Corporate Governance

Independent Directors, Delaware Law, and Excessive Pleading Standards: London v. Tyrrell (Part 4)

By J Robert Brown Jr.

The court attempted to explain the difference in the standards applicable in the context of special litigation committees and demand excusal.  

Unlike a board in the pre-suit demand context,  SLC members are not given the benefit of the doubt as to their impartiality and objectivity. They, rather than plaintiffs, bear the burden of proving that there is no material question of fact about their independence. The composition of an SLC must be such that it fully convinces the Court that the SLC can act with integrity and objectivity, because the situation is typically one in which the board as a whole is incapable of impartially considering the merits of the suit.

The shift in the burden should have some impact on the outcome but the court made it very clear that identical factual allegations in the two contexts could result in different outcomes.

Thus, it is conceivable that a court might find a director to be independent in the pre-suit demand context but not independent in the Zapata context based on the same set of factual allegations made by the two parties. This is not because the substantive contours of the independence doctrine are different in these two contexts. Rather, it is primarily a function of the shift in the burden of proof from the plaintiff to the corporation when the suit moves from the pre-suit demand zone to the Zapata zone.

The description is an accurate description of the law in Delaware but hard to square legally.  The same allegations at the demand excusal stage must be made without the benefit of discovery.  Thus, the issue is only whether plaintiffs have raised sufficient concern to proceed with a further examination of the relationship.  This ought to require a low standard of proof.

In contrast, litigation surrounding the special litigation committee takes place after discovery.  In other words, the court in this case was acknowledging that the standard of review is higher for pre-discovery allegations than for post-discovery ones.  If anything, the analysis should be the other way around.

In any event, it should be plain that the admission that identical allegations can result in diametrically opposite findings with respect to director independence demonstrates that the determinations of board independence in Delaware does not mean that they are independent at all.

Full post as published by The Race to the Bottom on September 02, 2010 (boomark / email).