The Holy Grail of Corporate Governance Reform- Independence or De
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The Holy Grail of Corporate Governance Reform- Independence or De
C0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Denown in business and academic circles as a corporate governance guru. Robert Clark, a professor and fonnei dean of Harvard Law School, recently found himself in the middle of a boardroom imbroglio.* 1 2 3 Mr. Clark joined the board of dữectors of media conglomerate Time Warner Inc. ("Tune Warner”) i The Holy Grail of Corporate Governance Reform- Independence or Den January 2004 as an independent member. Ill May 2005. Mr. Clark also joined, as an independent member, the board of directors of Lazard Ltd. (“LazardThe Holy Grail of Corporate Governance Reform- Independence or De
”), an advisory investment banking firm whose chief executive officer ("CEO"), Bruce Wasserstein. was a longstanding business associate and personal fC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or De shareholders in a proxy battle to replace a majorin- of the board of directors of Tune Warner. •’Although Mr Clark's membership on the Lazard and Time Warner boards was in full compliance With the recently enacted regulatory' reforms relating to director independence, his personal and professional• The Holy Grail of Corporate Governance Reform- Independence or De Assistant Professor of Legal and Ethical Studies. Foidliam Vmvwity Schools of Business BA.. 1998. Fordham University: J.D.. 2001. Har.ard Law School.The Holy Grail of Corporate Governance Reform- Independence or De
I w-.sh to express my gratitude for the able research assistance of Samuel Mok; the invaluable advice offered by Mark A. Conrad. Kenneth R. Dasis. anC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deard. N.Y. TIMES. Dec 4. 2005. at C3.2.Sii Andrew Rosa Sorkin, Director Chooses Time Warner cner Lazard Amid Proxy Fight, NY. TIMES, Dec 7,2005. X co [licreinaftcr Sorkin. Director Chooses Time rrThe Holy Grail of Corporate Governance Reform- Independence or De
e was Time Waner’s disastrous 2000 merger with America Online, which lias since left the merged company with a languishing share price See Richard SilC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or DeIcahn's plans to teem a dissident slate in anticipation of a proxy fight at Time Warner's annual meeting in May 2006 had been stagnating. See id.1C0SENZA PP2.D0C« 20 '03711:17:59 PMBrigham Young University Law Review[2007relationship with Nữ. Wasserstein. as well as the proxy battle between the two The Holy Grail of Corporate Governance Reform- Independence or Decompanies, raised serious questions about his ability to serve concurrently as a tally independent member of both boards 4 In December 2005. Nil. ClarThe Holy Grail of Corporate Governance Reform- Independence or De
k resigned from the board of diiectors of Lazard to avoid any perception of a conflict of interest.5 The dilemma that led to his resignation is instruC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deal candidate for membership on any boaid of directors. More importantly, however, his resignation informs the ongoing debate regarding the desirability and practicability of independence-centered governance reform in the United States.6Part II of this Article presents an intentionally selective list The Holy Grail of Corporate Governance Reform- Independence or De of the reforms enacted by Congress and the self-regulatory organizations (“SROs'1) relating to director independence following the corporate scandalsThe Holy Grail of Corporate Governance Reform- Independence or De
of 2001 and 2002. The reforms proscribe primarily employment4.Mr. Clark's business relationship with Bruce Wasserstein dates back to 1993 when Mr. ClC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deenson. supra note 1. In 1994. Mr. Clark became a director of Collins A- Aikman. an automotive supplies maker whose co-chairman of the board at the time was Mr. Wassastcin. Id. Lata, Mr Clark joined the Ixaard of American Lawyer Media Holdings, anotha company run by Mr. Wasscrstem. Id In addition. Ml The Holy Grail of Corporate Governance Reform- Independence or De. Clatk was a rounding director 81 American Lawyer. 8 private company and publisher of The National Law Journal and The Amaican Lawyer. both of whichThe Holy Grail of Corporate Governance Reform- Independence or De
Nfr Wassastein created Id In June 2003, Mr Wassastein and eleven alumni made a S5 1 million contribution to Harvard Law School in Mr. Clark’s name aa C0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or De E. Wallace, Accounting. Auditing, and Audi: Committees After Enrol-. er OỈ.: Governing Outside the Box Without Stepping off die Edge tn the Modern Economy. 43 Washburn L.J. 91. 102-03 (2003): tee also E. Norman Veasey i Christine T. D-. Guglielmo. rritffl! Happened in Delaware Corporate Law and Gov The Holy Grail of Corporate Governance Reform- Independence or Deernance from 1992-2004? A Reưospective on Some Key Developments. 153 u. Pa. L. Rev. 1399. 1411 (2005) ("A number of definitions [of corporate governanThe Holy Grail of Corporate Governance Reform- Independence or De
ce] have emerged since that term became preemnent in the United States during the 1980*.**). In it* broadest sense, coepotate govanance hsi been definC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or De. and the board of directors Ste Mark J. Loewenstein, The SEC and the Future of Corporate Governance, 45 ALA. L REV. ?83. 815 n 1 (1994); Veasey & Di Guglielmo. supra, at 1411. Profe-sor John Farrar offered an interesting definition of corporate govanance when he wrote, “The etymology of -govanance* The Holy Grail of Corporate Governance Reform- Independence or De come- from the Latin words gubernare and gubernator, which refer to stewing a ship and to the steacr or captain of a ship . The word -governance', whThe Holy Grail of Corporate Governance Reform- Independence or De
ich lias a rather archaic ring to it, comes from the old French word -goovetnance’ and means control and the state of being governed .. Thus we have fC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deis more than simply being on course: It is also being shipshape and in goad condition." JOHN Farrar. Corporate Governance in Australia and new Zealand 3 (Rorie Adams ed.. 2001).0COSLXZA PP2 oacÍ2Q2MT1I IT'9PM11Hie Holy Grail Corporate Goveniance Reformand other financial relationships between dứecto The Holy Grail of Corporate Governance Reform- Independence or Ders and management that many experts believe impair independence. Using the facts surrounding Robert Clark's recent high-profile resignation from the LThe Holy Grail of Corporate Governance Reform- Independence or De
azard board. Illis Part explores whellier independence represents a stale of mind inherently invulnerable to corporate legislation or regulation, rathC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or De Pari 11 exposes the limitations of the existing statutory and regulatory landscajK' and casts doubt on the propriety of independence as the centerpiece of modem coqioratc governance reform in the United Slates.The enactment of governance reform requnes an understanding of the history of (he debate The Holy Grail of Corporate Governance Reform- Independence or Deconcerning the appropriate role, if any, for an independent duectorate in corporate governance. To that end. Part 111 of this Article sets forth the aThe Holy Grail of Corporate Governance Reform- Independence or De
rguments that have been advanced both in favor of and against independent directors, as well as the theoretical predicate underlying the reforms' emphC0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deonality and thereby empower independent directors beyond then utility. Pail 111 also considers the structural bias theory' and cautions against overly simplistic generalizations relating to director bias.While the federal reforms have elevated the issue of independence to the forefront of the corpor The Holy Grail of Corporate Governance Reform- Independence or Deate governance debate, recent Delaware jurisprudence has also sharpened the focus on the role of boaid composition generally—and in particular, on indThe Holy Grail of Corporate Governance Reform- Independence or De
ependent dhectors—for corporate governance reform. Part IV of the Article analyzes recent Delaware jiuispiudence on diiector independence in both the C0GEXZa.PR2.IWC6 20 200711:17:59 PMThe Holy Grail of Corporate Governance Reform: Independence or Democracy?Elizabeth Cosenza*I. IntroductionWidely kn The Holy Grail of Corporate Governance Reform- Independence or Deus Fraud: SEC V. Chancellor Corp.. 10 FORDHAM J. CORP. A- FIX. I.. 439. 450 (2005). Given that mast Fortune 500 and NYSE-listed companies nre incoepomted in Delaware. Delaware courts are considered the lending arbiters of corporate governance matters.s. Delaware corporate jurisprudence is authoritat The Holy Grail of Corporate Governance Reform- Independence or Deively framed in part by the Delaware Supreme Court and in part by the Delaware Court of Chancery. s.v Veasey fi Di CiUfclielmo. supra aoto (i. al 1101The Holy Grail of Corporate Governance Reform- Independence or De
. 1108-0!» (voninioilũig that div Delaware Svyiunc Court offers div aiiliict-.lali'.v final wad on eoiyec-ote jurisprudence). liw lusuulluous atmospheGọi ngay
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