The Independent Board as Shield

94 Pages Posted: 17 Sep 2019 Last revised: 18 Jan 2021

See all articles by Gregory H. Shill

Gregory H. Shill

University of Iowa College of Law; University of Iowa College of Engineering, National Advanced Driving Simulator

Date Written: February 15, 2020

Abstract

The fiduciary duty of loyalty bars CEOs and other executives from managing companies for personal gain. In the modern public corporation, this restriction is reinforced by a pair of institutions: the independent board of directors and the business judgment rule. In isolation, each structure arguably promotes manager fidelity to shareholder interests—but together, they enable manager prioritization. This marks a particularly striking turn for the independent board. Its origin story and raison d’être lie in protecting shareholders from opportunism by managers, but it functions as a shield for managers instead.

Numerous defects in the design and practice of the independent board inhibit its ability to curb managerial excess. Nowhere is this more evident than in the context of transactions that enrich the CEO. When executive compensation and similar matters are approved by independent directors, they take on a new quality: they become insulated by the business judgment rule. This rule is commonly justified as giving legal effect to the comparative advantage of businesspeople in their domain—in determining the price of a product, for example—and it immunizes such decisions from court challenge. But independent directors can opt to extend the rule’s protection beyond this narrow class of duty of care cases to domains that squarely implicate the duty of loyalty. The result is a shield for conflicts of interest that defeats the major objective of the independent board and important goals of corporate law more generally.

This Article proposes to eliminate the independent board’s paradoxical shield quality by ending business judgment protection for claims implicating the duty of loyalty. Judges would apply the familiar entire fairness standard instead. The clearest rationale for this reform comes from the logic of the rule itself: comparative advantage. Judges, not businesspeople, are best situated to adjudicate conflicts of interest. More broadly, the Article’s analysis suggests that the pro-shareholder reputation of the independent board is overstated and may have inadvertently fostered a sense of complacency around board power.

Keywords: board of directors, corporate law, corporate governance, business judgment rule, agency costs, M&A, executive compensation, mutual funds, insider, manager, cleansing, conflict of interest, fiduciary duty, securities regulation, director primacy, shareholder litigation

JEL Classification: K22, K41

Suggested Citation

Shill, Gregory H., The Independent Board as Shield (February 15, 2020). 77 Washington and Lee Law Review 1811 (2020), U Iowa Legal Studies Research Paper No. 2019-26, Available at SSRN: https://ssrn.com/abstract=3454619 or http://dx.doi.org/10.2139/ssrn.3454619

Gregory H. Shill (Contact Author)

University of Iowa College of Law ( email )

Boyd Law Building
Iowa City, IA 52242
United States

University of Iowa College of Engineering, National Advanced Driving Simulator

2401 Oakdale Blvd.
Iowa City, IA 52242
United States

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