Shareholder Activism Pushes Boundaries of Board Duties

Foley & Lardner LLP

Foley & Lardner LLP

Under the traditional model of corporate governance, boards of directors owe fiduciary duties to one group, and one group only — the company’s shareholders — to maximize the value of their shares. But, times are changing. In virtually every facet of the political, economic and business spectrum, shareholders are insisting that companies recognize and address a much broader range of stakeholders to benefit their shareholders’ long-term interests.

Most pointedly, we see many American companies taking stances on a variety of controversial cultural issues — think Nike Inc.’s “Dream Crazy” campaign, in association with football player Colin Kaepernick — in the name of brand building and, ultimately, shareholder value.

As this trend has accelerated, legislatures and courts have struggled to catch up. Indeed, the Delaware Supreme Court’s June decision in Marchand v. Barnhill may signal an eventual shift in the degree to which even Delaware, perhaps the staunchest bastion of the stockholder-first camp, will begin to recognize a widening array of stakeholder interests in the name of shareholder value.

History of Multiconstituency Statutes

Throughout the 1980s and 1990s, many states adopted multiconstituency statutes which allow, or even require, boards of directors to consider other interests, such as those of its employees or surrounding community, in addition to those of their companies' shareholders.[1] These statutes employ similar language, but vary slightly based on:[2]

  • The breadth of factors directors may consider (e.g., Wyoming allows for consideration of the state and nation’s economies);[3]
  • The applicable contexts in which nonshareholder interests may be considered (e.g., some states limit application to takeover contexts);[4]
  • The corporate fiduciaries protected by the statute (e.g., Colorado protects corporate officers);[5]
  • The specific nonshareholders that can be considered (e.g., New York provides for consideration of current as well as retired employees “and other beneficiaries receiving or entitled to receive retirement, welfare or similar benefits”);[6]
  • Opt-in requirements (e.g., Georgia requires that shareholders elect to include a constituency provision in their companies' articles of incorporation);[7] and
  • Enhanced protection of a board’s decision (e.g., Indiana has enacted such a statute).[8]

While most of the statutes allow consideration of nonshareholder constituencies, some statutes make such considerations mandatory.[9]

Delaware does not have a multiconstituency statute, and remains resolute in keeping directors’ fiduciary duties focused squarely on the maximization of shareholder value. Over the years, Delaware courts have reiterated their adherence to this directive: “When exercising their statutory responsibility, the standard of conduct requires that directors seek ‘to promote the value of the corporation for the benefit of its stockholders.’”[10]

In North American Catholic Educational Programming Inc. v. Gheewalla in 2007, the Delaware Supreme Court surveyed the landscape and again concluded, “Delaware courts have traditionally been reluctant to expand existing fiduciary duties” beyond that framework.[11]

That said, since the landmark Revlon Inc. v. MacAndrews & Forbes Holdings Inc. case in 1986,[12] the Delaware Supreme Court has left the door slightly ajar on this score. In Revlon, the court allowed consideration of other constituent interests, “provided there are rationally related benefits accruing to the stockholders.”[13] At the same time, the court has also made the limits of its approach clear: Particularly in the corporate acquisition context, “such concern for non-stockholder interests is inappropriate when an auction among active bidders is in progress, and the object no longer is to protect or maintain the corporate enterprise but to sell it to the highest bidder.”[14]

Shareholders Themselves Demand Attention to Multiconstituency Interests

In the wake of the enactment of multiconstituency statutes, shareholders themselves have dramatically amplified their calls for consideration of other stakeholder interests to maximize long-term shareholder value. More and more investors are championing environmental, social and governance, or ESG, concerns, which arguably require investment in sustainable business practices without a guarantee of short-term returns.

Numerous studies confirm this shift. For example, the number of signatories to the U.N. Principles for Responsible Investment, or PRI, — the largest global reporting project on responsible investment — grew 30% from 2017 to 2018, and the total assets under management of PRI signatories grew to almost $90 billion.[15] In 2018, 93% of millennials agreed that the ESG impact of a corporation is important to investment decisions.[16]

This movement can also be seen in the recent explosion of ESG-related shareholder proposals for consideration at annual shareholder meetings, and the support such proposals are garnering from institutional investors. According to data from Institutional Shareholder Services Inc., ESG-related proposals now make up a majority of all shareholder proposals submitted to U.S. companies.[17] And major institutional investors, such as The Vanguard Group Inc., BlackRock Inc. and State Street Global Advisors, are voting for such proposals in record numbers. The average mutual fund vote in favor of ESG proposals reached a record high of 24% in 2018, up from 15% a decade earlier.[18]

Not surprisingly, companies are becoming increasingly transparent about their sustainability initiatives. In 2017, 85% of the companies in the S&P 500 Index published sustainability or corporate responsibility reports, up from just under 20% in 2011.[19] Corporations like Starbucks Corp.,[20] Nike,[21] Lyft Inc.[22] and Chick-Fil-A Inc.[23] are openly taking positions on cultural and political issues, even though the long-term effect those positions will have on shareholders’ return on investment is not readily transparent.

Legislative and Judicial Focus on Multiple Constituencies in the Name of Long-Term Shareholder Value

State legislatures and the courts are taking their cues from the marked increase in shareholder activism in the ESG space. After the wave of multiconstituency legislation in the 1980s and 1990s, there has been a resurgence of states adopting new statutes in the last five years.

In 2017, Utah became the latest state to enact a multiconstituency statute providing for consideration of current and retired employees, customers, creditors and the community, as well as the long-term and short-term interests of both the corporation and its stockholders.[24] Other states to adopt recent multiconstituency legislation include Nebraska,[25] New Hampshire[26] and Louisiana.[27] Further still, states like Texas, which originally implemented a multiconstituency statute over a decade ago, are now expanding those statutes to include explicit language permitting consideration of social purposes specified in the corporation’s formation documents.[28]

This evolution is increasingly reflected in judicial decisions as well. Recently, in International Brotherhood of Electrical Workers Local No. 129 Benefit Fund v. Tucci in 2017, the Massachusetts Supreme Judicial Court interpreted the scope of Massachusetts law requiring directors to take actions that are “in the best interests of the corporation.”[29] In making that determination, boards are permitted to consider the interests of “the corporation’s employees, suppliers, creditors and customers, the economy of the state, the region and the nation, community and societal considerations, and the long-term and short-term interests of the corporation and its shareholders.”[30]

For companies incorporated under Delaware law, the question now is whether this sea change in investor sentiment will impact how closely the Delaware courts will construe long-term ESG investments to be rationally related to shareholder value. In the context of a sale of the entire enterprise, that relationship appears to continue to be narrowly constricted, presumably because there is little to no long-term horizon for the company.[31]

In other contexts, however, the yoke may be loosening. For example, the Delaware Supreme Court’s recent decision in Marchand v. Barnhill suggests the court may be recognizing the critical role that a company’s compliance programs may have on shareholder value.[32] There, the court has arguably made a shift toward curtailing the amount of deference provided to boards in exercising their supervisory power over such programs.

If corporate boards are now required to probe more deeply into management’s investment in the company’s compliance infrastructure — which rarely has an immediate positive impact on short-term shareholder returns — to satisfy the Marchand test, it does not require a huge stretch of logic to forecast that the courts will also broaden the degree to which they believe such investments may inure to the long-term benefit of corporate shareholders.

While Delaware’s judicial opinions continue to require a decided tether linking board decisions to shareholder value maximization, the latest push — culturally, statutorily and judicially — toward consideration of other stakeholder interests suggests that the door to considering such interests may be further ajar in Delaware and in other states than it has ever been in the past.

The authors thank Jane Morgan Scott, a former summer associate at the firm, for her contribution to this article.

[1] Ronald J. Colombo, LAW OF CORP. OFFS. & DIRS.: RTS., DUTIES & LIABS. § 22:2 (2018).

[2] Brent A. Olson, 2 PUBLICLY TRADED CORPORATIONS HANDBOOK § 18:6 (2019).

[3] WYO. STAT. ANN. § 17-16-830(g)(ii) (West 1977).

[4] See e.g., IOWA CODE ANN. § 490.1108A (2003).

[5] See Colo. Rev. Stat. § 7-108-401 (West 2019).

[6] N.Y. BUS. CORP. LAW § 717(b)(i)-(ii) (McKinney 1989).

[7] GA. CODE ANN., § 14-2-202(b)(5) (West 1999).

[8] IND. CODE § 23-1-35-1(e) (1989).

[9] See ARIZ. REV. STAT. ANN. § 10-2702 (1987) (“In discharging the duties of the position of director under this chapter, a director of an issuing public corporation, in considering the best interests of the corporation, shall consider the long-term as well as the short-term interests of the corporation and its shareholders including the possibility that these interests may be best served by the continued independence of the corporation.”); IDAHO CODE § 30-1602 (2019) (“In discharging the duties of the position of director of an issuing public corporation, a director, in considering the best interests of the corporation, shall consider the long-term as well as the short-term interests of the corporation and its shareholders including the possibility that these interests may be best served by the continued independence of the corporation.”).

[10] In re Trados Inc. S’holder Litig., 73 A.3d 17, 36-37 (Del. Ch. 2013) (citing eBay Domestic Holdings, Inc. v. Newmark, 16 A.3d 1, 34 (Del. Ch. 2010)).

[11] N. Am. Catholic Educ. Programming v. Gheewalla, 930 A.2d 92, 99 (Del. 2007).

[12] Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986).

[13] Id. at 182.

[14] Id.

[15] U.N. PRINCIPLES FOR RESPONSIBLE INVESTMENT, The PRI in Numbers 2018, (last visited July 23, 2019).

[16] Id.

[17] Subodh Mishra, An Overview of U.S. Shareholder Proposal Filings, INSTITUTIONAL SHAREHOLDER SERVICES, INC., (Feb. 28, 2018), (last visited July 23, 2019).

[18] Ryan Ermey, Shareholders Shake Things Up This Proxy Season, KIPLINGER, (Apr. 4, 2019), (last visited July 23, 2019).

[19] GOVERNANCE & ACCOUNTABILITY INSTITUTE, INC., Flash Report: 85% of S&P 500 Index Companies Publish Sustainability Reports in 2017, (last visited July 23, 2019).

[20] Josh Boak, Starbucks says it will hire 10,000 refugees over the next 5 years in response to Trump’s travel ban, ASSOC. PRESS, (Jan. 29, 2017), (last visited July 23, 2019).

[21] Michael Errigo, Rick Maese, and Mark Maske, Colin Kaepernick to star in Nike’s ‘Just Do It’ campaign, WASH. POST, Sept. 4, 2018, (last visited July 23, 2019).

[22] Mehak Anwar, Lyft Will Donate $200K To Immigration Rights, So Go Ahead & Feel Good About Calling That Car, ELITE DAILY, (July 1, 2019), (last visited July 23, 2019); see also (last visited July 23, 2019).

[23] Stephanie Condon, Chick-fil-A’s political grilling, CBS NEWS, (July 27, 2012), (last visited July 23, 2019).

[24] UTAH CODE ANN. § 16-10a-840(5)(b) (West 2017).

[25] NEB. REV. STAT. § 21-2,102 (2014).

[26] N.H. REV. STAT. ANN. § 293-A:8.30 (2013).

[27] LA. STAT. ANN. 12:1-830 (2014).

[28] TEX. BUS. ORGS. CODE ANN. § 21.401 (West 2013).

[29] MASS. GEN. LAW. ANN. ch. 156D § 8.30(a)(3) (West 2004).

[30] Id.

[31] Chester Cty. Emps.’ Ret. Fund v. KCG Holdings Inc. et al. , No. 2017-0421, 2019 WL 2564093 (Del. Ch. June 21, 2019) (in a sale of control under Revlon, the board must remain focused on stockholder value, and any compensation arrangements entered into with management in connection with a sale of control must be viewed within the framework of how such arrangements benefit stockholders); In re PLX Tech. Inc. S’holder Litig., No. 9880-VCL, 2018 WL 5018535 (Del. Ch. Oct. 16, 2018) (applying Revlon standard and finding that directors breached their fiduciary duties by succumbing to pressure to effect a quick sale of the company).

[32] Marchand v. Barnhill, No. 533, 2018, 2019 WL 2509617, at *13 (Del. June 18, 2019).

This article orignally appeared on Law360, and is republished here with permission.

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