Archive for the ‘Director Liability’ Category

D&O Liability: A Downside of Being a Corporate Director

June 4th, 2015 | By

One of the few downsides to board service is the exposure to liability that directors of all corporations potentially face, day in and day out, as they perform their fiduciary duties. The chance of being sued for a major merger decision is now 90 percent; but that well known statistic is just the tip of an even larger iceberg. The Court of Chancery for the state of Delaware, where some one million corporations are incorporated (among them most major public companies), hears more than 200 cases per year, most of them involving director and officer liability. And given the high esteem in which Delaware courts are held, these influential D&O liability decisions impact the entire nation.

This ongoing story, covered in the May-June issue of NACD Directorship, recently prompted NACD to take action. Represented by the law firm Gibson Dunn & Crutcher LLP, NACD filed an amicus curiae (“friend-of-the-court”) brief in the matter of In re Rural/Metro, a complex case likely to continue throughout the summer. Essentially, the Court of Chancery ruled against directors and their advisors, questioning their conduct in the sale of Rural/Metro to a private equity firm.

Why did we get involved? Since its founding in 1977, NACD has striven to serve members in many ways.  Through research reports, webinars, and live events, we provide directors with the information, insights, and networks they need to become effective board leaders. Yet there is another important way in which NACD has been helping directors over the years. From time to time, when directors express concerns about pending policy matters, we amplify those concerns to the powers that be—including all three branches of the federal government as well as state courts, particularly Delaware’s. In this way, we can be the “voice of the director.”

In our Rural/Metro brief, we spoke on behalf of the directors in this case (who, because they had settled out of court, could not directly represent themselves);  far more importantly, however, we spoke on behalf of all directors in every state, addressing the legal principle at issue. We urged the Delaware Supreme Court to reverse Chancery’s finding that Rural/Metro’s directors had breached their fiduciary duties when they approved the company’s sale. NACD believes the Court of Chancery’s decision may expose directors of Delaware corporations to an unreasonable risk of litigation and personal liability for good-faith decisions made on the basis of their reasonable business judgments and in consultation with expert advisors.

Will our line of reasoning in the Rural/Metro amicus brief prevail? Whatever the outcome, NACD’s messages is likely to keep Delaware’s courts focused on standards of good faith rather than an ideal but unreachable goal.

In this regard, we can take heart from precedent. The Rural/Metro  friend-of-the-court brief was the second one NACD has filed in recent years. The previous amicus brief, written in 2008 and presented by the law firm of Sidley Austin LLP, addressed the issue of indemnification in the matter of Bohnen v. Troy Corp. 962 A.2d 916 (Del. 2008). NACD asserted that the indemnification protection of former directors should continue past their years of service in legal matters that involved those same years.

Initially, the court could not consider our brief for technical reasons. However, NACD’s  position was ratified in 2009 when, in response to concerns expressed by various parties including NACD, the Delaware legislature amended Section 145(f) of the Delaware General Corporate Law. As revised, Section 145(f) provides that a director’s right to receive indemnification or advancement pursuant to a company’s charter or bylaws generally “shall not be eliminated or impaired  … after the occurrence of the act or omission that is the subject of the … indemnification or advancement.”

Even now the issue of indemnification remains current. Late last month, in the case of Blankenship v. Alpha Appalachia Holdings Inc., C.A. No. 10610-CB (Del. Ch. May 28, 2015), the Delaware Court of Chancery upheld and clarified  the rights of former directors and officers to receive advance defense costs when they are named in litigation connected to their past board service. As stated in a recent article from Gibson Dunn, “This decision reaffirms the strong protection of director and officer indemnification and advancement rights under Delaware law.” The decision in this case cites Section 145 of the Delaware Code more than a dozen times, which demonstrates that NACD is truly making a difference for directors and the companies they serve.

Proxy Season Paradoxes

June 19th, 2014 | By

As corporate fiduciaries, directors represent shareholders. But what should boards do when their sense of corporate good conflicts with resolutions advanced by specific owners? It is easy to say that boards need to do more to oversee risk, or to improve strategy, but without real-world testing, these statements become platitudes. Let’s take a look behind the headlines surrounding six recent proxy season conflicts—starting with five Fortune 500 companies (Bank of America, Darden, Staples, Target, and Walmart) and closing with a mid-market real estate investment trust (REIT) family (Ashford). In each case, boards have had to draw the line when confronted by special interests—while still respecting the rights and interests of all shareholders, including activists.

Please click on a company name above to go directly to the case study.

Bank of America: Of Accounts and Accountability

The issue. Is the board responsible for preventing honest administrative errors? On April 28, the Federal Reserve Board announced that it would require Bank of America Corp. to suspend planned increases in capital distributions and resubmit its capital plan. This requirement followed disclosure by Bank of America that the bank made an error in the data used to calculate regulatory capital ratios used in the most recent stress tests conducted by the Federal Reserve. The error was unintentional and, in comparison to the $2 trillion on the balance sheet, small. Nonetheless, the consequences became clear at the annual meeting on May 7, when the California State Teachers’ Retirement System (CalSTRS) pension fund voted against four of five members of Bank of America’s audit committee. “The shortcomings in processes and risk controls underscore the need to make the necessary changes to ensure this sort of issue does not arise again,” opined CalSTRS spokesman Ricardo Duran in an e-mailed statement to the Wall Street Journal. Yet only a minority of investors joined the California giant. Apparently, most investors shared the views of William Smead, chief investment officer of  Smead Capital Management in Seattle, who told the Wall Street Journal that the bank’s CEO Brian Moynihan “is a straight shooter” so his fund would “stay the course.” At the meeting, shareholders elected the full board for another term, approved all the management proposals, and rejected all four shareholder proposals; still, the CalSTRS campaign and commentary fired warning shots heard around the governance world.

The lesson. Boards cannot prevent error, but they can ensure quality of both processes and people. Clearly, this bank (like every institution) can continue to improve its controls. On the other hand, when management is willing to admit mistakes and act quickly, and the board has supported this progressive direction, it’s hardly time to change leadership.

Darden Restaurants (and Pfizer): The Right to Sell (or Buy)

The issue. Should cut-or-keep strategy be decided by boards and management or by shareholders? On May 16, Darden Restaurants Inc. announced a definitive agreement to sell its Red Lobster chain restaurant business and related assets, and assumed liabilities to Golden Gate Capital for $2.1 billion in cash. Red Lobster was failing and the board opted to sell it rather than turn it around. The deal will net Darden about $1.6 billion, of which approximately $1 billion will be used to retire outstanding debt. The deal is expected to close in early 2015 after necessary regulatory approvals. A week later, on May 22, Starboard Value, protesting the sale, put forward a full slate of candidates for Darden’s board of directors to be voted on at the company’s June 22 annual meeting. (Similar questions arose on the buy side at the Pfizer annual meeting on April 24 during the recently ended Pfizer bid for Astra-Zeneca.)

The lesson. Boards have a right to exercise judgment on whether a struggling company should turn around or sell off part of the business—or, conversely, whether a market leader should grow via merger. Analyst John Maxfield, writing about Red Lobster for the popular investment site Motley Fool, observed that turnarounds rarely succeed. He cited wise words from Warren Buffet, who wrote the following back in 1980: “When a management with a reputation for brilliance tackles a business with a reputation for poor fundamental economics, it is the reputation of the business that remains intact.” The Darden board apparently believed that the fundamental economics of Red Lobster were unfavorable so they sold it. (On the buy side, the Pfizer board made a similarly justified strategic decision—not to let go of a division, but instead to chase, and subsequently let go of, a dream.)

Staples: A Matter of Discretion

The issue: Can the board justly exercise discretion in pay in order to retain executives during a turnaround? The Staples board believed so, and proceeded in good faith to pay accordingly, but shareholders disagreed. On March 3, the Staples board rewarded executives for their added workload in turning the retailer around by approving a “2013 Reinvention Cash Award.” The board also approved an extra reward cycle to retain executives and staff who had not received a bonus in two years due to dragging financials caused by the poor economy for consumer discretionaries. Institutional Shareholder Services (ISS), a proxy advisory firm, urged investors to reject the plan in their advisory “say-on-pay” vote at the annual meeting on June 2. ISS carries considerable influence in the proxy policy-setting and voting processes, and in this case apparently they did, as a majority of shareholders (53.64%) voted against the Staples plan. At that same meeting, 50.66 percent of shareholders cast advisory votes to split the chair and CEO roles at the retailer.

The lessonWhile directors should make every effort to comply with their policies when awarding pay, they should reserve and defend the right to exercise discretion; similarly, directors are the ones who should determine the independent leadership structure for their boards. When boards exercise compensation discretion, for example by making an award that did not appear in a plan, they need to clearly communicate early on their reasons for doing so. This is a key finding of the NACD Blue Ribbon Commission (BRC) on Executive Compensation, convened in 2014, as well as previous BRCs on the topic. Communication, not compensation, may be the core issue here. (Then again, communication of any point requires two parties—the speaker and the listener. In some cases, however, it simply may be that shareholders are unwilling to hear management’s reasons for a nonroutine pay decision.)

Target: Expecting the Impossible?

The issue. If a board knows that a particular risk exists and takes action to defend against it, are directors to blame if the defense does not function well enough to prevent harm? In mid-2013, anticipating hacker problems, Target began installing a $1.6 million malware detection tool made by the computer security firm FireEye; yet due to a break in the chain of alerts during the most recent holiday season, the defense did not work and Target suffered an attack at the height of the holiday shopping season. Subsequently—despite swift response to the problem (replacing the chief information officer and strengthening security)—ISS recommended that shareholders vote against 7 of the company’s 10 directors at the company’s June 11 annual meeting, urging rejection of the members of the audit and corporate responsibility committees. The day before the meeting, Luis Aguilar, a commissioner at the Securities and Exchange Commission, mentioned the Target incident in a speech at the NYSE, and observed that “effective board oversight of management’s efforts to address these issues is critical to preventing and effectively responding to successful cyber-attacks.” Shareholders did vote by a majority on June 11 to keep the full board, but concerns linger. More than 90 lawsuits have been filed against Target by customers and banks for alleged “negligence,” and they are seeking compensatory damages as well.

The lessonThe line between the board and management is still distinct, but it is no longer bright; it will vary by company, so it is up to each board to find it. IT risk oversight is not easy. NACD’s Director’s Handbook Series on Cyber-Risk Oversight recommends that boards approach cybersecurity as an enterprise-wide risk management issue, and encourages directors to understand the legal implications of cyber risk as they apply to their company’s specific circumstances. Boards can encourage them to build that arsenal. Meanwhile, boards can and should vigorously defend themselves against voting campaigns that would disrupt board continuity at the expense of various stakeholders, including not only shareholders but also employees and their communities.

Walmart: What Price Integrity?

The issue. Does the board have a right to invest heavily in building an ethical culture or should shareholders get more of that money? Sometimes it seems that boards are damned if they do and damned if they don’t. On June 6, Walmart shareholders voted to reelect the entire Walmart board, and to reject a proposal that would mandate a separate chair and CEO, among other votes. This vote occurred despite campaigns against the directors in March; both the CtW Investment Group (on March 19) and ISS (on March 25) issued reports critical of Walmart, recommending that shareholders vote against two existing directors, as well as the company’s executive compensation proposals. They claimed that the company failed to disclose information to shareholders regarding sums spent on investigations into alleged company violations of the Foreign Corrupt Practices Act. In fact, Walmart did publish a global compliance report with details on its programs, so the main reason for the critique seems to be the amount of money spent on compliance. Randy Hargrove, a Walmart spokesperson, has assured the public that “[t]he board has authorized whatever resources are necessary to get to the bottom of the matter.”

The lesson. Boards have the right and, one might argue, the obligation to invest resources to ensure ongoing efforts to improve compliance and integrity. Global companies have many employees and agents to oversee. Policies can go only so far. Perhaps the best guidance here comes directly from the classic Delaware Chancery Court decision in the Caremark case (1996) in which Chancellor William Allen, finding in favor of a defendant board in an insurance kickback case, held that a board as part of its duty of care has an obligation to “exercise a good faith judgment that the corporation’s information and reporting system is in concept and design adequate to assure that appropriate information will come to its attention in a timely manner as a matter of ordinary operations.” If a board fulfills that requirement, its oversight should be praised rather than condemned.

Ashford: A Tale of Two REITs

The issue. Who gets to determine governance—the board or shareholders? The recent history of the Ashford REIT complex provides a real-world laboratory for the issue. It all started in February when the Ashford Hospitality Trust (AHT) board amended AHT bylaws to require board approval of any future bylaw amendments. (Previously, AHT bylaws could be amended by shareholders without board approval.) One reason for this amendment is that the AHT board wants the company to remain under the protection of the Maryland Unsolicited Takeover Act (MUTA). The AHT board also voted to increase the number of shares required to call a special meeting of shareholders. In response, ISS called on shareholders to withhold votes for all but one director at the annual meeting on May 13. At that meeting, all directors were voted in by a majority of votes cast, despite a high amount of negative votes for the targeted directors. Earlier, shareholders of an AHT spin-off, called Ashford Hospitality Prime (AHP), which is advised by AHT, approved two proxy proposals submitted by Unite Here, a union representing workers in the garment and hospitality industries. AHP shareholders voted by a majority of 68 percent to have the company opt out of MUTA—a result that the AHT board hopes to avoid. So far the board of AHT is holding firm in favor of takeover protections and remaining under MUTA protection, unlike its AHP spin-off.

The lesson. Within the bounds of legal compliance, governance is a responsibility of the board, not the shareholders. So when it comes to preserving corporate independence, boards need not give up their corporate shields just because activists accuse them of being too defensive. This may well be a case of rhetoric versus reality. When the MUTA was passed 15 years ago (in 1999), the Baltimore Business Journal hailed it as good for investors: “Corporate takeover bill protects stockholders,” read the news item. In an editorial detailing the law’s provisions to a painstaking degree, the Baltimore Business Journal concluded: Some public commentary on the takeover bill has mistakenly suggested that it takes away all obligations directors have to stockholders. To the contrary, unlike Pennsylvania’s corporate law, which is highly pro-management and provides no relief to investors or stockholders in Pennsylvania corporations, Maryland law now provides some increased procedural advantage to and greater flexibility for directors, while preserving the primacy of stockholder value and providing an escape valve from the most troubling provisions for future investors in Maryland corporations. It seems that with the passage of time, and inattention to statutory language, the anti-MUTA myth has risen again. We will watch this case for further developments.

Conclusion

These developments have involved different issues—financial planning, mergers and acquisitions, compensation, cybersecurity, internal controls, and takeover protection. Nevertheless, these developments point to the need for ongoing director education on risk oversight in all of these areas, not just in a classroom, but also on the job, and with more active monitoring. These stories also show the value of understanding the evolving expectations of governance itself. As directors face increasing pressures to continually know more and do more, they can strive to improve, yet at the same time recognize the intrinsic limitations of the board’s role. Directors should also seek to provide investors with information on the context and rationale behind the board’s decisions, as part of the company’s overall shareholder engagement and communication program. This close look at current struggles has yielded important lessons—and guidance for an ever-challenging future.

Story Circle: Discovering Agreement

October 25th, 2013 | By

Linda Alvarez discussed “Discovering Agreement,” a powerful alternative to the old-style adversarial model of contract law. Whether you’re buying a cellphone, selling a business, starting a job, or hiring an employee, contracts are a fundamental part of our personal and professional lives. Traditional practices pit contracting parties against one another, laying a foundation of mistrust. Discovering Agreement is a new paradigm that places shared vision and values first and foremost in the negotiation. The result is a stronger, more sustainable, and enjoyable venture that can endure and prosper—even in the face of disagreement or unexpected change.

Highlights:
1. Traditional contracts are usually structured to try to predict everything that could go wrong and determine the outcome if one of those unfortunate events occurs. One of the problems with traditional contracts is that they sit in a drawer until something goes wrong and then are used in an adversarial manner. That approach provides little incentive for either party to “fix” or address what went wrong, as they instead focus on trying to “win” the dispute. This can increase the chance that both parties will lose sight of why they entered into the contract in the first place.

2. The Discovering Agreement approach works within the framework of traditional contracts. It differs, though, by capturing additional information. Contracts structured under this approach provide for each party: (i) their vision, or higher purpose; (ii) their mission, or what they are joining forces to accomplish; (iii) their values, which will be key drivers under which they will operate; and (iv) their constraints and imperatives, which are what they must avoid and must accomplish with the contract. These serve as touch points if anything goes wrong, to bring both parties back to why they entered into the agreement and what they were trying to achieve. These can either be in a preamble or in an exhibit, as an addition to the deal points and actions that a traditional contract captures.

3. The other key difference in the Discovering Agreement approach is the inclusion of an additional provision for addressing change and engaging conflict. This clause calls for the parties to first try to resolve any dispute through direct conversation. And that discussion will hinge on considering the vision, mission, values, and constraints and imperatives they set out at the start of their relationship. This requirement for dialogue can allow both parties to alter the terms of the agreement and get to a point where both “win” and achieve what they want from the venture. To be practical, this provision will include a time limit. So, for example, if the parties are unable to come to agreement after a certain number of hours of discussion, then they agree to call in a mediator before resorting to litigation or other proceedings.

Speaker:
Linda Alvarez
Founder, Discovering Agreement, Attorney, Integrative Law Practitioner

This summary provided by PricewaterhouseCoopers.