Pour une gouvernance créatrice de valeurs®

As COVID-19 related restrictions begin to ease, boards and management face unique decisions as to how to return to a new normal amid evolving legal requirements, health guidelines and divergent stakeholder concerns and expectations. A focus on business judgment will assist corporate leaders in making these tough decisions and finding a path to the other side of the pandemic. The COVID-19 pandemic has forced boards and management teams to face unprecedented challenges and make quick decisions in order to guide their companies through uncharted waters. Canadian corporate law provides a well-worn framework for decision making and directors and officers should continue to bear in mind their fundamental duties as outlined in the various Canadian corporate statutes.

COVID-19 has had and will continue to have impacts on virtually every corporation in Canada and globally. Such a disrupting chain of events, combined with freshly enacted changes to corporate legislation for federally incorporated corporations, may raise questions on the scope of directors’ fiduciary duty. If the recent legislative amendments have provided certain clarifications on a director’s fiduciary duty towards the corporation, they have had limited opportunities to be tested. The public health crisis may set the stage for such a test. As discussed below, in discharging their fiduciary duty, directors will need to consider different factors. To benefit from the protection of the business judgement rule doctrine, directors should formulate and follow a sound protocol. Under the Canada Business Corporations Act (the CBCA), directors of a corporation have a “fiduciary duty” towards the corporation according to which they must “act honestly and in good faith with a view to the best interests of the corporation.” [1] In cases of alleged breach of such duty, courts apply the “business judgement rule,” which commands great deference to directors, to the extent directors followed a reasonable process in decision-making.

As noted in our earlier alert concerning securities fraud litigation under Section 10(b) of the Securities Exchange Act, the spread of COVID-19 and its effect on the global economy have caused extreme market volatility and, beginning in mid-February, the largest decline in stock prices since the 2008 financial crisis. Market volatility has historically precipitated increased securities litigation and might be expected to have an outsized impact on claims under the Securities Act, given rescissory damages and the absence of a requirement that plaintiffs plead and prove loss causation. [...] The following analysis of offerings during late 2019 and early 2020, immediately prior to and during the COVID-19-induced market volatility, and the Securities Act complaints filed against some of those issuers amid the market unrest provide preliminary insights into whether, when and on what basis recent issuers—and their underwriters and auditors—are facing Securities Act litigation.

Two recent developments in civil and criminal law highlight the importance of active, engaged board oversight in the areas of risk and compliance. The first is a Delaware Supreme Court decision allowing plaintiffs to proceed with a Caremark claim, and the second is a memorandum released by the Criminal Division of the U.S. Department of Justice noting the role of the board in ensuring that compliance programs are implemented effectively. While the Delaware case sends a warning message to directors, the DOJ memorandum provides guidance for directors as they work to fulfill their oversight responsibilities.

Corwin v. KKR is considered one of the most important corporate law decisions of this century. Corwin shields directors from the enhanced scrutiny of Revlon in favor of the business judgment rule whenever a transaction “is approved by a fully informed, uncoerced vote of the disinterested stockholders.” Commentators see Corwin as the poster child of an increasingly more restrained approach by Delaware courts—something labeled with expressions such as “Delaware’s retreat,” “the fall of Delaware standards,” and even “the death of corporate law.” Supporters of the decision applaud the shift from courts to markets in determining whether directors satisfactorily performed in the sale of the company. In an age of enhanced investor sophistication due to the growing size of institutional ownership, the argument goes, the judiciary has ceded the role of optimal decision maker to shareholders. However, the mainstream view among scholars is that Corwin is a setback in shareholder protection. To some, directors’ legal obligations are now limited to full disclosure. Others think that enhanced scrutiny is no longer available and the sole constraint directors face is the shareholder vote. In the views of critics of Corwin, the structure, nature, and quality of the substitute (vote vs. judicial review) are not compelling.

The economic disruptions caused by COVID-19 are causing many to question whether a new wave of investment losses are on the horizon and whether a corresponding wave of investor-led litigation reminiscent of financial crisis era litigation will follow. In a significant decision for defendants, the New York Supreme Court Commercial Division recently reminded would-be plaintiffs of the challenges of proving a fraud claim arising out of investment losses in times of crisis; critically, it requires proving that the alleged fraud—and not the intervening crisis—caused the plaintiff’s loss. On Friday, May 8, 2020 the New York Supreme Court Commercial Division entered an order granting summary judgment in favor of Merrill Lynch, dismissing an investor plaintiff’s fraud claim arising out of its investment in a 2006 collateralized debt obligation (“CDO”) that had been arranged by Merrill Lynch. [1] The court dismissed the plaintiff’s claim because the plaintiff failed to raise a triable issue of fact demonstrating that its investment losses in the CDO were caused by Merrill Lynch’s alleged misrepresentations or omissions, as opposed to the broader 2007-2009 financial crisis that affected the entire CDO market. This decision, arising from the financial crisis of over a decade ago, highlights the significant hurdle for investors contemplating securities fraud actions arising out of the COVID-19 pandemic.

Corporate information is valuable and often worth guarding. Firms must protect business strategies, and there is legitimate justification for opacity in the boardroom. At the same time, however, some information access is necessary to support sound corporate governance. If shareholders are expected to elect and monitor corporate leaders—as well as make personal investment decisions—then they must be able to muster facts about what is happening at the firm.