For those of you who’ve heard me sing, rest easy – I’m not going to break into “As Time Goes By.” But the lyric I’ve quoted in the title is worth noting. In fact, it was noted, albeit in substance rather than form, in the June 18 opinion of the Delaware Supreme Court in Marchand v. Barnhill. The opinion, written by soon-to-retire Chief Justice Leo Strine (more on that below) addressed two fundamental matters – director independence and the board’s oversight responsibilities.
The case resulted from a listeria outbreak caused by contaminated ice cream. (The thought of contaminated ice cream is too upsetting, but that’s for another day.) The key holdings referred to above were as follows:
- Director Independence: The trial court had dismissed the complaint for failing to make a pre-suit demand on the board, based on its conclusion that the a majority of the board – albeit the slimmest majority of one director – was independent. However, when the Supreme Court considered the background of that one director, it determined that he was not independent. Thus, the slim majority went away. The relevant facts included that the director had worked for the company in question for 28 years, including as its CFO and a director, and that the company’s founding family had helped to raise more than $450,000 for a local college that named a building after the director. The fact that the director had supported a proposal that the founding family opposed – i.e., separating the chair and CEO positions – was deemed by the Supreme Court to be insufficient to support a finding of independence.
- Board Oversight: The Delaware Supreme Court found that the board had breached its fiduciary duty of loyalty by failing to oversee a significant risk – product contamination – leading to the conclusion that the board had demonstrated bad faith. As is usually the case, Chief Justice Strine says it better than I possibly could. Citing the landmark 1996 Caremark decision, he writes:
“Where was the board?” It’s a question we hear whenever something – anything – goes wrong at a public company. The question has been asked in all sorts of circumstances, ranging from failing jet systems, to networks being hacked, to harassment allegations, and so on.
Four years ago, I commented on the then-recent announcement that Jamie Dimon, Chairman and CEO of JP Morgan Chase, was battling cancer. At the time, Dimon noted that he had struggled with whether the company should disclose his illness.
There probably aren’t too many subjects nerdier than corporate minutes. Lawyers (among others) tend to focus on exciting (dare I say sexy?) matters like M&A, activism, and bet-the-company litigation. Those and other topics are surely exciting, but failing to pay attention to minutes can cost big time. Like it or not, minutes are among the few pieces of evidence – sometimes the only evidence – that boards and committees have properly executed their fiduciary duties. Did the board give a matter due consideration? Did the directors ask the right questions? Any questions? Did they consider the risks as well as the benefits of an action or of inaction? If these and other questions are not answered by reading the minutes, they may not be answerable at all.
As our readers know, I am irritated by Congress’s penchant for naming bills so as to create nifty acronyms. And for including provisions that have nothing to do with the name or the acronym. However, I can better put up with these irritants when the legislation – and SEC regulations implementing the legislation – create a good result.
As securities lawyers know, disclosure is generally regarded as the best disinfectant. However, in 
In case you think that corporate minutes and other corporate formalities are for sissies, think again. 
Each January, I depart from my admittedly nerdy focus on SEC and governance matters to communicate with you on one of my other admittedly nerdy pursuits – reading – by providing a list of my 10 favorite books of the prior year, five works of fiction and five of non-fiction. As always, the list is comprised of books I read during the year gone by, rather than books published during the year.
Lest you think that the SEC’s focus on the use of non-GAAP financial metrics is so, well, 2018, think again. On December 26, the SEC issued a 
As we approach the end of 2018, it’s only natural to look back on some of the year’s events – and some non-events. For my money, one of the most significant non-events was the inauguration of CEO pay ratio disclosure, one of the evil spawn of Dodd-Frank.