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Directors´s Fiduciary Duties in an insolvent company

How should directors behave in the wake of insolvency? Should they still pursue the shareholders` value maximization? Are there other interests that should prevail instead?

This is the topic a March 2018 consultation by the British government tries to clarify, (1). The government seeks to maintain and reinforce a fair, open and attractive environment for businesses, which has benefited from an adequate and updated corporate governance framework. A good insolvency regime includes governance elements so that the events of insolvency due to failures in governance or to a reduced responsibility by directors when approaching difficult times are reduced to a minimum number.

The consultation aims at producing the tools that would help preserve the creditors´ ability to remain in business when debtors face insolvency situations.

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 Previous status and context. (3) Read more…

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Arguments in favor of Intergenerational Equity as a fiduciary duty by Directors.

January 21, 2018 Leave a comment

Survival. Success. Long-term interests of shareholders (or/and stakeholders). Intergenerational equity.

When analysts consider climate change, the use and (present and future) availability of resources, the population growth, urbanization in modern and developed societies, all above-mentioned concepts naturally arise.

Arjya B. Majumdar (Associate Professor at Jindal Global Law School) reviews this topic in a recently published article, (1).

Every international meeting recognizes our obligations to preserve environment and create broader prospects for future generations. Rawls considered this a matter of justice, (2), and this helps understand a moral duty we all may feel to save (so, sacrifice) and contribute for the future of new generations, (Meyer ,(3)).

What the author tries to unveil though is whether there is a law case in favor of intergenerational equity.

Directors´duties towards future shareholders. Read more…

The Duty of Loyalty

February 19, 2017 Leave a comment

The Duty of Loyalty is established in the Spanish Corporate Law (1) in articles 227 until 232. According to it directors need to act with good faith and in the best interest of the corporation; a breach would entail restitution of the damage suffered by the corporation plus the return of the profit the director could have made.

The legislator wanted to further explain the extent of the obligations:

a) Directors must use their powers with the aim they were granted to them.
b) They must keep confidentiality.
c) They must refrain from deliberation and vote when they face a conflict of interest. They also need to adopt measures not to incur in situations where their interests (or those of related parties) face those of the corporation.
d) They need to act free from instructions and criteria established by third people.

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Referring to the conflict of interest, the legislator further explains that it can appear when a director does a transaction with the corporation, when he uses the name of the corporation or its assets in its own interest, when he takes a business opportunity from the corporation, when he/she is paid by a third-party or acts in business as a competitor of the company.

The prohibitions to act may be relaxed if the shareholders general meeting (or in some cases the rest of directors if they are independent with regard to the affected director)) so decides. In general the approval can only be granted if no damage is produced to the company or if it is somehow compensated.

In connection with the Duty of Loyalty, some questions arise in all legal frameworks: Read more…

The Business Judgement Rule

January 29, 2017 7 comments

The last Spanish Corporate Governance reform introduced the Business Judgement Rule (BJR) concept, stemming basically from the US courts in Delaware.

We will make an effort to give a broad and modern vision on the BJR in this post, given its prevalence in modern Corporate law or practice. In this effort we will primarily follow D. Gordon Smith`s article on “The Modern Business Judgement Rule”, (1).

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An initial BJR formulation by courts is recognized in 1927 Delaware court´s decision in the Bodell vs. General Gas & Electric Corporation case. A first approach would outline the BJR protects directors from liabilities stemming from “honest mistakes”either as to law or fact, somehow recognizing the human fallability, but also the fact that it reduces legal costs as directors find it difficult to please every shareholder, as S. Samuel Arsht stated in 1979 (2). Read more…

Work and Pensions and Business, Innovation and Skills Committees: The BHS Report

The inquiry (1 and 2) has tried to shed light into the reasons why some 11.000 BHS workers may be considered direct losers, up to 20.000 when pensioneers are included, many more if we consider eventual job losses in BHS providers, and up to 11 million when current and future pensioneers in other firms, (all of them contributors to the Pension Protection Fund that will afford part of the damage) are counted.

The big numbers also point to some winners: the company was bought in 2000 for £200 million; in the period 2002-04 some £423 million were given in dividends, (more than the £208m in Net Profit), £307m paid to the Green family. Goodwill and some real estate transactions allowed to pay these amounts, but also reduced the firm capacity to fulfill its pension obligations, invest or later afford the loss-making period until 2009, so that in 2014 the company had negative equity and was largely financed  by debt, (part of it granted by Green`s other companies). Operations didn`t really go well, as sales remained flat and profits might have increased mainly as a result of cost cuts. Read more…

The ecoDa/AIG Guide to Directors’ Duties and Liabilities

October 12, 2015 Leave a comment

Ecoda (www.ecoda.org) and AIG have jointly published a Guide to Directors regarding risks they face when acting as such. Both entities have published press releases, (1) and the guide itself, (2). We strongly recommend directors to read the guide. (3)

The landscape remains similar although several changes appear: regulators will be less permissive; fiduciary duties are better defined so that compliance will also be better and more easily demanded; companies (even SME`s) are becoming global, so that directors should assess their liability landscape in geographies in which the company operates.

Directors need to keep themselves out of the firing line by: (i) proactively fulfilling their duties, requiring to receive all necessary information, etc.,  (ii) asking their position to be noted in the minutes and taking private notes, (iii) being wise in procedures to be sure the Business Judgement rule will be applied, (iv) having a goog D&O insurance, etc.

(1) See them here (http://www.aig.co.uk/insights/guide-to-directors-duties-and-liabilities?cmpid=SMC-TWITTER-AIGemea-EMEADirectorsDuties-20151012110500) and here (http://ecoda.org/news-details/article/press-release-report-on-european-directors-duties-and-liabilities-published-by-ecoda-and-aig-1/),

(2) See it here: http://ecoda.org/all-publications/publication/article/report-on-european-directors-duties-and-liabilities-published-by-ecoda-and-aig/

(3) I thank @excellencia_ltd for tweeting the report, which made me aware of its existence.

 

Mergers and Acquisitions and how directors comply with their duties.

Deal protection provisions are among the most negotiated terms in a transaction, as a result of the interest of sellers to prevent new bidders to interfere with their offers, given the effort and resources dedicated to it until the signing day.

 

Sellers would be interested in letting the window open, both because of a higher price perspective, and because under certain jurisdictions, (such as Delaware), those provisions can`t be so onerous that a higher bidder is precluded from appearing.

 

The options for a target board are, (or have been in the past):

 

–         No talk provision: it prohibits the board to respond even to unsolicited higher bids. In was dropped in Delaware in 1999 by a sample of court decisions.

–         No shop provision: it allows the board to respond to any unsolicited offer potentially leading to a higher price. Those provisions, (break-up fees, matching rights, fiduciary termination rights, force-the-vote provisions, change of recommendation, etc.) protect the bidder and let directors fulfill their duties. Those provisions are to be judged as a whole, and different business circumstances in each particular case need to be considered. Since 2007, the fact that the number of transactions has declined, has led the balance more in favor of bidders that in favor of sellers, although reasonableness remains the criterium to follow.

–         Go shop provision: it gained momentum in the 2006-2008 period, and was a balance between the need for a quick deal and the recognition that a post-signing market check is to be done in order for directors to fulfill their (Revlon) duties to pursue the shareholders best interest. The provisions, although tightly fixed, have been adapted in recent times, (Websense and BMC cases), so that

  • In some cases (Websense) the rule is a no-shop, with a go-shop limited to certain bidders who were already active before the announcement. These bidders qualify for a low fee, provided they act in certain limited delays.
  • In other cases (BMC) the rule is a go-shop but excluding from the low break-up fee those bidders already present and analyzing the transaction before the announcement.

Basically, as Mr. Wolf from Kirkland states, “there is room for creativity to tailor market terms to the real-world circumstances of a particular transaction, which is precisely what courts expect boards and their advisors to do.

 

–         Hybrid go shop provisions: in the realm of LBO/MBO in the period 2006-2008, generally with a single financial sponsor, some doubts emerged as for the no-shop provision adequacy for the target boards fiduciary duties; when there was a lonely bidder until signing or announcement, (whether a private equity firm or strategic or industrial purchaser), there was a big concern about the no-shop really discharging directors` fiduciary duties, so that in those cases the go-shop dominated the arena. In certain cases, though, a hybrid solutions appeared, as in Pfizer/Wyeth, Hewitt/Aon and Pfizer/King. It did not include the marketing period, but it let the reduced break-up fee for unsolicited offers if appearing in a month (or so) after the announcement. The solution avoids management distraction from business in the competing offer search period, but still keeps the market-check after the announcement, which itself acts as a call for interested bidders. And the reduced fee works in favor or directors duties`compliance.

 

Apart from deciding on the procedure, a board needs to consider other facts, such as:

 

–         The case that managers might have change in control provisions, so that they could have a conflict of interest,

–         The case that any manager or director might have a relationship with any bidder,

–         The fact that not all offers need to be presented in the same terms, for the same assets, etc., so that the evaluation of alternatives by board must be thoroughly weighted

 

This may remain as a general recommendation: every step, whatever decision standard is followed, needs to be dealt very carefully.

 

Based on several Harvard Law School Forum on Corporate Governance and Financial Regulation:

 

–         Deal Protection — One Size Does Not Fit All, by David Fox from Kirkland & Ellis, November 28, 2009

–         Test-Driving a Hybrid Go-Shop, by David Fox from Kirkland & Ellis, November 28,2010.

–         Custom (Go-)Shopping, by Daniel E. Wolf, from Kirkland & Ellis, June 21, 2013

–         From Vigilance to Vision, by Jennifer Mailander, Corporation Service Company, May 29, 2013.