Monday, November 25, 2019
Many of us teach Francis v. United Jersey Bank, 432 A. 2d 814 (N.J. 1981), in Business Associations courses as an example of a substantive duty of care case. The case involves a deceased woman, Lillian Pritchard, who, in her lifetime, did nothing as a corporate director to curb her sons' conversions of corporate funds. The court finds she has breached her duty of care to the corporation, stating that:
Mrs. Pritchard was charged with the obligation of basic knowledge and supervision of the business of Pritchard & Baird. Under the circumstances, this obligation included reading and understanding financial statements, and making reasonable attempts at detection and prevention of the illegal conduct of other officers and directors. She had a duty to protect the clients of Pritchard & Baird against policies and practices that would result in the misappropriation of money they had entrusted to the corporation. She breached that duty.
Id. at 826. In sum:
by virtue of her office, Mrs. Pritchard had the power to prevent the losses sustained by the clients of Pritchard & Baird. With power comes responsibility. She had a duty to deter the depredation of the other insiders, her sons. She breached that duty and caused plaintiffs to sustain damages.
Id. at 829.
Francis is followed in our text by a number of additional fiduciary duty law cases, including Delaware's now infamous Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985), Stone v. Ritter, 911 A.2d 362 (Del. 2006), and In re Walt Disney Derivative Litigation, 907 A 2d 693 (Del. 2005). In covering these cases and discussing them with students during office hours, I became focused on the following passage from the Disney case:
The business judgment rule . . . is a presumption that "in making a business decision the directors of a corporation acted on an informed basis, . . . and in the honest belief that the action taken was in the best interests of the company [and its shareholders]." . . . .
This presumption can be rebutted by a showing that the board violated one of its fiduciary duties in connection with the challenged transaction. In that event, the burden shifts to the director defendants to demonstrate that the challenged transaction was "entirely fair" to the corporation and its shareholders.
In re Walt Disney Co. Derivative Litigation, 907 A.2d 693, 746-47 (Del. Ch. 2005). I have some significant questions about the application of the "entire fairness" standard of review in certain types of cases. In thinking those through with some of my colleagues (including a few of my co-bloggers), I realized I was curious about the answer to a related question: How would the Francis case be pleaded, proven, and decided as a breach of duty action under Delaware law?
I have my own ideas. But before I share them, I want yours. How would you categorize/label the breach(es) of duty as a matter of Delaware law? What standard of conduct and liability would you expect a Delaware court to apply as a matter of Delaware law? And what standard of review would you expect that court to use? Leave your ideas on any or all of the foregoing in the comments, please!
Monday, May 27, 2019
When I was young, Memorial Day meant one thing: the Memorial Day Fair at my church, The Cathedral of the Incarnation in Garden City, New York. As I contemplated how to honor our war dead this Memorial Day, I kept coming back to thinking about that fair. Others have also had memories of the fair on their minds this week. A May 25th post in a Facebook group I belong to, I grew up in Garden City, New York, asked: "What are your memories of the Memorial Day fair at the cathedral? I looked forward to it every year!" At the time this post was published, there were over 100 comments and replies posted. The Memorial Day Fair even gets a nod on the TripAdvisor page for the church--"Wonderful [sp] Memorial Day Fair and Concert." Local press stories on the preparations and schedule for this year's fair can be found here and here.
The Memorial Day Fair is a collaborative community event in which local businesses join together with church volunteers to produce a major good time. The webpage for this year's fair notes ten business sponsors and boasts that the fair "will feature games, inflatables, rides, prizes, and delicious fair food! You'll also find arts & crafts, vendors, organ concerts with patriotic sing-alongs (at 1pm and 3pm), historic tours, and an archives display." Those commenting in the Facebook group remembered the goldfish (most of which died rather soon after the fair) that many of us won by throwing ping-pong balls into goldfish bowls, the games, the rides, and the food--especially the cotton candy.
I remember all that--and selling ice cream to a famous actor visiting our local famous basketball player. But I also remember the American Legion's red poppies and the local Memorial Day Parade (which many also remembered in response to the Facebook group post). These parts of the day were directed almost exclusively toward honoring those who lost their lives fighting for our country and became intertwined with the fair in meaningful ways.
My memories of the Cathedral of the Incarnation Memorial Day Fair remain relatively strong as I take time out today to remember why Memorial Day exists: to honor the lives of people who died while serving in the U.S. armed forces. (See also here and here.) The forces of community in my home town--business and religious interests alike--that came together (and apparently continue to come together) in honor of the men and women who died in military service to our country is a great example of social responsibility in action. It continues to inspire.
Monday, December 25, 2017
Merry Christmas to all celebrating today. I am enjoying a white Christmas in Pittsburgh, Pennsylvania with my dad and my brother and his husband, joined later today by my son and his fiancée (who had to work the night shift last night--she's a hospital nurse). For the first time in many, many years--I think since before I was married in 1985--I am separated from my husband this Christmas. He is back in Tennessee with my daughter, who celebrated her 26th birthday yesterday. Their work schedules didn't accommodate holiday travel this year. My daughter, in particular, worked yesterday and will work again tomorrow. The working world is a different place now during the holidays than it was when I was a child.
As I sit here with a blood orange mimosa on Christmas morning, that observation set me to thinking about blue laws and Christmas. (Ann and I are thinking along similar lines this week, it seems . . . .) A lot of folks save their shopping--including shopping for alcohol--until somewhat the last minute. This year, Christmas is on a Monday, meaning that Christmas Eve--a prime shopping day--was on a Sunday. I wondered whether any blue laws prevented stores from being open or alcohol from being sold yesterday (or today, for that matter) . . . .
Back in 2006, when Christmas also was on a Monday, National Public Radio's All Things Considered covered this story from a South Carolina perspective. Tennessee law, TCA § 57-3-406(e) (2016), provides as follows:
No retailer shall sell or give away any alcoholic beverage between eleven o'clock p.m. (11:00 p.m.) on Saturday and eight o'clock a.m. (8:00 a.m.) on Monday of each week. No retail store shall sell, give away or otherwise dispense alcoholic beverages except between the hours of eight o'clock a.m. (8:00 a.m.) and eleven o'clock p.m. (11:00 p.m.) on Monday through Saturday. The store may not be open to the general public except during regular business hours. Likewise, all retail liquor stores shall be closed for business on Thanksgiving Day and Christmas Day.
So, folks in Tennessee could not buy drinking alcohol yesterday from any store but can buy spirits today (absent applicable local ordinances to the contrary) from a retail store that is not a liquor store (if I am reading that correctly).
Massachusetts, my immediate former home state, has many exceptions to its blue laws, including allowing certain retail establishments to be open on Sundays, provided that rank-and-file (non-executive, non-administrative over a certain pay grade) retail employees are paid time-and-a-half if the business employs more than seven people. See MGL c. 136, § 6(50). This exception does not apply to any state-defined legal holiday (and to Christmas, when it is on a Sunday), but the exception does apply to the day following Christmas when Christmas occurs on a Sunday. The exception for alcohol sales is more detailed and includes:
The retail sale of alcoholic beverages not to be drunk on the premises on Sundays by retail establishments licensed under section 15 of chapter 138; provided, however, that notwithstanding this chapter, a municipality may prohibit the retail sale of alcoholic beverages on Sundays by licensees under section 15 by vote of the city council or board of selectmen; provided further, that there shall be no such sales prior to the hour of 10:00 a.m. or on Christmas Day if Christmas occurs on a Sunday; and provided further, that establishments operating under this clause which employ more than 7 persons shall compensate all employees for work performed on a Sunday at a rate of not less than one and one-half of the employee's regular rate. No employee shall be required to work on a Sunday and refusal to work on a Sunday shall not be grounds for discrimination, dismissal, discharge, deduction of hours or any other penalty.
Whoever on Sunday keeps open his shop, warehouse, factory or other place of business, or sells foodstuffs, goods, wares, merchandise or real estate, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for a first offense, and a fine of not less than fifty dollars nor more than two hundred dollars for each subsequent offense, and each unlawful act or sale shall constitute a separate offense.
Even where retail establishments may be open, states may regulate work on Christmas--and on other holidays, too--designated as legal holidays by the state. I grew up with a system of federal and state holidays that serve this purpose. But The Legal Genealogist tells us that Christmas has not been a government-designated holiday from work for very long. The Tennessee list for 2017 can be found here. The Massachusetts legal holiday list is here.
Anyway, lest I bore you with my holiday blue law musings, I will close now by wishing you a happy continuing holiday season from here in Pittsburgh. Enjoy time with and memories of family and friends. From my house to yours, this brings wishes for a lovely holiday week. Enjoy.
Friday, October 13, 2017
Earlier this week, my two-year old daughter was in the pediatric ICU with a virus that attacked her lungs. We spent two nights at The Monroe Carell Jr. Children's Hospital at Vanderbilt (“Vanderbilt Children’s). Thankfully, she was released Wednesday afternoon and is doing well. Unfortunately, many of the children on her floor had been in the hospital for weeks or months and were not afforded such a quick recovery. There cannot be many places more sad than the pediatric ICU.
Since returning home, I confirmed that Vanderbilt Children’s is a nonprofit organization, as I suspected. I do wonder whether the hospital would be operated the same if it were a benefit corporation or as a traditional corporation.
Some of the decisions made at the hospital seems like they would have been indefensible from a shareholder perspective, if the hospital had been for-profit. Vanderbilt Children’s has a captive market, with no serious competitors that I know of in the immediate area. Yet, the hospital doesn’t charge for parking. If they did, I don’t think it would impact anyone’s decision to choose them because, again, there aren’t really other options, and the care is the important part anyway. The food court was pretty reasonably priced, and they probably could have charged double without seriously impacting demand; the people at the hospital valued time with their children more than a few dollars. The hospital was beautifully decorated with art aimed at children – for example, with a big duck on the elevator ceiling, which my daughter absolutely loved. There were stars on the ceiling of the hospital rooms, cartoons on TVs in every room, etc. All of this presumably cost more than a drab room, and perhaps it was all donated, but assuming it actually cost more, I am not sure those things would result in any financial return on investment.
As we have discussed many times on this blog, even in the traditional for-profit setting, the business judgment rule likely protects the decisions of the board of directors, even if the promised ROI seems poor. But at what point – especially when the board knows there will be no return on the investment at all - is it waste? (Note: Question sparked by a discussion that Stefan Padfied, Josh Fershee, and I had in Knoxville after a session at the UTK business law conference this year). And, in any event, the Dodge and eBay cases may lead to some doubt in the way a case may play out. And even if the law is highly unlikely to enforce shareholder wealth maximization, the norm in traditional for-profit corporations may lead to directorial decisions that we find problematic as a society, especially in a hospital setting.
Now, maybe the Hippocratic Oath, community expectations, and various regulations make it so nonprofit and forprofit hospitals operate similarly. As a father of a patient, however, even as a free market inclined professor, I would prefer hospitals to be nonprofit and clearly focused on care first. Also, some forprofit hospitals are supposedly considering going the benefit corporation route, which may be a step in the right direction – at least they have an obligation to consider various stakeholders (even if, currently, the statutory enforcement mechanisms are extremely weak) and at least there are some reporting requirements (even if , currently, reporting compliance is miserable low in the states I have examined and the statutory language is painfully vague).
I am not sure I have ever been in a situation where I would have paid everything I had, and had no other good options for the immediate need, and yet I still did not feel taken advantage of by the organization. There is much more that could be said on these issues, but I do wonder whether organizational form was important here. And, if so, what is the solution? Require hospitals to be nonprofits (or at least benefit corporations, if those statutes were amended to add more teeth)?
Friday, September 1, 2017
There has been quite a lot written about the relative lack of women on boards of directors (and their impact on boards of directors). See here, here, here, here, here, here, here, and here. Women hold slightly less than 20% of the board of director seats at major U.S. companies, depending on what group of companies you consider. See here, here, and here.
In this post, I am not going to discuss the vast literature on the topic of women in the boardroom or the quotas that some countries have established, but I do want to point out the curious lack of fathers at playgrounds in Nashville this summer. I am including this post in the Law & Wellness series because I think men and women would both benefit if we saw more fathers at playgrounds during the week.
During ten trips to our popular neighborhood playground, during weekday working hours, I saw 6 men and 72 women. Now, it is probable that some of the people I saw were nannies or grandparents, but I excluded the obvious ones and quite a large percentage seemed like parents anyway.
This is an extremely small sample, but the percentage of fathers at playgrounds with their children looks lower than the percentage of women on boards. While I haven’t counted, I have noted fairly similar ratios at the public library story-time, the trampoline park, the zoo, and the YMCA pool during weekday working hours.
Perhaps this is not surprising, and perhaps the ratios are different in non-Southern cities (though Nashville is pretty progressive, at least for this area of the country). But I will say that I sometimes feel out of place and sometimes feel the need to explain myself when I am out solo with my children during "working hours."
When asked, I do have a “good” explanation – a fabulously flexible job – but I sometimes imagine those conversations if I had chosen to stay home while my wife worked or if I were taking time off a "normal" 8 to 5 job. Unfortunately, I don't think we are at a place, at least in my community, where we give fathers much respect for taking care of their children. I consider raising my children an incredibly important and valuable role. Raising children is demanding and draining, but my life is undoubtedly richer for it. Over the last few years, I have also gained quite a lot of appreciation for people who raise children on their own; the job is difficult enough for my wife and me together. I am not sure what actions from government and business would be best for children, but I do know that both should be seriously considering their options.
Friday, August 18, 2017
On July 15 of this year, The New York Times ran an article entitled, “The Lawyer, The Addict.” The article looks at the life of Peter, a partner of a prestigious Silicon Valley law firm, before he died of a drug overdose.
You should read the entire article, but I will provide a few quotes.
- “He had been working more than 60 hours a week for 20 years, ever since he started law school and worked his way into a partnership in the intellectual property practice of Wilson Sonsini.”
- “Peter worked so much that he rarely cooked anymore, sustaining himself largely on fast food, snacks, coffee, ibuprofen and antacids.”
- “Peter, one of the most successful people I have ever known, died a drug addict, felled by a systemic bacterial infection common to intravenous users.”
- “The history on his cellphone shows the last call he ever made was for work. Peter, vomiting, unable to sit up, slipping in and out of consciousness, had managed, somehow, to dial into a conference call.”
- “The further I probed, the more apparent it became that drug abuse among America’s lawyers is on the rise and deeply hidden.”
- “One of the most comprehensive studies of lawyers and substance abuse was released just seven months after Peter died. That 2016 report, from the Hazelden Betty Ford Foundation and the American Bar Association, analyzed the responses of 12,825 licensed, practicing attorneys across 19 states. Over all, the results showed that about 21 percent of lawyers qualify as problem drinkers, while 28 percent struggle with mild or more serious depression and 19 percent struggle with anxiety. Only 3,419 lawyers answered questions about drug use, and that itself is telling, said Patrick Krill, the study’s lead author and also a lawyer. “It’s left to speculation what motivated 75 percent of attorneys to skip over the section on drug use as if it wasn’t there.” In Mr. Krill’s opinion, they were afraid to answer. Of the lawyers that did answer those questions, 5.6 percent used cocaine, crack and stimulants; 5.6 percent used opioids; 10.2 percent used marijuana and hash; and nearly 16 percent used sedatives.”
There is much more in the article, including claims that the problems with mindset and addiction, for many, start in law school.
After reading this article, and many like it (and living through the suicide of a partner at one of my former firms), I decided to do a series of posts on Law & Wellness. These posts will not focus on mental health or addiction problems. Rather, these posts will focus on the positive side. For example, I plan a handful of interviews with lawyers and educators who manage to do well both inside and outside of the office, finding ways to work efficiently and prioritize properly. My co-editors may chime in from time to time with related posts of their own.