence Hamermesh, Jack B. Jacobs, and Leo E.  Strine (hereinafter HJS), Optimizing The World’s Leading Corporate Law: A 20-Year Retrospective and Look Ahead. In a prior post, I discussed their proposals for judicial review of controller transactions. In the course of doing so, I noted that when the conflict of interest transaction is to be cleansed by a shareholder vote, I observed that "I would allow the interested shareholder to vote (but that's a story for another post)." Herewith that other post.

HJS opine that "the cleansing vote must be one of only the disinterested stockholders," citing for that proposition "Fliegler v. Lawrence, 361 A.2d 218, 221-22 (Del. 1976) (failing to accept cleansing effect of a shareholder vote because less than a majority of the votes cast were from disinterested shareholders)."

My objection is that Fliegler was wrongly decided. 

In Fliegler v. Lawrence, the defendants relied on DGCL § 144(a)(2) in arguing that shareholder approval relieved defendants of the common law obligation to prove the transaction’s fairness. DGCL 144(a)(2) provides that a conflicted interest transaction "between a corporation and 1 or more of its directors or officers, or between a corporation and any other corporation, partnership, association, or other organization in which 1 or more of its directors or officers, are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction, or solely because any such director’s or officer’s votes are counted for such purpose, if: ... (2) The material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders ...."

The court agreed that shareholder ratification of a conflicted interest transaction shifted the burden of proof from the defendants to the objecting shareholders. On the facts of this case, however, the burden would not shift. A majority of the shares voted in favor of the transaction had been cast by the interested defendants in their capacities as Agau shareholders. In the court’s view, those votes should not count. Instead, only the votes cast by disinterested shareholders count and only the vote of a majority of such disinterested shareholders has the desired burden-shifting effect.

The court’s reading of § 144 is inconsistent with a plain-meaning approach to statutory construction. Section 144(a)(1) requires approval by “a majority of the disinterested directors,” but § 144(a)(2) requires only approval by a “vote of the shareholders.” The statute’s drafters thus inserted a requirement of disinterest in (a)(1) but not in (a)(2). Presumably, they did not forget the word disinterested in the presumably brief interval between writing (a)(1) and (a)(2). Accordingly, on the face of the statute, shareholder approval ought to be effective even if the shareholders are not disinterested.

Turning to policy, even if Fliegler were correctly decided, it applies only to cases under DGCL 144, which applies only to transactions involving a conflict of interest on the part of a director or officer. 

As to controlling shareholders, even Massachusetts--which has gone the furthest in imposing fiduciary duties on controlling shareholders of close corporations--acknowledges that controllers have "certain rights to what has been termed ‘selfish ownership’ in the corporation." Wilkes v. Springside Nursing Home, Inc., 353 N.E.2d 657, 663 (Mass. 1976).

Perhaps anticipating that principle, it was said in Ringling Bros-Barnum & Bailey Combined Shows v. Ringling, 53 A.2d 441, 447 (Del.1947) that:

Generally speaking, a shareholder may exercise wide liberality of judgment in the matter of voting, and it is not objectionable that his motives may be for personal profit, or determined by whims or caprices, so long as he violates no duty to his fellow shareholders.... 

My friend and mentor, the great corporate law scholar Michael Dooley, cited that case for the proposition that "shareholder autonomy [is] an independently important value in corporate law." Michael P. Dooley, Two Models of Corporate Governance, 47 Bus. Law. 461, 495 (1992).

Reforming the Delaware case law on controlling shareholders by resurrecting Sinclair Oil: A second comment on Hamermesh, Jacobs, and Strine

A few days ago I mentioned an exciting new paper from Lawrence Hamermesh, Jack B. Jacobs, and Leo E.  Strine (hereinafter HJS), Optimizing The World’s Leading Corporate Law: A 20-Year Retrospective and Look Ahead. They offer seven proposed reforms of Delaware case law, two of which apply to controlling shareholders:

Extending the inherent coercion theory expressed in Kahn v. Lynch beyond freezeout mergers to all controller transactions, thereby (i) making the procedural requirements specified in MFW applicable to decisions for which they were not designed and do not rationally pertain, and (ii) inappropriately expanding the range of full discovery and judicial review for fairness. We advocate abandoning Lynch‘s inherent coercion rationale and limiting the reach of MFW to transactions in which a controlling stockholder seeks to acquire the minority's shares, or a statute requires the approval of both the board and the stockholders.

What's interesting about their proposal is that they don't quite have the courage of their convictions. They point out, for example, "that (i) independent directors and stockholders can exercise real leverage and make informed choices when faced with a conflict transaction involving a controller, and (ii) Delaware law is vibrant enough to protect minority stockholders from retribution by a controller that did not get its way." 

Later in the article they expand on those points:

[When Jacobs and Strine's earlier article] was published, independent directors had already shown themselves capable of standing up to corporate managers, and CEO tenure had been declining as a result. Independent directors increasingly owed their continued access to directorships not to ties to management, but to their willingness to support policies that powerful institutional investors liked. These same institutional investors had shown themselves willing to criticize companies — including those with controlling stockholders — and to dissent at the ballot box. Moreover, Delaware courts had proven vigilant in policing electoral manipulation and coercion of stockholders in the voting process, and would readily address any controller who reacted to a negative vote with retribution. Likewise, even controllers had to be sensitive to the prospect that replacing independent directors who said no to a conflict transaction with ones who would do their bidding would impair their ability to raise debt and other capital. ...

Market activity since then has only strengthened that argument. Institutional investors have a powerful voice, no fear of controlling stockholders or corporate management. Stockholders challenge them &equently, and they have hedge funds and the media to help them. Independent directors are under great scrutiny too, and are expected to act aggressively in M&A situations to make sure that the public investors get a good deal. Proxy advisors and analysts scrutinize deals and help institutional investors decide how to vote.

The logic of their argument is that judicial review of a controlling shareholder transaction should not automatically be subject to entire fairness review. Yet, as we have seen, HJS would retain fairness review in cases in which "a controlling stockholder seeks to acquire the minority's shares, or a statute requires the approval of both the board and the stockholders." Why not go all the way?

Which brings us to the question of when entire fairness should be the standard. As HJS explain, there has been a trend towards expanding the scope of entire fairness to include cases beyond freeze-outs and other events in which the statute requires the approval of both the board and the stockholders. They criticize that trend:

[Delaware law is I]nsufficiently distinguishing between transactions involving classic self-dealing and transactions in which a fiduciary (whether a director or controlling stockholder) receives an additional benefit only because of being differently situated, thereby extending entire fairness review to a context where it does not fit. We advocate restoring that distinction, at the injunctive stage, by applying Unocal and Revlon intermediate judicial review to transactions where a fiduciary merely receives (but does not force) a benefit, such as a post-merger compensation package, not received by other stockholders. In a post-closing damages case, the review standard should require the plaintiff to prove a breach of the duty of loyalty and resulting damages.

Hence, they "acknowledge the many cases stating that any conflicted self-dealing transaction with a controlling stockholder is subject initially to the entire fairness standard." In light of the reality of independent director and institutional investor developments they discussed in the excerpts above, however, they deplore that trend.

Extending Lynch's inherent coercion doctrine after MFW had effectively rejected it, thereby dooming to failure any motion to dismiss unless the controller employs the costly MFW procedures, will not generate systemic value for diversified stockholders. Instead, it is more likely to result in excessive transaction costs, increased D&O insurance costs, and contrived settlements designed only to avoid the costs of discovery and justify the attorneys' fee that motivates most corporate representative suits.

They are particularly critical of cases in which Delaware courts have been "expanding the use of non-ratable benefits as a basis for expanding the scope of the definition of self-dealing transactions."

If the goal is to limit the situations in which a transaction involving a controlling shareholder is subject to entire fairness review, which seems the right goal for the reasons they so eloquently explain, it is curious to me that they ignore a tool lying close at hand; namely, the Delaware Supreme Court's decision in Sinclair Oil Corp. v. Levien, 280 A.2d 717, 720 (Del. 1971), which they cite but once and in a string cite for the proposition that "the fact that a controlled company makes a decision benefiting its parent should not invoke the entire fairness standard absent harm to the corporation or the minority stockholders."

In my view, Sinclair Oil should be foundational case for analysis of controlling shareholder cases. I discuss it at length in my book Corporate Law (Concepts and Insights):

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. In this case, as in most, it mattered quite a lot which standard applied. As is often the case, the party bearing the burden of proof on a given dispute lost.

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 fiduciary obligations owed by a parent corporation are limited to self-dealing. 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. (Page 210)

So here's how I think controlling shareholder transactions should be reviewed: Does the corporation have a controlling shareholder? If yes, does the transaction, contract, or other event result in the controller getting a benefit “to the exclusion and at the expense of the" minority? This question is essential because it ensures that courts will only get involved where there is a real conflict in the sense of a detriment to the minority, not just a benefit to the controller.

If there is no benefit to the controller at the expense of and to the exclusion of the minority, the business judgment rule should apply. This should be a full stop with no further judicial review, as I agree with HJS that the "vestigial waste" standard should be retired.

If there is such a benefit, however, then entire fairness should be the standard of review with the burden of proof on the defendant. If the transaction was approved either by a majority of the disinterested directors or a majority of the shareholders, then the burden of proof should be on the plaintiff to show that the transaction was not fair to the corporation. If the transaction complies with the full set of MFW conditions, then again the business judgment rule should be invoked to preclude any further judicial review.

Notice that my proposal goes one step beyond HJS in that I would apply the above formula to all transactions involving a controlling shareholder, including going private transactions and ones in which the board and shareholders must vote. Notice also that I would allow the interested shareholder to vote (but that's a story for another post).

My proposal has two hard stops: If there was no non-ratable benefit gained by the controller, the BJR applies and--unlike current law--judicial review is precluded. The vestigial waste theory dies. There is precedent for this. Under the MBCA, where conflict of interest transactions are properly approved by the board or shareholders, there is no further judicial review. Likewise, if there was a non-ratable benefit, the controller can still get a hard stop--i.e., application of an irrefutable BJR--if it complies with both MFW conditions. In addition, I could be persuaded that complying with either disinterested director or shareholder approval should invoke the BJR.

Having hard stops available is critical; because the problem with a burden shift approach Ii.e., Lynch and MFW insofar as the latter retains the vestigial waste review), is that it does not reduce rent-seeking in a game where the plaintiffs are not real parties in interest, and the game is about attorneys’ fees. If there is no dismissal option, there will be excessive litigation costs.

In any case, I go on in Corporate Law (Concepts and Insights) to explain that you can understand many controlling shareholder doctrines through the Sinclair Oil lens. I argue for example, that sale of control cases like Perlman v. Feldmann can be understood as an application of Sinclair Oil:

Perlman does not stand for the proposition that a controlling shareholder must give all other shareholders an equal opportunity to sell their stock on a pro rata basis. Instead, it simply stands for the proposition that a controlling shareholder may not usurp an opportunity that should be available to all shareholders. One could have reached the very same result under a Sinclair Oil-style analysis. The controlling shareholder received a benefit “to the exclusion and at the expense” of the minority. Not only were the minority excluded from the opportunity to sell at a premium, they were left worse off as a result.

Beyond Perlman’s unique facts, where are corporate opportunity issues most likely to arise? Probably in connection with structuring of acquisitions. Suppose Lorraine Looter approaches Susan Stockholder with an offer to buy Stockholder’s control block at a premium. Should there be liability? Not if we adopt the Sinclair Oil analogy. The majority shareholder can do whatever she wants as long as she does not deprive the minority shareholders of something to which they are entitled. On these facts, there is no corporate opportunity to be usurped. (Pages 218-19)

Later in the book I explain how you could use Sinclair Oil to explain cases involving refusal by a controlling shareholder to allow payment of a dividend.

Extending Caremark to Climate Change Risk Management and Other ESG Issues Would Simply Compound the Original Mistake

Alex Cooper, Cynthia Williams, Ellie Mulholland, Robert Eccles, and Sarah Barker argue that directors of Delaware corporations face Caremark liability for climate change risk management failures.

As discussed in detail in a new paper published in October 2021 by the Commonwealth Climate and Law Initiative (CCLI), climate change has therefore evolved from an “ethical, environmental” issue to one that presents foreseeable financial and systemic risks (and opportunities) over mainstream investment horizons. This evolution has substantially changed the relevance of climate change to the governance of corporations, which has implications for the fiduciary duties of directors and officers under Delaware law. ...

Climate change is likely to significantly increase the risks facing a corporation’s operations, and through government’s efforts to halt climate change and protect economies and communities from its impacts, increase its regulatory obligations. Therefore, in the context of climate-related risks, oversight liability may arise where directors and officers:

• • fail to consider or oversee the implementation of climate-related legal risk controls;
  • fail to monitor mission-critical regulatory compliance, either specific climate change-related regulations or existing regulations which require consideration or disclosure of climate change risks. This latter category is likely to include a broad range of regulations, but may include: securities laws, which require listed companies to disclose material risks; environmental laws, as the physical effects of climate change catalyze infrastructure failure; and health and safety laws for companies with employees are exposed to increasingly hostile conditions; or
  • fail to monitor climate-related mission-critical operational and business risks.

It's not entirely clear whether they think that's a good thing or not. But their descriptive analysis is spot on. The precautions they urge boards to take seem advisable. Those precautions might even help save the planet, which would be a good thing.

In sum, I agree that there is a risk here. But insofar as the ought questions are concerned, I think courts should not allow that risk to materialize. I elaborate in my paper Don’t Compound the Caremark Mistake by Extending it to ESG Oversight (September 2021), which is forthcoming in The Business Lawyer. In it, 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.

As I explained in a summary version of article at CLS Blue Sky Blog, such an extension would be highly undesirable. First, Caremark was wrong from the outset. Caremark’s unique procedural posture, which precluded any appeal, gave Chancellor Allen an opportunity to write “an opinion filled almost entirely with dicta” that “drastically expanded directors’ oversight liability.” In doing so, Allen misinterpreted binding Delaware Supreme Court precedent and ignored the important policy justifications underlying that precedent.

Second, Caremark was further mangled by subsequent decisions. The underlying fiduciary duty was changed from care to loyalty, with multiple adverse effects. In recent years, moreover, there has been a steady expansion of Caremark liability. Even though the risk of actual liability probably remains low, there is substantial risk that changing perceptions of that risk induces directors to take excessive precautions.

Finally, applying Caremark to ESG issues will undermine Delaware’s clear law of corporate purpose by extending director oversight duties to areas of social responsibility unrelated to corporate profit. Caremark can be justified as ensuring that a corporation complies with applicable laws, but ESG compliance remains voluntary. Advocates of extending Caremark to encompass ESG compliance thus likely hope doing so will push companies to adopt what they regard as socially responsible policies but which they have not been able to mandate through the political process.] Asking corporate executives to take on governmental functions not only asks them to undertake tasks for which they are untrained and for which their enterprise is unsuited, it also subverts the basis of a liberal democracy. Government efforts to solve social problems are inherently limited by the checks and balances baked into the American political system. Mandated board attention to ESG risks would erode those checks and balances by asking unelected executives to undertake solving social ills.

Taken together, these negatives—the errors embedded in the original Caremark decision, the recharacterization of the oversight obligation as a duty of loyalty, and its potential extension to aspirational rather than binding obligations—add up to a whole that is much worse than the individual elements. There has long been a risk that expansive readings of Caremark will “undermine the long established protections of the business judgment rule.”

Expanding Caremark to ESG issues would continue the process of undermining those protections and, more generally, threaten the board-centric model of corporate governance that lies at the heart of Delaware’s dominance of the market for corporate charters. In practice, extending Caremark to ESG considerations would subordinate the board’s view of how much it should measure and manage to the views of external standard setters or consultants. The likely result would be a regime in which following “best practices” as defined by expert bodies would be the only sure-fire protection against duty of loyalty suits.

Note to adopters of Bainbridge's Business Associations Cases and Materials

The book's website has an update memo with UFCW v. Zuckerberg and notes, which updates the Delaware law of demand excusal.

Hamermesh, Jacobs, and Strine on "Optimizing The World’s Leading Corporate Law": Part 1 Controlling Shareholders--Plus Lipton

There is an exciting new paper from Lawrence Hamermesh, Jack B. Jacobs, and Leo E. Strine (hereinafter HJS), Optimizing The World’s Leading Corporate Law: A 20-Year Retrospective and Look Ahead. Here we have two prominent and respected ex-members of the Delaware Chancery and Supreme Courts plus a highly respected academic expert on Delaware corporate law evaluating the state of Delaware corporate law.

Here's the abstract:

In a 2001 article (Function Over Form: A Reassessment of Standards of Review in Delaware Corporation Law) two of us, with important input from the other, argued that in addressing issues like hostile takeovers, assertive institutional investors, leveraged buyouts, and contested ballot questions, the Delaware courts had done exemplary work but on occasion crafted standards of review that unduly encouraged litigation and did not appropriately credit intra-corporate procedures designed to ensure fairness. Function Over Form suggested ways to make those standards more predictable, encourage procedures that better protected stockholders, and discourage meritless litigation, by restoring business judgment rule protection for transactions approved by independent directors, the disinterested stockholders, or both.

This article examines how Delaware law responded to the prior article’s recommendations, concluding that the Delaware judiciary has addressed most of them constructively, thereby creating incentives to use procedures that promote the fair treatment of stockholders and discourage meritless litigation. The continued excellence and diligence of the Delaware judiciary is one of Delaware corporate law’s core strengths.

But some recent cases have articulated standards of review that involve greater than optimal litigation intensity and less than ideal respect for decision-making in which independent directors and disinterested stockholders have potent say. Those standards also impair the integrity of Delaware’s approach to demand excusal in derivative cases and the identification of controlling stockholders. We also propose eliminating concepts like substantive coercion that do not provide a legitimate basis for resolving cases. Finally, we urge action to correct new problems such as the unfair targeting of corporate officers for negligence claims in representative actions and the frustrating state of practice under Delaware’s books and records statute.

There is so much in this article to discuss that I expect to get a number of blog posts out of it. Today, I'm starting with their discussion of controlling shareholders because there is also an important new article out from my Twitter friend Ann Lipton, The Three Faces of Control. Herewith her abstract:

Controlling shareholders are subject to distinct legal obligations under Delaware law, and thus Delaware courts are routinely called upon to distinguish “controlling shareholders” from other corporate actors. That is an easy enough task when a person or entity has more than 50% of the corporate vote, but when a putative controller has less than 50% of the vote – and is nonetheless alleged to exercise control over corporate operations via other means – the law is shot through with inconsistency.

What is needed is a contextual approach that recognizes that the meaning of control may vary depending on the purpose of the inquiry. Under Delaware doctrine, the controlling shareholder label subjects that entity to unique legal treatment along three distinct dimensions. First, controlling shareholders – unlike minority shareholders – have fiduciary duties to the corporation. Second, interested transactions with controlling shareholders – unlike interested transactions with other fiduciaries – are subject to a unique cleansing regime in order to win business judgment deference from reviewing courts. Third, when certain transactions involving sales of control are challenged in court, they may be treated as direct rather than derivative actions, even when similar transactions that do not involve control sales would be treated as purely derivative.

By teasing out these three aspects of the legal framework and analyzing them separately, courts can more closely attend to the reasons why control carries special significance, and ultimately develop a more rational and consistent set of definitions. Most critically, courts may properly designate someone a controlling shareholder for some purposes, but not others.

Herewith HJS' summary of their argument with the controlling person standard:

[They object to the way courts have enlarged] the definition of “controlling stockholders” to include persons having little or no share voting power, and to lump together unaffiliated stockholders into a “control bloc,” so that a different standard of review applies, thereby expanding the range of full discovery and judicial review for fairness. To address this concern, we propose limiting the concept of “controlling stockholder” to the situation where a stockholder’s voting power gives it at least negative power over the company’s future, in the sense of acting as a practical impediment to any change of control.

HJS note that "Under Delaware law, it was historically difficult to establish that a stockholder having less than majority ownership was a controlling stockholder." (35) Yet, as Lipton points out, the definition has evolved to include "so many factors and considerations that it allows for a great variety of actors to be designated as controllers." (3) HJS would agree, attributing that development to "the revival of Lynch’s inherent coercion theory has created pressure to expand the definition of controlling stockholder to reach persons having far less than a voting majority, but are either critically important to the company or associated with other stockholders as a group." (36)

There are some key differences in their analyses. Lipton is much more open to the idea that contract rights can make one a corporate controller, at least for purposes of deciding whether they owe fiduciary duties to the entity and the fellow shareholders: 

... if control over another’s assets is the hallmark of a fiduciary – and if it is the controlling shareholder’s dominion over corporate assets that gives rise to fiduciary duties on its part – then it follows that no particular level of stock ownership should be necessary before one can be deemed a controller. Indeed, there is no reason that stock ownership, specifically, should be required at all. This is particularly so because in a world where control rights are often allocated not through equity interests directly, but through shareholder agreements, the distinction between control emanating from stock holdings and control emanating from contractual rights is difficult to parse. (7)

In contrast, HJS argue that:

Another troublesome issue arises where a court accepts the claim (at least for purposes of a motion to dismiss) that a person is a controller, with concomitant fiduciary obligations, despite owning no shares of stock at all. ... Our concern, however, is that the amorphous concept of “soft power” not arising out of stock ownership could be applied to trigger the entire fairness standard and preclude dismissal, where the premise of control involves circumstances that reflect garden variety commercial dealings, such as “the exercise of contractual rights to channel the corporation into a particular outcome by blocking or restricting other paths, ... the existence of commercial relationships that provide the defendant with leverage over the corporation, such as status as a key customer or supplier, [or] [l]ending relationships, [which] can be particularly potent sources of influence.”The courts should heed doctrinal guardrails against overuse of this “soft power” concept: “authority [that] takes the form of a contractual right ... must give the nonstockholder power akin to ‘operating the decision-making machinery of the corporation’ (a ‘classic fiduciary’), rather than ‘an individual who owns a contractual right, and who exploits that right,’ forcing a corporation to 'react' (which does not support a fiduciary status).” (39-40)

It will often be the case that creditors, for example, have contractual rights that, if exercised, sharply limit corporate decision-making freedom but I don't think that should result in them being treated as a controller for any purpose. I'm thinking here of classic Business Association cases like A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285 (Minn. 1981), or Martin v. Peyton, 158 N.E. 77 (N.Y. 1927). Both involved situations in which contract creditors had certain contractual rights that allegedly resulted in the defendants having sufficient control rights to be deemed a principal of an agent in the former case and a partner in the latter. I think Coppola v. Bear Stearns & Co., Inc., 499 F.3d 144, 150 (2d Cir. 2007),got it right when the court explained that "the dispositive question is whether a creditor is exercising control over the debtor beyond that necessary to recoup some or all of what is owed, and is operating the debtor as the de facto owner of an ongoing business."

There seems to be a consensus, however, that where there is no majority shareholder courts should focus on whether the alleged controller's "degree of entrenchment and ... ability to retaliate against disobedient shareholders" (Lipton at 16) and "the potential to use affirmative voting power to unseat directors and implement transactions that the minority stockholders do not like, and use blocking voting power to impede other transactions." (HJS at 37)

I would love to see HJS and Lipton sit down to hash all this out.

In any case, both of these articles are well worth reading.

 

New and Continuing Challenges to California's Board Diversity Quota Laws

Keith Paul Bishop has the details:

Tomorrow, a trial is scheduled to begin in California Superior Court on the constitutionality of SB 826, California's female director quota law.  Crest v. Padilla (Cal. Super. Ct. Case No. 19STCV27561).   ...

In addition, there is a separate challenge to the law pending in the U.S. District Court for the Eastern District of California.  Meland v. Padilla (Case No. No. 2:19-cv-02288-JAM-AC). ...

Last week, the National Center for Public Policy Research filed a complaint in U.S. District Court challenging both SB 826 and AB 979.  The complaint has a single claim for relief based on the Fourteenth Amendment of the U.S. Constitution and 42 U.S.C. § 1983. 

I'll remind readers that I have taken the position that these laws are unconstitutional under the internal affairs doctrine, which is a penumbra formed by the emanations of the dormant Commerce Clause and the Full Faith and Credit Clause.

Look what came in today's mail: The 11th edition of my Business Associations casebook

Longtime users will notice a major change to the cover of this edition. My friends and coauthors Bill Klein and Mark Ramseyer have decided to retire from working on our books. It has been an honor and privilege to work with them these many years. Going forward, I will be solely responsible for editing the books.

I do not plan any significant changes to the editorial style. In editing this book, I will continue to follow the six basic but apparently widely ignored principles that have informed the book since Bill’s first edition. Each principle is one that I think helps produce a book that teaches students the gist of the law they need to know; that trains them to apply it; and that (perish the thought) almost makes them enjoy the process.

Outside Reverse Veil Piercing in California

Keith Bishop reports:

Reverse veil piercing involves subjecting an entity to the liabilities of its owner.  See Inside and Outside Veil Piercing.   As Professor Bainbridge has noted, there are two types of reverse veil piercing:

One type might be called insider reverse veil piercing, in which a shareholder seeks to disregard the corporate entity.

The other is so-called outsider reverse piercing, in which a personal creditor of the shareholder seeks to disregard the corporation’s separate legal existence to reach assets of the corporation to satisfy its claim.

In a decision issued yesterday, the California Court of Appeal considered the second type of reverse veil piercing - outside reverse veil piercing.  Blizzard Energy, Inc. v. Bernd Schaefers,  2021 Cal. App LEXIS 968.  The plaintiff had obtained a judgment for nearly $4 million against an individual in Kansas.  When the plaintiff had the Kansas judgment entered in California, it asked the court to add two limited liability companies to the judgment based on the reverse alter ego doctrine.   The defendant's spouse, who had filed for a divorce, has a 50% interest in these LLCs.  She was not a defendant in the Kansas action.  The court added the LLCs as judgment debtors and the defendant appealed.

To learn how the case came out, go here.

Hearing on California's Board of Director Gender Quota Statute

Report from Cydney Posner of Cooley on the federal district court hearing on plaintiff's request for a preliminary injunction against enforcement of SB 826, which "requires that public companies (defined as corporations listed on major U.S. stock exchanges) that have principal executive offices located in California, no matter where they are incorporated, include specified minimum numbers of women on their boards of directors." 

It sound like the plaintiff's going to lose on that request and probably on the merits, as the judge reportedly stated that:

I think that the plaintiff hasn’t demonstrated enough of a likelihood of success on the merits on his claim that this law is unconstitutional to warrant a preliminary injunction, to stop the law now. It goes to my question obviously loaded and somewhat biased about the balance of equities in the public interest of stopping this law now, particularly when it appears to be working so well and is accomplishing the primary goal of remedying discrimination.

“So in terms of a likelihood of success on the merits, I am leaning towards finding that the defendants are more likely to succeed on the merits, and that the law should be upheld.

As regular readers know, I believe SB 826 is unconstitutional under the penumbra created by the full faith and credit and dormant commerce clauses, which constitutionalize the internal affairs doctrine. That issue is not being litigated in this case, however.

It turns out California is another state that doesn't require use of GAAP in deciding if a dividend is lawful

Keith Bishop:

UCLA Law School Professor Stephen Bainbridge recently commented Vice Chancellor Glasscock's recent memorandum opinion in In re The Chemours Co. Deriv. Litig., (Del. Ch. Case No. 2020-0786-SG, Nov. 1, 2021).  Professor Bainbridge notes that the Chemours case provides some guidance on how to boards of directors should make valuation decisions in determining whether a dividend may be paid under Delaware law.  He notes that state corporate laws generally does not require adherence to Generally Accepted Accounting Principles (GAAP) when determining whether a dividend can be paid.  I can't speak to other states' laws, but Professor Bainbridge is correct with respect to California.

Keith goes on to discuss the pertinent California statute in depth. Good read.

Using Non-GAAP Accounting to Determine the Legality of a Dividend

From The CorporateCounsel.Net:

The question of the legality of a dividend or repurchase under Delaware law is one that often arises in leveraged recaps and other transactions involving large distributions to shareholders. The answer usually depends on whether the company has sufficient “surplus” within the meaning of Section 154 of the DGCL. The Delaware Supreme Court has held that what matters in the surplus calculation is the present value of the company’s assets & liabilities, not what’s reflected on the balance sheet. Since that’s the case, valuations are often used to determine the amount of available surplus.

While that’s a pretty common practice, there’s not a lot of Delaware case law on how the board’s valuation decisions will be assessed. That’s kind of disconcerting, particularly since directors face the prospect of personal liability for unlawful dividends or stock repurchases. Fortunately, the Chancery Court’s recent decision in In re The Chemours Company Derivative Litigation, (Del. Ch.; 11/21), provides some guidance to boards engaging in this process. Here’s an excerpt from this Faegre Drinker memo on the decision:

In this case, the board approved both dividends and stock repurchases at a time when the company also faced legacy contingent environmental liabilities that conceivably could render Chemours insolvent.

The court deferred to the board’s determination that there was sufficient surplus to permit these transactions, even though the board looked beyond GAAP-metrics to evaluate its contingent liabilities. The court held that it “will defer to the Board’s surplus calculation ‘so long as [the directors] evaluate assets and liabilities in good faith, on the basis of acceptable data, by methods that they reasonably believe reflect present values, and arrive at a determination of the surplus that is not so far off the mark as to constitute actual or constructive fraud.” This standard is consistent with the court’s prior guidance that the DGCL “does not require any particular method of calculating surplus, but simply prescribes factors,” total assets and total liabilities, “that any such calculation must include.”

As for reliance on experts, the court held that, under the DGCL, utilization of and good faith reliance on experts “fully protects” directors from personal liability arising from their surplus calculation. In reaching this conclusion, the court rejected the argument that the directors were required to second-guess the GAAP-based reserves calculated by the experts — an analysis that permitted the board to significantly reduce the size of these liabilities on Chemours’ balance sheet.

This should not be a surprising result. As I explain in my book Corporate Law:

Consider a relatively simple balance sheet:

	Assets			Liabilities and Shareholder equity
	Land	$  9,000		Total liabilities:	$38,000
	Other	$24,000		Capital:	$15,000
	Total	$33,000		Surplus	($20,000)
			Total shareholder equity		($  5,000)

This corporation could not pay a dividend under either the MBCA or Delaware approach. Under the MBCA, total liabilities already exceed total assets, so a distribution could not be made. Under Delaware law, the corporation has no surplus and, assuming it could not pay a nimble dividend, thus could not pay a dividend.

Notice, however, that the corporation owns real property being carried on the balance sheet at $9,000. Because assets generally are carried on the books at their historical cost, and land tends to appreciate in value, it is a fair supposition that the land may be worth much more than $9,000. Suppose the fair market value of the land in fact is $30,000. If we “write up” the value of the land to $30,000, the corporation will have total assets of $54,000, and now may pay a dividend. Under the MBCA, total assets exceed total liabilities by $16,000, which is available for distribution. Under Delaware law, net assets are now $16,000, which results in a surplus of $1,000, which is available for payment of a dividend.

Generally accepted accounting principles (GAAP) require that most assets be carried on the books at historical cost less depreciation. Accordingly, you may not write up assets to reflect an increase in their fair market value, but must write them down to reflect depreciation. In contrast, state corporate law generally does not require adherence to GAAP in determining whether a dividend lawfully may be paid. Indeed, MBCA § 6.40(d) expressly authorizes a corporation to use “a fair valuation or other method that is reasonable under the circumstances” in determining the amount of total assets and total liabilities. Accordingly, while the corporation may rely on financial statements prepared in accordance with GAAP, there is no requirement that it do so. The drafters’ comments on § 6.40, moreover, go on to state that the statute authorizes departures from historical cost accounting in determining the funds available for distribution. The comments further indicate that a corporation generally may not selectively revalue assets, however. If it is going to revalue some assets, all must be reappraised and adjusted to their fair market value. Delaware and New York reach the same result through case law.[1]

The principal wrinkle in the Chemours case is that, instead of suing directors for departing from GAAP, the plaintiffs here are suing the directors for "relying on GAAP-based accounting reserves to calculate surplus, which the Plaintiffs argue exclude contingent environmental liabilities."