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Delaware Supreme Court Rejects Reimbursement ProposalSubmitted by: Ted Allen, Publications

On July 17, the Delaware Supreme Court rejected a proposed bylaw at CA Inc. that sought to require the computer software firm to reimburse dissidents for expenses incurred in successful short-slate proxy contests.

The bylaw proposal was filed by the American Federation of State, County, and Municipal Employees as an alternative to proxy access resolutions, which the Securities and Exchange Commission has allowed companies to omit. The AFSCME proposal would have required the board to reimburse successful dissidents for their ?reasonable expenses? in future short-slate contests.

The case is the first time that the Supreme Court has granted a request by the SEC to rule on the legality of a shareholder proposal. Islandia, N.Y-based CA, which--like a majority of U.S. public companies--is incorporated in Delaware, asked the SEC for permission to exclude the AFSCME proposal from the proxy statement for its Sept. 9 annual meeting.

The CA v. AFSCME decision can be seen as a partial victory for investors because the Supreme Court ruled that an election-related bylaw is a proper matter for shareholder action. As Justice Jack Jacobs noted in the court?s opinion, ?the shareholders of a Delaware corporation have the right ?to participate in selecting the contestants? for election to the board. The shareholders are entitled to facilitate the exercise of that right by proposing a bylaw that would encourage candidates other than board-sponsored nominees to stand for election.?

However, the Supreme Court went on to conclude that AFSCME?s bylaw would violate Delaware law because it would prevent CA?s board from fully exercising its fiduciary duties. While the labor union?s proposal specified that the board should award only ?reasonable? expenses, Jacobs said that provision ?does not go far enough because the bylaw contains no language or provision that would reserve to CA?s directors their full power to exercise their fiduciary duty to decide whether or not it would be appropriate, in a specific case, to award reimbursement at all.? The court noted that a board has a fiduciary duty to deny reimbursement in cases where a proxy contest is ?motivated by personal or petty concerns? or would promote interests ?adverse? to the corporation.

Following the CA decision, AFSCME said it would renew its efforts to pursue proxy access at the SEC. A short-staffed commission voted last November to allow companies to resume omitting access bylaw proposals, but SEC Chairman Christopher Cox has pledged that the agency would revisit the issue. With the U.S. presidential elections less than four months away, it?s unclear whether the SEC will tackle this controversial issue as it confronts other regulatory concerns that stem from the credit crisis.

?This decision makes Delaware less relevant to future discussions about shareholder rights, and makes a federal solution the only alternative for shareholders seeking fair and open elections,? said Richard Ferlauto, AFSCME?s director of corporate governance and pension investment. ?The ball is pushed back to the SEC for when the next chairman will finally have to resolve shareowner rights to proxy access.?

J. Travis Laster, a partner with the Abrams & Laster law firm in Wilmington, Del., offered a more sanguine view of the CA decision in a posting on TheCorporateCounsel.net weblog. ?Although many will likely view this as a loss for stockholders, I believe they should view the case as a significant win. Yes, the director-reimbursement bylaw was held invalid, but the court held that the election process was a proper subject for stockholder action. A bylaw mandating the inclusion of stockholder nominees on the company?s proxy statement should fare much better under a CA analysis,? he wrote.

However, Laster cautioned that the ruling would be ?generally negative? for stockholder bylaws that don?t relate to elections. The court?s analysis ?should doom any substantive component to a [poison] pill redemption bylaw, such as a requirement that directors not adopt or renew any pill that could be in place longer than a year,? he wrote in his posting.

The New York law firm of Wachtell, Lipton, Rosen & Katz, which represents companies and boards, hailed the CA ruling and concluded that the Supreme Court?s reasoning would preclude shareholder bylaws that would prevent boards from adopting poison pills. ?The Delaware Supreme Court?s unequivocal and welcome holding should discourage further efforts by stockholder activists to erode the fundamental prerogatives of the board of directors. The opinion will hopefully signal that the courts will not permit directors to be undermined or constrained in the exercise of their fiduciary duty in the broad range of subjects traditionally within their ambit as stewards of the corporation,? the firm wrote in a memo on the case.

Full post as published by Institutional Shareholder Services -- Corporate Governance Blog on July 18, 2008 (boomark / email).