Friday, September 15, 2023

To Whom are Caremark Duties Owed?

A while ago, the National Center for Public Policy Research – a conservative organization that focuses its advocacy in the corporate and securities space – filed a lawsuit against Starbucks, arguing that its diversity equity and inclusion program ran afoul of Title VII of the Civil Rights Act of 1964, and Section 1981.

Conservative organizations have been launching a number of Section 1981-based challenges to DEI programs, but usually these are on behalf of workers.  The NCPPR case was unusual in that it brought its claims derivatively, as a Starbucks shareholder, on the ground that the directors’ illegal conduct violated their fiduciary duties to the company.

The judge dismissed NCPPR’s complaint a while back, but only now just got around to issuing the opinion, and I find it fascinating.

Starbucks’s key argument was that NCPPR did not, in fact, represent the interests of Starbucks shareholders, and therefore was not a proper representative in a derivative action.  In particular, Starbucks argued that the NCPPR’s concerns were personal, due to its general opposition to DEI policies, and that Starbucks’s major shareholders supported its DEI efforts.  Starbucks cited the fact that BlackRock and Vanguard have both argued that companies should address DEI risks, and that NCPPR’s anti-diversity shareholder proposals had been voted down in prior years.  (In response, NCPPR argued among other things that BlackRock and Vanguard may not in fact be representing the interests of the investors in its funds.)

The judge agreed with Starbucks.  He relied on Larson v. Dumke, 900 F.2d 1363 (9th Cir. 1990) for the proposition that derivative plaintiffs are not appropriate representatives if they are advancing their personal interests, demonstrate vindictiveness, and hold only a few shares.  Here, that combination of factors was met:

This Court is not an investment counselor. Nor is it a political attaché. Courts of law have no business involving themselves with reasonable and legal decisions made by the board of directors of public corporations…It is clear Plaintiff is pursuing its personal interests rather than those of Starbucks. It has shown obvious vindictiveness toward Starbucks, that it would rather cause significant harm to Starbucks and other investors in the form of a declaratory judgment, and that it lacks the support of the vast majority of Starbucks shareholders.

Plaintiff has a clear goal of dismantling what it sees as destructive DEI and ESG initiatives in corporate America. Contempt for DEI and ESG programming and practices is clear in Plaintiff’s publications and literature. In fact, Plaintiff specifically calls for voting against every current member of Starbucks Board based primarily on support for these DEI Initiatives. Based on the briefing and nature of Plaintiff’s self-described political interests, it is clear to the Court that Plaintiff did not file this action to enforce the interests of Starbucks, but to advance its own political and public policy agendas.

Furthermore, Plaintiff owns only 56 shares of approximately 1.15 billion outstanding shares of Starbucks stock. Plaintiff’s shares are worth approximately $6,000 of a company with a market capitalization of more than $121 billion. Plaintiff’s dislike of DEI and ESG Initiatives has little support from Starbucks’ other shareholders and no support from Starbucks’ Board. In this action, Plaintiff seeks to override the authority of the Starbucks Board and obtain disproportionate control of Starbucks’ decision making to advance its own agenda….

Plaintiff is apparently unhappy with its investment decisions in so-called “woke” corporations. This Court is uncertain what that term means but Plaintiff uses it repeatedly as somehow negative. This Complaint has no business being before this Court and resembles nothing more than a political platform. Whether DEI and ESG initiatives are good for addressing long simmering inequalities in American society is up for the political branches to decide. If Plaintiff remains so concerned with Starbucks’ DEI and ESG initiatives and programs, the American version of capitalism allows them to freely reallocate their capital elsewhere…

I can’t say I disagree with this, exactly, but I do wonder how it gels with a Caremark claim of the type brought by NCPPR.  Now, Starbucks is not organized in Delaware – it’s a Washington company – but NCPPR claims that Washington law, like Delaware’s, provides illegal action is a violation of fiduciary duty, and for the purposes of this blog post, I’ll assume the laws are similar.

As I previously explained in connection with the shareholder derivative claims against Fox Corp., corporate boards are prohibited from engaging in illegal conduct, even if they conclude it’s ex ante beneficial for the company.  That is, they are not permitted to make a calculation that, given the expected benefits and the likelihood of detection, it is in fact profit-maximizing to break the law.  This was actually something that VC Laster just recently articulated:

In one hypothetical scenario, the lawyers say: “Although there is some room for doubt and hence some risk that our regulator may disagree, we believe the company is complying with its legal obligations and will remain in compliance if you make the business decision to pursue this project.”

In the other hypothetical scenario, the lawyers say: “The company is not currently in compliance with its legal obligations and faces the risk of enforcement action, and if you make the business decision to pursue this project, the company is likely to remain out of compliance and to continue to face the risk of an enforcement action. But the regulators are so understaffed and overworked that the likelihood of an enforcement action is quite low, and we can probably settle anything that comes at minimal cost and with no admission of wrongdoing.”

In the former case, the directors can make a business judgment to pursue the project. In the latter case, the decision to pursue the project would constitute a conscious decision to violate the law, the business judgment rule would not apply, and the directors would be acting in bad faith.

So, as I said in my blog post, fiduciary prohibitions on illegal conduct represent the outer limits of shareholder primacy; directors must forego profit maximizing actions in order to benefit stakeholders who are protected by positive law.  Caremark/Massey claims are therefore an odd duck in corporate law, because they are brought by shareholders, but, strictly speaking, they do not vindicate shareholders’ interests.  Liability will be imposed even if the conduct was, in fact, ex ante beneficial for shareholders. 

So, you see where I’m going with this in the Starbucks case.  I absolutely agree that the NCPPR does not represent the interests of Starbucks shareholders, and is, in fact, antagonistic to those interests.  But is that the right frame for a Caremark/Massey claim in the first place?

Ann Lipton | Permalink


Interesting case and post. I wonder if you know whether Washington State follows Delaware's unusual bad faith/duty of loyalty framework for legal compliance fiduciary duty actions, or whether Washington still views these actions as cases involving the breach of a substantive duty of care. I am thinking that distinction may make a difference here.

Posted by: joanheminway | Sep 16, 2023 11:53:47 AM

Hi Joan! I don't know, actually - NCPPR said the regimes were similar and I didn't really inquire much beyond that. The complaint mentioned bad faith/loyalty so that was at least alleged.

Posted by: Ann Meredith Lipton | Sep 16, 2023 11:56:48 AM

I’m sorry to be so late in posting this comment, but I have been thinking about the blog post for a while. It seems to me that the two approaches do gel.

In the Walmart hypothetical, the project was clearly unlawful, the directors knew this but authorized it anyway, and there was resulting harm to the company. The directors are going to lose a derivative action against them by the stockholders.

But are they liable to anyone who might want to bring a claim? Not in a derivative action; only the stockholders can bring that. The Starbucks case addresses the other side: who gets to bring a claim. And someone who has no real stake in the matter, but simply wants to control corporate behavior, is not an appropriate plaintiff in a derivative action.

No doubt it will be hard in some cases to tell if is potential plaintiff really shares an interest with the other stockholders or not. The Starbucks case is not such a case.

Posted by: John Baker | Oct 5, 2023 12:30:48 PM

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