86 lines
3.9 KiB
Markdown
86 lines
3.9 KiB
Markdown
---
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created_at: '2011-11-12T15:38:46.000Z'
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title: The myth of shareholder capitalism (2010)
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url: http://hbr.org/2010/04/the-myth-of-shareholder-capitalism/ar/1
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author: _delirium
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points: 60
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story_text: ''
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comment_text:
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num_comments: 30
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story_id:
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story_title:
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story_url:
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parent_id:
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created_at_i: 1321112326
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_tags:
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- story
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- author__delirium
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- story_3227980
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objectID: '3227980'
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---
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When Kraft took over Cadbury in January, the deal was viewed as a
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victory of shareholder capitalism. The acquired company’s deeply English
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roots were no match for the wealth shareholders could gain by selling
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out to what one Cadbury family member called “a company that makes
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cheese to go on hamburgers.” Cadbury chairman Roger Carr said, “The
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reality is we are part of a global business.”
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Did Carr have a choice? Was he truly beholden to his shareholders’
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desire to take the deal? If not, how can directors act against the
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wishes of shareholders to preserve value for other stakeholders—value
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that is often less easily measured than a buyout price? In the wake of
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the scandals that caused the recession, the management world has been
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immersed in trying to answer such questions.
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Oddly, no previous management research has looked at what the legal
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literature says about the topic, so we conducted a systematic analysis
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of a century’s worth of legal theory and precedent. It turns out that
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the law provides a surprisingly clear answer: Shareholders do not own
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the corporation, which is an autonomous legal person. What’s more, when
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directors go against shareholder wishes—even when a loss in value is
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documented—courts side with directors the vast majority of the time.
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Shareholders seem to get this. They’ve tried to unseat directors through
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lawsuits just 24 times in large corporations over the past 20 years;
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they’ve succeeded only eight times. In short, directors are to a great
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extent autonomous.
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There is no legal basis for the idea of shareholder supremacy.
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And yet, in an important 2007 article in the [Journal of Business
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Ethics](http://www.springerlink.com/content/100281/), 31 of 34 directors
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surveyed (each of whom served on an average of six Fortune 200 boards)
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said they’d cut down a mature forest or release a dangerous, unregulated
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toxin into the environment in order to increase profits. Whatever they
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could legally do to maximize shareholder wealth, they believed it was
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their duty to do.
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Why are directors so convinced of their obligation that they’d make
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decisions with such damaging results? If the law clearly doesn’t call
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for all the kowtowing, couldn’t Cadbury’s Carr have assumed a more
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defiant stance against a takeover?
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The problem, we believe, is that managers and lawyers have failed to
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meaningfully collaborate on defining directors’ role. That lack of
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communication has led to the election of directors who, frankly, don’t
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know what their legal duties are. Indeed, they’re being taught the wrong
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things. The case still most often used in law schools to illustrate a
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director’s obligation is [Dodge v. Ford
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Motor](http://en.wikipedia.org/wiki/Dodge_v._Ford_Motor_Company)
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(1919)—even though an important 2008 paper by Lynn A. Stout explains
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that it’s bad law, now largely ignored by the courts. It has been cited
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in only one decision by Delaware courts in the past 30 years.
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Collaboration between legal and management entities should start at the
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MBA and executive-education level, to change the way directors are
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trained and developed. But it should also shape director selection, a
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process where trustworthiness and independence from all stakeholders,
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not just from managers, is critical.
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The impact on directors’ decision making could be significant. The
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Cadburys of the future may not end up selling out just because it looks
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like a good deal for the shareholders.
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A version of this article appeared in the [April
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2010](/archive-toc/BR1004) issue of Harvard Business Review.
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