DELAWARE SUPREME COURT AFFIRMS DISNEY, CONTINUING VITALITY OF BUSINESS JUDGMENT RULE

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1 August 2006 EXECUTIVE SUMMARY CORPORATE GOVERNANCE TASK FORCE DELAWARE SUPREME COURT AFFIRMS DISNEY, CONTINUING VITALITY OF BUSINESS JUDGMENT RULE Michael W. Peregrine, Esquire McDermott Will & Emery LLP, Chicago, Illinois James R. Schwartz, Esquire Manatt Phelps & Phillips LLP, Los Angeles, California William W. Horton, Esquire Haskell Slaughter Young & Rediker LLC, Birmingham, Alabama In a major validation of the business judgment rule, 1 the Delaware Supreme Court has affirmed that the directors of the Walt Disney Company did not violate their fiduciary duty in connection with the hiring and subsequent termination of Michael Ovitz as Disney s chief operating officer. 2 In so doing, the court affirmed the much-scrutinized August 2005 decision of Chancellor William B. Chandler III, holding that aspirational best practices, while a worthwhile goal, do not constitute the legal standard under which director liability is to be judged. In that earlier decision, Chancellor Chandler found that the Disney directors had acted in good faith and in a manner consistent with their duty of loyalty, that the full board had made a proper delegation of authority to the 1 The business judgment rule is a common law rule (often incorporated into statute) that presumes that in making a business decision, the directors of a corporation have acted on an informed basis, in good faith, and in the honest belief that the action was taken in the best interests of the corporation, absent evidence of fraud, bad faith, or self-dealing. Essentially, the rule a linchpin of Delaware corporate law in particular provides that so long as directors have not violated their fiduciary duties to the corporation and have engaged in an appropriate deliberative process, a court will not second-guess their decisions even if those decisions ultimately prove to have been unwise. 2 In re Walt Disney Derivative Litigation, Case No. 411, 2005 (Del. June 8, 2006).

2 compensation committee and that, as a result, the directors were protected from personal liability under the business judgment rule. The supreme court s decision should be welcome news to corporate directors, especially given the highly publicized criticism of the actions of the Disney directors in connection with the Ovitz matter and the attempt by plaintiffs in that matter to establish a rule that would equate a lack of due care with bad faith. This article will briefly review and analyze the underlying facts and the supreme court s decision, and will identify specific lessons therefrom for nonprofit corporate boards. I. BRIEF OVERVIEW OF CASE The case came to the supreme court on appeal from Chancellor Chandler s 175- page decision, which followed a thirty-seven-day bench trial. The litigation was brought as a derivative action, with claims based on alleged breaches of individual directors duties of care, loyalty, and good faith and alleged waste of corporate assets in connection with Disney s short employment relationship with Mr. Ovitz. The directors were alleged to have breached their fiduciary duty and acted in bad faith in connection with both their approval of the employment and compensation of Mr. Ovitz and of his subsequent no fault termination after only fourteen months of employment, which triggered payment of a controversial $130 million severance package. Specifically, the plaintiffs argued that those breaches of fiduciary duty deprived the Disney defendants of the protection of the business judgment rule and required them to establish the fairness of their actions to the corporation (a burden which plaintiffs alleged they failed to meet). 3 While critical of many of the board s related practices and actions, Chancellor Chandler nevertheless concluded that they were protected business decisions, and found no liability on behalf of any defendant. 4 3 In the alternative, the plaintiffs argued that even if the business judgment rule applied, the defendants conduct constituted corporate waste. 4 For a more detailed discussion of the facts and Chancellor Chandler s decision, see Peregrine and Schwartz, Disney s Message to Healthcare Governance: Process Counts AHLA Sarbanes-Oxley Task Force Executive Summary, September 2005, available at =/MembersOnly.cfm

3 A unanimous supreme court, in an eighty-nine-page decision written by Justice Jacobs, ratified Chancellor Chandler s analysis and affirmed his ruling that personal liability should not be imposed on the individual directors. In doing so, the court reached significant conclusions about the board s actions and processes in a variety of areas: 1. Exercise of Due Care. Under Delaware law, the duty of care refers to directors duties to appropriately inform themselves of relevant facts and to act only after due consideration of such facts. On appeal, the principal duty of care issues revolved around the extent to which board and committee members adequately informed themselves before reaching employment- and compensation-related decisions, based largely on the board s delegation of those issues to its compensation committee and on the form in which relevant information was communicated to the compensation committee and the board. The court affirmed the Chancellor s decision that the board s delegation of authority to the compensation committee was indeed appropriate under state law, and that committee members had adequately informed themselves of the material facts, even though those facts could have been presented in a more comprehensive and user-friendly fashion. In so doing, it agreed with the Chancellor s decision that, while the committee process fell short of best practices, the process did not fall below the level required for a proper exercise of due care. 5 As noted above, key to this portion of the decision was the court s view that aspirational best practices, while a valuable goal, do not define the legal standard by which director conduct is to be measured. Moreover, the court s holding provided strong support for the rights of boards of directors to delegate responsibility to appropriate committees of the board and to reasonably rely on outside consultants in reaching its decisions. 2. Exercise of Good Faith. On appeal, the plaintiffs argued that the Chancellor applied an incorrect definition of bad faith in analyzing the actions of directors, at both the full board and committee levels. This is an important consideration, because a demonstration of bad faith can be used to rebut the presumption of the 5 The court applied a helpful approach to this analysis, comparing what had actually happened at the Committee level to what would have occurred had best practices been applied

4 business judgment rule. In upholding the Chancellor s decision that the directors did not breach their duty to act in good faith, the court confirmed that gross negligence (including a failure to inform oneself of available material facts) does not, without more (e.g., malevolence or an intentional and conscious disregard for one s fiduciary obligations), constitute bad faith. In this regard, the court strongly distinguished between simple gross negligence constituting a breach of the duty of care, and the type of actions necessary to establish what the court believed was a very different concept of lack of good faith. According to the court, a breach of the duty of good faith must involve either subjective bad faith fiduciary conduct motivated by an actual intent to do harm, which was not alleged in the case or an intentional and conscious (as distinguished from negligent or grossly negligent) dereliction of duty. 3. Waste of Assets. The third principal claim on appeal was that (the business judgment rule aside) the amount required to be paid to Mr. Ovitz in the event of a no fault termination constituted corporate waste. The court again affirmed the extremely high standard of abuse required to implicate the corporate waste doctrine, holding that [a] claim of waste will arise only in the rare, unconscionable case where directors irrationally squander or give away corporate assets. The court held that Disney s clear obligations under the terms of Mr. Ovitz s contract, the absence of any basis for for-cause termination and the presence of credible testimony that the company would be better off without Mr. Ovitz disposed of this claim, because they provided a rational basis for the no-fault termination decision. II. GENERAL RELEVANCE OF DELAWARE DECISIONS Delaware cases are worthy of note by nonprofit corporations because of the number of businesses incorporated in Delaware, the volume of business controversies litigated in Delaware courts, the strength of its judiciary (including a specialized court, the Chancery Court, that has jurisdiction over cases arising under its corporate laws), and the fact that it has a unified corporation code applicable to for-profit and nonprofit corporations alike. Furthermore, Delaware decisions often address alleged violations of fiduciary duty that closely resemble those duties owed by directors of nonprofit corporations. Accordingly, rulings of Delaware courts on issues of director conduct can - 4 -

5 be particularly informative to nonprofit organizations and those who regulate them even where those organizations are not governed by Delaware law. III. ANALYSIS 1. The case confirms the vitality of the business judgment rule, even under fact patterns that may be less than ideal. Despite the imperfections in the Disney board s decision-making process, its exercise of good faith and due care was sufficient to sustain the presumption of business judgment rule protection. 2. In the court s words, Aspirational ideals of corporate good governance practices... can usually help directors avoid liability. But they are not required by corporation law and do not define the standards of liability. In other words, corporate law does not require adherence to supposed best practices to satisfy fiduciary obligations. There is no basis to suggest (as some have) that the case would have been decided differently had the subject conduct occurred in the present (i.e., post-sarbanes Oxley). However, as noted in the Chancery Court decision, corporate directors considering similar circumstances on a going-forward basis would be well advised to consider the criticisms leveled at the Disney board and attempt to avoid the more obvious pitfalls, at a minimum. 3. Along those lines, application of evolving perceptions of best practices is nevertheless an admirable aspiration and can constitute evidence of good faith. The conscientious pursuit by directors of principles of best practices is the best prophylactic against liability. 6 That the Disney directors were able to avoid liability under these facts does not obviate the fact that they had to go through extraordinarily expensive litigation to achieve that result. 4. Gross negligence is not the same as bad faith. A finding of bad faith which requires evidence beyond that necessary to show gross negligence may serve to rebut the presumption of the business judgment rule (which is why the use of allegations of bad faith is a growing pleading practice in fiduciary duty litigation). Bad faith allegations can also be used to vitiate indemnification and insurance protection. 6 E. Norman Veasey, Counseling Directors in the New Corporate Culture, 59 THE BUSINESS LAWYER 1447, (Aug. 2004)

6 5. While the business judgment rule (in varying forms) is recognized as generally applicable to nonprofit corporations in most jurisdictions, it should not be assumed that a state charity official or a court reviewing the actions of a nonprofit board under similar circumstances would reach the same conclusions as the Disney court. This is particularly the case given the absence of a market remedy in the nonprofit context. 6. Accordingly, nonprofit organizations and their counsel are well advised to do whatever they reasonably can including effective education and documentation to position themselves to render informed decisions in good faith. The authors recommend that nonprofit boards take the following steps to support good faith decision-making: i. Confirming the applicability of the business judgment rule in the relevant jurisdiction. ii. Adopting and maintaining recognized governance best practices, taking into account the particular circumstances of the organization. iii. Promoting active board discussions and emphasizing process protections as a key element in board decision-making. iv. Maintaining an awareness of the financial posture and related competitive strategy of the enterprise. v. Confirming board access to information and advisors necessary to making an informed decision. vi. Monitoring the board agenda and reviewing all board and committee meeting minutes to ensure an accurate record of deliberations. vii. Assuring a functioning and effective conflict of interest disclosure and review process. viii. Having a coherent understanding of any business transactions brought to the board for approval, including the relationship of the transaction to the mission of the organization. ix. Confirming the appropriateness of any delegation of principal board responsibility to a board committee. x. Application of vigorous conflict of interest procedures to particular decisions coming before the board

7 These recommendations are designed to emphasize good faith and position the board s action for the protection of the business judgment rule. DELAWARE SUPREME COURT AFFIRMS DISNEY, CONTINUING VITALITY OF BUSINESS JUDGMENT RULE 2006 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United State of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought from a declaration of the American Bar Association - 7 -

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