[aspenmayer]

Has this law ever been enforced against a company; that is, is there a ore-existing verdict against a Delaware company for violating this statute? Or is this more of a hypothetical threat? What would the damages or penalty be for violation? It’s not like you can demand money a company should have made without cause or more importantly, verifiable harm to the counter-party.

[colonelanguz]

Certainly it has been enforced against a company (thousands of them), but in a way it is more of a hypothetical threat. I was not referring to a statutory law, but rather to fiduciary duties, which derive from the common law of equity. The quotation from the Hsu case I provided above is a clear depiction of the standard of conduct required of directors and officers of Delaware corporations. But in reality, fiduciary standards operate more like you suggested—as a hypothetical threat. The reason for this is that, although the standards of conduct demanded of Delaware directors and officers are onerous and exacting, the standard of judicial review of challenged conduct is ordinarily very relaxed. In most ordinary situations, the standard of review is the business judgment rule, which essentially punts on the question of whether a particular action violates a fiduciary duty. The idea is that courts do not supplant directors' judgment with their own. More onerous standards of review are available in other situations, such as mergers and transactions where an interested party sits on the board or is an executive. (Facebook is an interesting example of a controlled company, given Zuckerberg's ownership stake, and its decisions might be subject to more scrutiny, but procedural safeguards are generally available to cleanse even conflicted decisionmaking.)

It's worth clarifying that only those to whom fiduciary duties are owed can ever sue for damages resulting from their breach. In other words, shareholders. That's how the threat gets operationalized—by a shareholder or class of shareholders suing the corporation for failing to maximize shareholder value through a fiduciary breach.

Anyways, the point I really wanted to make is that shareholder value maximization really is meaningfully encoded in American corporate law. If you meant to suggest that reality is less black-and-white than that, then I hope the foregoing ramble confirms that you are correct!

[aspenmayer]

Thank you for typing this well thought out response! I see the fiduciary duty canard brought out and it usually functions in debate as a thought-terminating cliche. My comment was meant to elucidate whether or not it was the last word on fiduciary duty; your comment helps clarify the judicial and fiduciary reality on the ground, and really added a lot to my understanding of these issues. Thanks again.

[colonelanguz]

Thank you for your kind words! I totally agree about how flippantly people throw out the value-maximization point. And it is definitely true that the real standards which govern directors' and officers' conduct are murkier than the maxim "maximize shareholder value." The Business Roundtable's recent embrace of stakeholder theory seems likely to complicated things [1], and efforts by influential people like former Delaware Supreme Court Chief Justice Leo Strine [2] and legendary corporate lawyer Martin Lipton [3] have meaningfully contested the accepted definition of corporate purpose outside of the academy in recent months. But I do think Delaware law is pretty clear on the principle behind D&Os' fiduciary duties. The best summation I have seen of it is in a talk that Vice Chancellor Travis Laster gave at UVA Law last spring; [4] it's a great talk. Cheers yo.

[1] https://www.businessroundtable.org/business-roundtable-redef...

[2] https://corpgov.law.harvard.edu/2020/05/16/purpose-with-mean...

[3] https://corpgov.law.harvard.edu/2020/05/27/on-the-purpose-of...

[4] https://www.youtube.com/watch?v=ET8v47XPcUY&feature=youtu.be

[aspenmayer]

Oh wow! Even more info. I remember hearing about the Business Roundtable on a podcast when it was breaking, but haven’t heard much since.

Did it end up just being lip service, or are there lasting changes in industry or individual companies that we can point to which show prioritization of stakeholder value over simple shareholder value?

[colonelanguz]

That question is probably a bit over my head. My outlook is pretty grim and skeptical because of my experience with American capitalism so far. But the fact that people like Leo Strine and Marty Lipton are apparently meaningfully moving these ideas beyond the bounds of academia is definitely a good sign. (Slightly) more tangibly, 93% of investor respondents to a recent survey about corporate purpose indicated that it's important for a corporation to have a purpose, and 38% agreed that defining/managing stakeholder impact is an important reason to have a corporate purpose.[1] (This study was published on the HLS Blog after I wrote a more cynical reply to you yesterday and forgot to send it. Neat I guess.)

I read the Harvard Law corporate governance blog pretty regularly, and a staggering percentage of recent scholarship on there has been about corporate purpose, stakeholder capitalism, and ESG. ESG and stakeholder theory aren't exactly the same thing, but here's a good overview of how ESG might impact M&A and governance moving forward [2].

[1] https://corpgov.law.harvard.edu/2020/06/19/making-corporate-... [2] https://corpgov.law.harvard.edu/2020/02/20/the-coming-impact...

[aspenmayer]

*pre-existing