mission et composition du conseil d’administration

Bonjour à toutes et à tous, la sénatrice Élisabeth Warren vient d’introduire un projet de loi très ambitieux (!) : le S.3348 – Accountable Capitalism Act.

Plusieurs points saillants ressortent de ce projet :

• La création d’un Office of United States Corporations.
• La possibilité de s’enregistrer auprès de cet organisme fédéral (alors que jusqu’à maintenant, rappelons-le, l’enregistrement se faisait auprès des États et notamment celui du Delaware).
• Les salariés représenteraient 40 % du CA.
• L’entreprise devrait poursuivre une mission sociétale.
• La redéfintion des devoirs des administrateurs et hauts-dirigeants.

Pour en savoir plus, lire cet article ici du The Guardian.

Extrait du projet de loi

SEC. 5. Responsibilities of United States corporations.

(a) Definitions.—In this section:

(1) GENERAL PUBLIC BENEFIT.—The term “general public benefit” means a material positive impact on society resulting from the business and operations of a United States corporation, when taken as a whole. (…)

(1) IN GENERAL.—The charter of a large entity that is filed with the Office shall state that the entity is a United States corporation.

(2) CORPORATE PURPOSES.—A United States corporation shall have the purpose of creating a general public benefit, which shall be—

(A) identified in the charter of the United States corporation; and

(B) in addition to the purpose of the United States corporation under the articles of incorporation in the State in which the United States corporation is incorporated, if applicable.

(c) Standard of conduct for directors and officers.—

(c) Standard of conduct for directors and officers.—

(1) CONSIDERATION OF INTERESTS.—In discharging the duties of their respective positions, and in considering the best interests of a United States corporation, the board of directors, committees of the board of directors, and individual directors of a United States corporation—

(A) shall manage or direct the business and affairs of the United States corporation in a manner that—

(i) seeks to create a general public benefit; and

(ii) balances the pecuniary interests of the shareholders of the United States corporation with the best interests of persons that are materially affected by the conduct of the United States corporation; and

(B) in carrying out subparagraph (A)—

(i) shall consider the effects of any action or inaction on—

(I) the shareholders of the United States corporation;

(II) the employees and workforce of—

(aa) the United States corporation;

(bb) the subsidiaries of the United States corporation; and

(cc) the suppliers of the United States corporation;

(III) the interests of customers and subsidiaries of the United States corporation as beneficiaries of the general public benefit purpose of the United States corporation;

(IV) community and societal factors, including those of each community in which offices or facilities of the United States corporation, subsidiaries of the United States corporation, or suppliers of the United States corporation are located;

(V) the local and global environment;

(VI) the short-term and long-term interests of the United States corporation, including—

(aa) benefits that may accrue to the United States corporation from the long-term plans of the United States corporation; and

(bb) the possibility that those interests may be best served by the continued independence of the United States corporation; and

(VII) the ability of the United States corporation to accomplish the general public benefit purpose of the United States corporation;

(ii) may consider—

(I) other pertinent factors; or

(II) the interests of any other group that are identified in the articles of incorporation in the State in which the United States corporation is incorporated, if applicable; and

(iii) shall not be required to give priority to a particular interest or factor described in clause (i) or (ii) over any other interest or factor.

(2) STANDARD OF CONDUCT FOR OFFICERS.—Each officer of a United States corporation shall balance and consider the interests and factors described in paragraph (1)(B)(i) in the manner described in paragraph (1)(B)(iii) if—

(A) the officer has discretion to act with respect to a matter; and

(B) it reasonably appears to the officer that the matter may have a material effect on the creation by the United States corporation of a general public benefit identified in the charter of the United States corporation.

(3) EXONERATION FROM PERSONAL LIABILITY.—Except as provided in the charter of a United States corporation, neither a director nor an officer of a United States corporation may be held personally liable for monetary damages for—

(A) any action or inaction in the course of performing the duties of a director under paragraph (1) or an officer under paragraph (2), as applicable, if the director or officer was not interested with respect to the action or inaction; or

(B) the failure of the United States corporation to pursue or create a general public benefit. (…)

(d) Right of action.—

(1) LIMITATION ON LIABILITY OF CORPORATION.—A United States corporation shall not be liable for monetary damages under this section for any failure of the United States corporation to pursue or create a general public benefit.

À la prochaine…

Ivan Tchotourian