July 02, 2007
Conglomerate Junior Scholars Workshop: Trey Drury's What's the Cost of a Free Pass? A Call for the Reassessment of Statutes that Allow for the Elimination of Personal Liability for Directors
Posted by Christine Hurt

Welcome back to the Conglomerate Junior Scholars Workshop.  Today's paper is Trey Drury's What's the Cost of a Free Pass?  A Call for the Re-Assessment of Statutes that Allow for the Elimination of Personal Liability of Directors.  Trey is a Visiting Assistant Professor at Loyola Law School in New Orleans.  Trey was originally scheduled to participate in the first Junior Scholars Workshop two years ago with this paper, but plans were derailed by Hurricane Katrina.  We're glad that he's back in NOLA and has resumed his stint at Loyola.  Before entering law teaching, Trey practiced for eight years, including a stint in the general counsel's office of Entergy.

Our commentators today are also experts on this topic:  Joan Heminway, Lisa Fairfax, Elizabeth Nowicki and former workshop participant Matt Bodie.  I will post the comments of these experts below this post throughout the morning.  We invite readers to comment on the paper (and the comments) in the comments section of this post.  In the interest of running this workshop like a physical world conference, no anonymous commenters, please.

The abstract for the paper is here:

The 1985 Delaware Supreme Court decision in Smith v. Van Gorkom caused considerable unrest among members of corporate boards and their legal advisors. In that case, board members were held personally liable for a breach of their fiduciary duties, even though no conflict of interest existed. Many observers were taken aback by this result, and a public outcry followed. The consequences of this decision, particularly the perceived crisis in securing directors & officers liability insurance, spurred some legislatures into action. By 1986, Delaware had already enacted a statute enabling a corporation to limit or eliminate the personal liability of directors for breaches of their duty of care. Some version of this approach has now been implemented in all fifty states, and virtually all of the nation's largest corporations include these exculpatory provisions in their charters.

This Article argues that the time has come to re-examine these statutes, and that this re-examination points to a need to improve the status quo. Part I of this Article describes the Smith v. Van Gorkom holding, and the subsequent decision in Delaware to allow corporations to remove the prospect of personal liability for directors for duty of care breaches. Part II argues that these exculpatory statutes, in their current form, are doing harm to shareholders and to the orderly function of corporate law. First, this Part demonstrates that the existence and current use of the statute incentivizes board members to engage in sub-optimal behavior. Second, the Part questions the legitimacy of the original stated need for enacting the statute. Third, this Part claims that another area of corporate law, judicial interpretation of the duty of good faith, is being manipulated to circumvent the restrictions placed on courts by corporations that choose to eliminate liability for breaching the duty of care. Part III then introduces the contractarian theory of the firm in support of the current statute, examines the limitations of that theory, and explores the implications of the theory in determining the proper course of action. Finally, Part IV recommends actions available to dissatisfied shareholders, including a specific improvement in the mechanics of the statute – the addition of a requirement that shareholders must reapprove an exculpatory charter provision at least every five years.

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