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Business
Judgment Rule: Defense for the Directors in Cases of Alleged Breach of Duties
*Priya Kumari
**Rishi
Kumar
Abstract
In
this article researchers will explain about Business Judgment Rule and how it
can be used as a defence by the directors’ of the corporation. In simple
language it can be said that the “Business judgment rule” is nothing but a
judicially evolved doctrine derived out of case laws in the field of corporate
laws. This doctrine has its origin in USA followed by U.K. The rule is in use
in some form or the other in the common law countries e.g. whales, Australia,
Canada, India &c. Australia has codified this rule under sec.1180(2)
Corporations Act 2001, in South Africa Companies Act 71 of 200 section 76(4) provides
for director’s duty to work towards best interest of the business with due
care, skill and diligence, in India section 166(2) of Companies Act, 2013
requires that for the benefit of different constituencies of a company a
director must act bona fide to promote the object of the company. The Business
Judgment Rule tries to protect the directors of the company by creating a safe
harbour for those who works for the betterment and interest of the corporations
in an honest manner and in good faith. The scope of the paper is restricted to
mainly US decisions, which has seen the greatest development in interpreting
cases, though certain important landmarks in the Indian and UK context have
also been referred to. The paper is limited by secondary sources such as books,
articles and reports available on the subject.
Key Words: Business
Judgment Rule, Directors, Duties of director, Companies Act, Duty of care and
skill, Duty of loyalty, Defences for breach of duty by director, standard of
conduct, Takeover defences.
Meaning:
Business judgment rule
is a misnomer as it does not have any compulsory content neither it is
codified. It does not lay down any do’s or don’ts for the directors of the
corporations, decided in American Society for Testing Material v.
Corrpro Companies Inc.[1] It
calls for less interference by the courts as under this rule courts presume
that the directors of who deal with the affairs of the corporation and take
decisions with respect to management, takeovers, merger, acquisition etc. will
do it in a bona fide manner and in the interest of the company.
Under this rule one can
challenge actions of the board of directors but again due to above mentioned
presumption the burden of proof lies on the Plaintiff held in Cinerama,
Inc. v. Technicolor [2] to
give evidences showing that the directors of the company breached any of their
fiduciary duty which they owed towards the corporation like duty of care,
loyalty, good faith, on an informed basis and if they fail to do so the rule
protects the directors and their decisions.
Hindsight
v Foresight
“The hindsight of judges is not sufficient
for judging the foresight of directors.”
The
business judgment rule is deep-rooted in history for more than 100-year in
where courts usually avoid replacing the decision of the board with judgment of
court.[3] In Re
Walt Disney Co. Derivative Litigation.[4],
court said that the spirit of this rule is that courts will not apply 20/20
hindsight to prognosticate the director’s decision except in atypical cases
where transaction cannot seems to be so erroneous on its face that directors
approval fails the test of business judgment rule, because as held in Dodge v. Ford Motor Co. - “nothing is as
easy as to be wise after the event.”[5] The simple question to be asked is whether
judges can perform directors’ function efficiently? Can they take future
business decisions without knowing the exact outcome? For deciding whether the
path taken was reasonable or not after the happening of an even is not a
difficult task but to foresee the outcome prior to that is.[6]
For directors who fulfills the conditions of the rule are not liable to the
stockholders for decision that turns out to be bad even if that decision turn
out to be bad in hindsight.[7]
Reason being that simple negligence alone is not sufficient for holding an
officer or director personally liable to the corporation.
In the words of Franklin Gevurtz:[8]
‘In black letter, the
‘business judgment’ rule sustains corporate transactions and immunizes management
from liability where the transaction is within the powers of the corporation (intra-vires)
and the authority of management, and involves the exercise of due care and
compliance with applicable fiduciary duties.’
Fiduciary
duties:
In
City equitable Fire Insurance Co. as
per Romer J.[9]-
Fiduciary duties means duty to act as trustees, but to expound directors as
trustees does not hold to be strictly perfect nor unfailingly helpful today in
the present scenario calling directors’ as the trustees of the company or its
property would be a misnomer instead they can be said to be the agents of the
company. By referring them as an agent they stand in fiduciary relationship to
the company. The duties of care and good faith which this relationship puts are
virtually similar to those imposed on trustees, and to this extent the
explanation “trustee” still holds well. Therefore directors acting as trustees
are required to carry out the affairs with a view to promote common interest of
the stakeholders and not their own interest. By virtue of acquiring office they
undertake to give their judgment in the best interest of the company,
unfettered by any inimical interest of their own.’
In
Permanent
Building Society (in liq) v. Wheeler [10]
decided that fiduciary powers and duties of director may be exercised only for
the purpose for which they were conferred and not for any other subordinate or
improper purpose. It must be shown that the major purpose was improper or
subordinate to their duties as directors of the company. The Court shall determine
whether but for any the dishonest, corrupt or subordinate purpose the directors
would have indulged in the act impugned.
Lastly,
we can see from catena cases that if put in application, the business judgment
rule forbids a judicial review of a board's decision, regardless of the
accuracy or the brilliance of a decision. The rule of presumption notably not
only does it safeguard risk involving decisions, but as courts and professors
radiantly tell us it also guards against imprudent, horrendous, and egregious
decisions,[11]whereas
tort law would never allow the fool person defence.
duty of care and skill
The
directors of the corporation are having fiduciary duties towards the
corporation namely duty of care, duty of loyalty and duty to carry out their
work lawfully. Of which duty of care concerns us the most with respect to
business judgment rule. Putting it simply we can say that directors while
managing the functions of the corporation are required to act as a prudent man
will do in ordinary circumstances and the same to be in the best interest of
the company.
Actions
of the directors are guarded by business judgment rule and presumption is that
any decision taken by them would not go against the interest of the corporation
unless such decisions are a complete sham or waste. Under this rule decisions
which are so one sided that a prudent man would not consider the same say for
example agreeing for low bid during takeovers, paying more for acquiring
assets, going wrong while deciding for mergers etc. He is under a moral duty to act carefully
because his actions might result in injury to others thus it involves
substantial risk. Say for example a doctor owes a duty of care towards his
patient while operating him.
The duties imposed on
the directors can be identified in following ways
·
Duty
to conduct business of the corporation and monitor the same in an informed
manner.
·
Duty
to enquire into the information received by having regular follow ups.
·
Duty
to apply pr3udent decision making methodology.
Under duty of care
directors will not be responsible for any bad judgment but they would be
questioned if they fail to apply reasonable decision where required. The
definition of care as given in the case of Graham v. Allis-Chalmers Manufacturing Co.
is followed as a guiding rule for standard of care; care was defined as “gross
negligence”[12].
Two questions were discussed in this case firstly what amount of care is to be
applied by the director as required by law and secondly in case of supervision
of employees what degree of care is required by them. Answering the first
question court decided in Graham v. Allis-Chalmers Manufacturing Co.[13]that:
“amount of care which ordinarily careful and prudent men would use in similar
circumstances” they are not required to act as an expertise in that field would
do[14]. One thing to be pointed here is that duty of
care may not be the same in all circumstances and degree of care may vary
depending upon the case and situation. In another leading case of Case
v. New York Central Railroad Co., the court lowered the standard of
duty of care based on the fact that a majority-minority relation had appeared.[15]
Whereas in the case of Treadway Companies Inc. v. Care Corporation[16],
the majority acknowledged the lack of correspondence in case law and held that
directors’ proper and good faith conduct insulate them from liability.
Duty
of Loyalty:
Amongst fiduciary
duties of the directors next comes duty of loyalty it demands director to be
fully loyal to the corporation in all times. It also requires them to avoid
decisions having possible conflicting interest, by doing this they stop them
from indulging in any self-dealing or taking advantage of position to have
personal gain. In the case of NorlinCorp. v. Rooney Pace Inc.[17],
it was held that the main underlying purpose of the duty of loyalty is to
prevent the directors to act in their own interest; to prohibit self-dealing
that inheres in the fiduciary relationship. With duty of loyalty come many
other responsibilities upon the director. They are required to keep any
information received in their official capacity as confidential and therefore
obligated not to disclose the same. Under business judgment rule a mere claim
that the director is self-interested without any further evidence does not
nullify the business judgment rule presumption.[18]
The Delaware Supreme Court stated in the case of Cede that a careful director
shall exercise his or her duty of loyalty in order to protect the interest of
the corporation, as well as, refrain from causing injury to the corporation
through depriving it from its profit, advantage or enable it to make reasonable
and lawful exercise of its powers.[19]
The Duty of Care and the Business
Judgment Rule: Anallysis
“The Duty
of Care and the Business Judgment Rule are Bound Together in an Enigma.”[20]
The director’s duty of
care is frequently kept parallel with duty of care in tort law.[21]At
the point when company law expresses that an executive should go about as a
"normally cautious and judicious" individual as held in Graham
v. Allis-Chalmers Mfg. Co.[22],
and breach of ‘duty of care’ is characterized as “gross negligence.”[23]
Under a right account of the tort homology, the duty of care and the business
judgment rule are not anti-poles of a
mystery, but rather are corresponding standards overseeing obligation and its
addendum.
Two principles play
major role here. First under the tort precept of industry traditions, the
extent of a director's duty of care mirrors the inferred ‘standard of care’
that would be embraced by business members. A tort based suggestion is reliable
with the predominant offer-acceptance hypothesis of corporate law, and it
demonstrates that the carelessness standard would not make a difference to the
substance of business choices. Second, theories of immaculate lucrative
misfortune give the establishment standards to decide and suggest that duty of
care on part of directors’ does not envelop carelessly delivered business
misfortune.
The classic case of Smith
v Van Gorkom[24]
court holding the director’s liable decided that the most apt criteria of
review was “gross negligence” and for the first time stated that there was
breach of duty of care with reference to the business judgment rule thus
Delaware Supreme Court held that board’s met this standard. Many years later
Delaware Apex court again ruled that directors are liable for breach of duty of
care on their part in Cede & co. v. Technicolor’s, Inc.[25]
case was almost similar to that of Van Gorkam (supra). In chancery
court, Chancellor William Allen, pronounced "grave doubts" that the
directors’ fulfilled the Gorkam (supra)
standard.[26]
In both the above
mentioned cases the BJR did not safeguard the board because of the finding of
breach of duty on their part. In Delaware, the duty of care is restricted by
substantive-procedural tussle which was expressed in Brehem v. Eisner[27]:
‘As for the plaintiffs'
contention that the board flunk to exercise "substantive due care,"
we should note that such a notion is alien to the business judgment rule.
Courts do not assess, contemplate or quantify directors' actions. We do not
even determine if they are fair-minded in this context. Due care in reference
to the decision making is that process is adopted with due care only.’
A new concept of
business judgment was articulated in Arson v. Lewis [28]
which says that rule is nothing but a presumption that while making business
decisions the board acted on an informed basis, bonafide in honest belief that
the decision so taken was in the best interest of the company.[29]
Kamin v. American Express Co.[30]
is a notable instance of business judgment rule at work. In this case American
bank bought stake in an investment bank, but later its value declined and board
decided to divest the same. Board had two options either to sell the stake or
to distribute it by way of special in-kind dividends to the shareholders. By
going with the first option they would have incurred $25 million loss on
turnover which would result in tax saving of approximately $8 million. And
distribution of dividends would have saved loss but would have forfeited tax
advantage. The board after evaluation and going through both the options made a
wrong decision and issued special dividends. Board believed that a reduction in
income would lower the share price. The directors wanted to take $8million cash
on the table or no cash at all.
Prima facie the
decision taken was wrong was clear still court dismissed plaintiff’s appeal by
applying doctrine of business judgment rule. As board was reasonably informed
and went through proper process with due care and skill. Held that: board’s
mistake "presents no basis for the superimposition of judicial judgment,
so long as it appears that the directors have been acting in good faith."[31]
Therefore business
judgment rule can be substantiated on several policy grounds. First reasoning in favor of business
judgment rule is that courts are unskilled for reviewing business decisions.
Judges and experts have suggested that complication of business is not within
the intellectual reach of courts. By saying that it is beyond competence of
judges doesn’t mean that decision so taken by the board is correct. In Dodge
v. Ford Motor Co.[32]
court held that “the judges are not business experts.” In Auerbach v. Bennett[33],
court said that: ‘courts are essentially ill equipped with business matters and
therefore rarely called to judge what should be a reasonable business judgments.’
Thus courts practically are not well equipped to handle efficiently complex
business decision making.[34]
Also judges’ lack required competence to evaluate multiplex corporate decisions[35]
because they lack special knowledge with respect to working of corporations.
Still many decisions have been reviewed judicially in the past. And they
interfere only when plaintiff’s able to rebut the presumption of business judgment
rule.
Second
reasoning in favour of business judgment rule relates to
‘standard of conduct’ versus ‘standard of review’ digress in corporate law.
Standard of conduct on part of directors require duty of care which is an
objective norm facilitating directors’ direction on how to manage the business
and take business related decisions effectively. While standard of review is
the legal rule with respect to business judgment rule which provides legal
standard to courts to assess legal responsibility of directors’. In other areas
of law for example law of tort, review by courts and standard of conduct both
relates to one standard that is for the purpose of judicial review. Whereas in
corporate law the above mentioned standards are said to digress because of
“institutional nature of corporation”[36]
directors usually try foreseeing the tentative outcome of their decision. They
proceed on incomplete data and information and on the basis of required
rationality. Keeping the standard of review by the courts and standard of care
required by the directors’ at par would result in great bias. For the judges
deciding on matters which already took place given what is the outcome foresee
ability is not needed because all the information relating to such decision are
available which makes their task easy. Thus dichotomy of these two standards
shows that directors’ duty is a fiduciary one and not legal duty which is
backed by force of law. And therefore minimizes courts role and tries to
explain academically the concept of divergence between role of directors’ and
that of courts in corporate law.
Defenses for Breach of Duties:
There are mainly three
kinds of defences that a director can utilize in case of an alleged breach of
duty. They are stated below:
Ø The business judgment rule
Ø Reliance on others
Ø Use of a delegated power
Of
all the three we are concerned here with the business judgment rule. In case of
an alleged breach of duty by a director the doctrine of business judgment rule
can be taken as defense by the directors but given that it is an un-codified
law its effectiveness continues to be skeptic and a matter of debate. No
director can take the defense of Business Judgment Rule completely to avoid
liability for breach of duty of due care and skill. The scope of this rule is
very narrow as it is applicable on ‘business judgments’ only.
Takeover
Defenses:
Hostile takeovers are
not very common in India. Advanced takeover defenses are majorly found in
United States. The doctrine of Business Judgment Rule in USA has evolved from
case laws having different sates having their different laws with respect to
Business Judgment Rule. Delaware corporate law being the most developed one in
this field.[37]
In the case of Aronson
v. Lewis[38]
held: the business judgment rule presumes that while making business decisions
directors of a company acted on an informed basis, in honest belief and in good
faith and action taken by them was in the best interest of the company.
In Smith v. Van Gorkom[39]
in a case of cash out merger a group action was brought by shareholders. CEO
after meeting a takeover specialist decided for cash out merger after having
discussion with the specialist, without doing any adequate valuation of the
proposal. And called a special meeting and persuaded directors to approve the
same and place it for voting before the shareholders. Question framed by the
CEO at the meeting was not as to whether price decided is the highest
obtainable one, but that: whether price arrived at is fair one and the same
should be placed before the shareholders for accepting or rejecting it. The
Board of Directors after going through a presentation and without having any
documents regarding the proposal decided to put forward the same for
shareholder vote.
Held: the board of directors were grossly negligent
while accepting the proposal and acted without due care and in an uninformed
manner while agreeing to the merger proposal. Directors are required to go
through the proposal before placing the same before the shareholders. Board
cannot abdicate their duty by putting it before the shareholders.
In Van Gorkom case court observed that even if there
was substantial premium in the merger proposal price merger but other sound
factors were not present and in their absence for evaluation mere fact of high
price alone cannot be considered as the deciding factor for accessing the
fairness of the proposal. Therefore just because a company is doing well does
not mean that it cannot do any better.
Conclusion:
The
aim of the business judgment rule in overpowering a risk involved corporate
scenario is in part summarized by several former Vice-Chancellors of the
Delaware Court of Chancery who write:
‘If
law-trained judges are permitted to make after-the-fact judgments that business
persons have made “unreasonable” or “negligent” business decisions for which
they must respond in monetary damages, directors may, in the future avoid
committing their companies to potentially valuable corporate opportunities that
have some risk of failure. Highly qualified directors may also avoid service if
they face liability risks that are disproportionate to the benefits of
service.’[40]
At present the scope of this rule as
judicially interpreted is that Board of directors of a corporation
in managing the corporate affairs are bound to use that amount of care which,
ordinarily, careful and prudent men would use in similar circumstances. A
director must have such degree of skill that “may
reasonably be expected from a person undertaking those duties” – as held in Norman
v. Theodore Goddard.[41]
Referring to the case above it was held in a subsequent case that “courts may not in
future be prepared to accept minimalistic standard of competence said to be
tolerated by law” and that, courts may “Impose an increasing objectivity in determining
whether directors have acted reasonably”.
In the end we need to ask one question
whether this rule is working in real sense or not? No doubt judicial review of
corporate decision is done with the help of hindsight of judges whereas
directors when taking any business decisions foresee the result and evaluate
the options and choose one which will yield maximum benefit to the corporation
and its stakeholders. The decision might not turn out to be favorable in all
the circumstances and once failed should not be taken as ground for holding the
board personally liable as it is not possible for them to foresee the exact
outcome and to review their decision would be unfavorable with approval of
hindsight. But again other aspect to this is how far is it fair to give such
substantial protection to the board of directors while duties they owe towards
company as a fiduciary is getting casual. Say for example judicial reviewing of
actions which are evident business wrong or instances where director would be
able to understand that decision will be detrimental for the company in such situations
protection under the will turn out to be against the interest of corporation
and there courts need to step in and take strict actions and should not follow
the presumption rule given the change in business era it will be desirable to
have some altercations in the rule if not for stakeholders as a whole then at
least from the perspective of shareholders.
References:
1.
Robert R Pennington, Company Law (7th ed.
Butterworths) (London, Dublin and Edinburgh) (1995)
2.
Paul L.Davies & Sarah Worthington; Gower & Davies’
Principles of Modern Company Law (9th ed., Sweet and Maxwell) (2012)
3.
David Kershaw,
Company Law in Context (Oxford) [2009]: The author in his book very
elaborately discussed the U.K. Companies’ Act of 2006 with the various case
laws explained in a detailed manner regarding the duties of directors and their
duty to act with due care and skill.
4.
Clive M. Schmitthoff & James H. Thompson,, eds. Palmer’s
Company Law (21st ed. Stevens & Sons Limited) (1968): In the
book, Companies’ Act of 1967 has been described and Part VI, Chapter fifty
seven of the book discusses in detail the duties of the directors with the help
of various cases where any secret obtained by director by reason of his
position or in the course of companies’ business is breach of his
responsibility or not has been discussed.
5.
Len Sealy & Sarah Worthington, Cases and Materials in
Company Law (8th ed. Oxford) (2008).
6.
Julian Velasco, Defence of the
Corporate Law of Duty of Care, 40 J. Corp. L, 647, 2015 accessed on 18th
July’17: http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2134&context=law_faculty_scholarship
7.
Bratton. W. W. Berle and Means ,Reconsidered
at the Century Turn, 26 J. Corp. L. 737
(2001). Accessed on 21st july’17: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1049&context=facpub
8.
Robert J. Rhee, The Tort foundation of
duty of care and business Judgment rule, UF . L. Fac. Publication, 2013. 21st
July’17: http://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1491&context=facultypub
9.
Allen W. T, The Corporate
Director’s Fiduciary- Duty of Care and The Business Judgment Rule, In
Comparative Corporate Governance, (Hopt, K. J., et al. eds.) Oxford University
Press, Oxford 1998, 307-331. Accessed on 21st July’17.
10.
Bernard.S.Sharfman, The
Importance of Business Judgment Rule: December 12, 2016. Accessed on: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2888052.
11.
Hiler. B. A. Raphaelson, I. H,
Baird, E. H’ Criminalizing Business Judgment Could Stagnate U.S. Economy, Legal
Backgrounder (Legal Found., Washington, D.C.), June 7, 2002.: https://gupea.ub.gu.se/bitstream/2077/10183/1/Viktor_Dahlberg.pdf
12.
Griffith, S. J, Good Faith
Business Judgment-A Theory of Rhetoric in Corporate Law Jurisprudence 55 Duke
L.J. 1 (2005): http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1265&context=dlj
13.
Bainbridge. S. M., “The
Business Judgment Rule as Abstention Doctrine” 57 Vand. L. Rev. 83 (2004): http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2726&context=facpubs
14.
Darian M. Ibrahim, Individual
or Collective Liability for Corporate Directors, William & Marry Law school
fac.publ,2008: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2726&context=facpubs
***************************
* Research Scholar: University
of Delhi, (India).
** Research Scholar: University of Delhi (India).
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[2],
663 A.2d at 1162 (Del. 1995).
[3]
170 N.W. 668 (Mich. 1919).
[4]
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[5] Baruch
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[6] Reid hastie
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[7] Louisiana World Exposition v Federal
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[9] Re [1925] Ch. 407 at
426
[10] (1994) 14 ACSR 109
at 137
[11] In re Caremark Int'l
Inc. Derivative Litigation., 698 A.2d 959, 967 (Del. Ch. 1996).
[12] As opposed to simply
negligence, gross negligence is considered a voluntary disregard of the need to
use reasonable care.
[13] 78, 188 A.2d 125
(Del.Supr. 1963) at 130.
[14] Walter, p 654 note
31.
[15] Walter p. 657
[16] 638 F.2d 357 at 382
[17] 744 F.2d 255, 255
(2nd Cir. 1984). at 255, 264.
[18] Cede at 634.
[19] Cede at 361
[20] William T. Allen et
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[21] Marcel Kahan &
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REV. 1293, 1327 (2011)
[22] 188 A.2d 125, 130
(Del. 1963).
[23] 488 A.2d 858, 873
(Del. 1985).
[24] 488 A.2d 858, 873
(Del. 1985).
[25] 634 A.2d 345 (Del.
1993).
[26] 17 Del.J. Corp. L.
551, 560 (1992),
[27] 746 A.2d 244 (Del.
2000).
[28] 473 A.2d 805 (Del.
1984).
[29] Id. at 812.
[30] 383 N.Y.S.2d 807
(1976)
[31] Kamin, 383 N.Y.S.2d
at 812
[32] 170 N.W. 668, 684
(Mich. 1919)
[33] 393 N.E.2d 994, 1000
(N.Y. 1979)
[34] Dennis J. Block et
al., The Role of the Business Judgment Rule in Shareholder Litigation at the
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[35] RobertJ. Haft,
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[36] Melvin Aron
Eisenberg, The Divergence of Standards of Conduct and Standards of Review in
Corporate Law, 62 fordham law. rev. 437
(1993);
[37] E. Norman Veasey;
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takeover defences. Delaware Journal of Corporate Law WINTER, 1987
[38] 473 A2d at 812
[39] 488 A2.d 858; 46
A.L.R.4th 821[1]
[40] W Allen, J Jacobs
& L Strine, Realigning the Standard of Review of Director Due Care with
Delaware Public Policy: A Critique of Van Gorkom and its Progeny As a Standard
of Review Problem (2002) 96 Nw. U.L. Rev. 449
[41] (1991) BCLC 1028:
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