Founded in 1927, Temple Law Review is a student-edited, quarterly journal dedicated to providing a forum for the expression of new legal thought and scholarly commentary on important developments, trends, and issues in the law.
The Delaware Chancery Court’s decision in In re Caremark was and is a landmark decision. This brief Commentary takes a look back at Caremark on three issues that pertain to its contemporary relevance inside the corporate boardroom: (1) framing the cost-benefit assessment on the question of how much to spend on compliance; (2) how and when to force certain compliance matters to real-time board-level attention; and (3) using selection, promotion, and compensation decisions to influence the culture and risk-taking “temperature” of the firm.
This Essay discusses the project on compliance and risk management of the American Law Institute in relation to the governance of compliance and risk management in an organization. It identifies several important governance issues and debates that have emerged in the drafting process. These issues are (i) the appropriate role of what the project calls the “highest legal authority” in compliance and risk management and (ii) the related topic of to whom internal control officers, particularly the chief compliance officer and the chief risk officer, report. While discussing the importance of, and the project’s approach to, these issues, the Essay emphasizes that the project provides flexibility to organizations, which reflects the diversity of organizational practice on these, and other, governance issues.
What should a company’s compliance program encompass? In re Caremark International, Inc. Derivative Litigation (Caremark) establishes directors’ monitoring and oversight duties, functioning in tandem with other rules and regulations. But compliance programs go far beyond what is needed to avoid lawbreaking, and what directors do to “comply with” their Caremark duties goes far beyond what is needed to avoid liability, incorporating, among other things, concerns about reputation, both theirs and their company’s.
In the compliance and ethics field, In re Caremark International Inc. Derivative Litigation is one of the few judicial decisions that professionals will know by name. In 1996, the Delaware Chancery Court’s decision was the first to recognize a director’s fiduciary duty to oversee a corporation’s compliance and ethics program, which instantly raised the visibility and urgency of compliance and ethics in the board room.
Caremark is undoubtedly one of the most important decisions in corporate governance and compliance. The opinion’s articulation of the standards for holding board members liable for failing to properly monitor the corporation is said to have transformed Delaware law. Exactly why that is, however, carries some mystery.
Many countries claim to embrace top-notch corporate governance codes, principles, and systems, yet qualify as fallen angels, captured economies, or states in conflict. Disjointed regulatory frameworks around the world still perpetuate deficiencies that complicate our ability to forecast and mitigate the impact of financial risk. And central to the solution is the corporate world. In short, we can do better!
Justice Scalia was right. Five years ago, in Comcast Corp. v. Behrend, the Supreme Court held that the trial court improperly certified a class of cable subscribers. The opinion, authored by Justice Scalia, found that the economic model used to measure damages resulting from alleged antitrust violations could not accurately compute damages on a class-wide basis. “For all we know,” Justice Scalia concluded for the five-justice majority, subscribers to Comcast cable services could have been injured by any number of antitrust violations. “[C]able subscribers in Gloucester County,” Justice Scalia supposed, “may have been overcharged because of petitioners’ alleged elimination of satellite competition.” He continued, “subscribers in Camden County may have paid elevated prices because of petitioners’ increased bargaining power vis-à-vis content providers,” while subscribers in Montgomery County “may have paid rates produced by the combined effects of multiple forms of alleged antitrust harm.” According to Justice Scalia, and the four Justices who joined him, “[t]he permutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless.”
Today, fights over domain name ownership are common. Amy Schumer, FIFA, Goldenvoice (the organizer of the Coachella Music Festival), and Equifax, to name just a few, are recent filers of domain name complaints. These complaints generally allege a “cybersquatting” claim. Cybersquatting occurs when an individual or entity knowingly registers a domain name consisting of a well-known name with the intent of ransoming it to its rightful owner or with the intent to divert business away from the name holder. For example, People for the Ethical Treatment of Animals (PETA), an animal rights organization, brought suit against an individual who registered PETA.org because this domain name confused internet users by diverting them to his site, one that espoused a conflicting philosophy, People Eating Tasty Animals.
The behavioral health crisis looms, but popular culture teaches us that technology can heal all woes. Americans retain unfettered access to technologies that “solve” nonexistent problems. Terrified by the possibility of out-of-focus photos of your gerbil? Fear no more! Buy a smartphone app designed to take the perfect pet photo. Worried about putting one too many crystals of salt on your baked potato? Your new Bluetooth-enabled salt dispenser will measure out the precise amount. Though enchanting and readily available, most would agree that pet photo apps and Bluetooth salt dispensers do not serve necessary functions in our lives. The National Institute of Health has yet to declare a blurry cat photo crisis. The United States has, however, recognized a serious public health emergency around the availability of adequate behavioral health care for low-income people.
Excessive litigation confidentiality and disproportionate discovery are symbiotic problems. Indeed, when a litigant uses discovery to obtain damaging information about an opposing party, the party will often pay money to avoid public disclosure through a confidentiality agreement. As a result, litigants have significant financial incentives to seek damaging information through discovery, whether it is connected to the case or not. Nevertheless, policy makers largely approach discovery proportionality and confidentiality as unrelated problems. Take, for example, the recent proportionality amendment to Rule 26 limiting the scope of discovery, or “sunshine” statutes aimed at reducing litigation confidentiality for the sake of public safety. The reforms ignore one another and the tangled incentives that connect both problems.This Article is the first to address the confidentiality-discovery incentive relationship in the post-proportionality-amendment era. It contends that making private confidentiality agreements illegal, at both the pretrial and settlement stages, would reduce incentives to seek low-merits-value discovery.