Directors of public companies often take comfort in the knowledge that they will be protected for their business decisions if they have no personal interest in a transaction and make a decision on an informed basis, in good faith, and in the best interests of the corporation.[1] However, in situations commonly facing boards in this troubled market—including shareholder demands, the appointment of special committees, and shareholder challenges to corporate transactions—the business judgment rule requires more. This Commentary discusses the nature and operation of the business judgment rule in each of those circumstances. Ultimately, the most important step is to ensure that a majority of the board or committee members making the decision are independent, disinterested, and actively involved in the process.[2] For this reason, while a director should always exercise due care and loyalty when making a business decision, the director also must look to whether the majority of his or her fellow directors are independent and disinterested as well, to ensure the full protection afforded by the business judgment rule.

Shareholder Demands and Derivative Claims

In a shareholder derivative lawsuit, "the individual shareholder steps into the shoes of the corporation and usurps the board of directors' authority to decide whether to pursue the corporation's claims."[3] Before the shareholder may do so, however, most states—including Texas—impose standing and other requirements on the shareholder, including the requirement to serve a pre-suit demand on the corporation.[4]

A shareholder of a Texas corporation must make a demand in nearly every case. Under the Texas Business Organizations Code, which recodified Article 5.14 of the Texas Business Corporations Act,[5] a shareholder of a Texas corporation lacks standing to pursue a derivative action until 91 days after he or she serves a written demand on the corporation that states "with particularity the act, omission, or other matter that is the subject of the claim or challenge and requesting that the corporation take suitable action."[6] None of the limited exceptions to this "universal" demand requirement excuses demand simply because it would be futile.[7]

In contrast, Delaware law recognizes a "futility" exception and excuses demand if the shareholder can allege particularized facts creating a reasonable doubt that the directors are disinterested and independent or that the challenged transaction "was otherwise the product of a valid business judgment."[8] Under Delaware law, the demand-futility analysis focuses squarely—if not entirely—on whether the directors of the corporation are sufficiently independent and disinterested to fairly consider the demand.[9] When fiduciary duty claims are brought, however, the directors enjoy certain procedural advantages. For example, the business judgment rule requires courts to presume that directors are informed and acting in good faith and in the best interests of the corporation. To overcome that presumption, the shareholder has a "heavy" burden to allege facts without the benefit of discovery demonstrating that directors are not independent and disinterested.[10] Further, Delaware imposes "stringent" pleading requirements of factual particularity that "differ substantially from permissive notice pleadings."[11]

Special Litigation Committees

Director independence and disinterestedness are also of paramount importance when a board appoints a committee to evaluate a shareholder's demand and determine whether pursuit of the claims is in the company's best interests.[12] Unlike the demand-futility context, however, the SLC (and not the shareholder) bears the burden of establishing its independence, and the shareholder is entitled to take discovery on the issue. As the Delaware Chancery Court recently explained in London v. Tyrrell:

Unlike the demand-excusal context, where the board is presumed to be independent, the SLC has the burden of establishing its own independence by a yardstick that must be "like Caesar's wife"—"above reproach." Moreover, unlike the presuit demand context, the SLC analysis contemplates not only a shift in the burden of persuasion but also the availability of discovery into various issues, including independence.[13]

The London case provides a sharp picture of these shifting burdens at work. The Chancery Court denied the SLC's motion to dismiss a derivative action because it found the existence of a material fact "as to the independence of both SLC members based on their relationships" to one of the defendants.[14] In particular, and applying the two-step analysis articulated in Zapata Corporation v. Maldonado,[15] the Chancery Court observed that the first director's wife was a cousin of a defendant. Emphasizing that the SLC had the burden to establish its independence, the court stated: "[A]ppointing an interested director's family member to an SLC will always position a corporation on the low ground" from which "the corporation must fight an uphill battle to demonstrate that, notwithstanding kinship, there is no material question as to the SLC member's objectivity."[16] While the court at this stage of the proceedings could not "say unequivocally that [the SLC member's] independence is impaired," it also could not say "with certainty that [the SLC member] would not have considered the potentially awkward situation of showing up to [the defendant's] annual party after the family rumor mill had spread the word that [the SLC member] had recommended that a lawsuit should proceed against the host."[17] The court questioned the independence of a second SLC member because he had hired the defendant to work at another company and eventually promoted him to CFO. The SLC member testified that he had "great respect" for the defendant and that the defendant was "very helpful in helping [him] get a good price for" the company when it was sold.[18]

Mergers and Acquisitions

Director independence and disinterestedness can also be critical in merger and acquisition ("M&A") contests. While the business judgment rule generally protects ordinary business decisions made by corporate officers and directors, courts often apply different standards to M&A transactions. Under Delaware law, which governs or influences many M&A disputes, there are at least three different standards used to evaluate board conduct. Under each standard, the involvement of independent and disinterested directors can be a decisive factor.

Business Judgment Rule Standard. When a board of directors approves a transaction that does not involve a sale of control, or decides to remain independent by rejecting a proposed sale of control, the decision is generally reviewed under the business judgment rule presumption.[19] While directors can still be held liable for gross negligence in these cases, their decisions are generally protected by the business judgment rule.[20] Absent allegations that directors lack independence or have some personal financial interest in the transaction, these cases usually focus on whether directors were independent and adequately informed before making the decision.[21] For example, in Paramount Communications, Inc. v. Time Inc.,[22] the Delaware Supreme Court applied the business judgment rule to a stock-for-stock merger that was not deemed a sale of control transaction and commented extensively on the active participation of the board's 12 independent directors in considering and evaluating the transaction.

Enhanced Scrutiny. If a board adopts defensive measures in response to a potential M&A transaction or agrees to enter into a sale of control transaction, courts will apply enhanced scrutiny to the transaction "[b]ecause of the omnipresent specter that a board may be acting primarily in its own interests, rather than those of the corporation and its shareholders."[23] When defensive measures such as a "poison pill" plan are adopted, the burden shifts to directors to prove that (a) they had reasonable grounds to believe there was a danger to corporate policy and effectiveness, and (b) their action was within the range of reasonable responses to the threat perceived.[24] When a board decides to enter into a sale of control transaction, particularly when it includes a "no shop" clause, a "breakup" fee, or a "lockup" option, the burden shifts to the directors to show that they obtained the best value reasonably available for shareholders under the circumstances.[25]

When a court applies enhanced scrutiny to a transaction involving defensive measures, the board can materially enhance its proof if the board comprised a majority of outside independent directors who acted in good faith after a reasonable investigation. Likewise, in a sale of control transaction, "the role of outside, independent directors becomes particularly important because of the magnitude of a sale of control transaction and the possibility, in certain cases, that management may not necessarily be impartial."[26] For this reason, companies often form special committees of independent, disinterested, nonmanagement directors to negotiate the terms of M&A transactions.

Entire Fairness. If a board approves a transaction where management or a controlling shareholder has a financial interest (such as a going-private transaction, an acquisition of an entity controlled by a director, or any transaction with a majority or controlling shareholder), courts will examine the entire fairness of the transaction. The entire-fairness standard encompasses both fair dealing (i.e., how the transaction was timed, initiated, structured, negotiated, disclosed to the directors, and approved) and fair price (i.e., economic and financial considerations).[27] In these cases, the board has the burden of proof, but it can be shifted to the plaintiff if the transaction was negotiated by a special committee of active, informed, independent, and disinterested directors with real bargaining power, including the ability to say no to the transaction.[28]

Under each of the three standards applicable to M&A transactions, a court will carefully examine the process followed by the board or special committee in negotiating or approving the deal. The court will evaluate the independence, disinterestedness, and active involvement of individual directors in the factual context of the M&A transaction, including, among other things, the nature and quality of advice received from investment bankers and other advisors; the extent of the deliberative process; the alternatives considered, including rejection of coercive proposals; and deal-protection measures adopted to encourage or discourage potential suitors. Given the range of Delaware opinions addressing these issues, a board would be well advised to confer with qualified counsel before negotiating any major M&A transaction, particularly those that might result in court review under the enhanced-scrutiny or entire-fairness standard.

Conclusion

In each of the three situations discussed in this Commentary—a shareholder demand, the appointment of a special committee, and a shareholder challenge to a corporate transaction—it is imperative that the directors charged with making the decision on the company's behalf not only exercise due care and loyalty to the corporation but also ensure that the majority of their fellow directors are independent, disinterested, and actively involved in the process. By so doing, they will greatly enhance the chance that their business decisions are protected and not second-guessed by a court. Involving independent and disinterested directors may lead to better decisions and better corporate governance as well.