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by paulbaumgart
5998 days ago
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I could be totally off base with this, but sometimes I think Neal Stephenson is at fault here for putting so much emphasis on the idea of fiduciary responsibility and lawsuits resulting from perceived neglect of that responsibility. I remember he made a big deal out of that in Cryptonomicon, and I think it's become kind of a meme. My impression is that it's not such a large concern in most cases, especially for a large company with different voting rights for different classes of shares like Google. Maybe grellas wants to weigh in here? |
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To underscore the difficulty of pursuing a lawsuit claiming breach of fiduciary duty, consider this: I have seen first-hand public companies where a VC-controlled board will use a company's resources to cause the company to acquire bum companies in which the VCs had prior investments (sort of like privately funded bail-outs at company expense); even something so extreme proved to be a very tough case to prosecute given that the VCs who controlled the board had so-called "independent directors" bless the deals.
Taking a corporate action based on so-called corporate responsibility would very likely fall on the safe side of the line for the voting directors in most cases. Business judgment is business judgment and it might be argued that it is good for business for a corporation to position itself as being "green" or "fair to dissidents" or whatever else might be perceived as a good thing to do apart from pure financial motives. If they did so where the economic impact were obvious and highly negative, however, this would certainly subject them to class-action lawsuits and would, in my judgment, be irresponsible conduct by the directors - but this would have to be an extreme case, e.g., (to put it in absurd terms) the Google founders suddenly determining that there are higher purposes in life besides making profits and thereby pulling Google out of its core business because it led to the sin of making profits. This is just another way of saying that, though the business judgment rule gives directors extreme latitude, such latitude is not limitless.
I think, on balance, that the social-responsibility stuff falls in a gray (but relatively safe) area under the technical terms of current corporate law. That said, directors do not want to be seen as doing anything contrary to the shareholders' interests in making profits and that is why recent proposals have all focused on giving shareholders the right to impose these sorts of things on the board via extraordinary votes. Such proposals have gone nowhere to date and, where shareholder advisory votes have been taken, the social-responsibility stuff tends to go down in flames. Shareholders do want to make money, after all. The post here, then, is correct that it takes a pretty extraordinary situation, such as a dominant founder or two controlling things, for this to happen.