devoirs des administrateurs

Le 15 janvier 2025, la jurisprudence américaine a rendu un arrêt qui aborde le contenu des devoirs fiduciaires des gestionnaires de fonds.

Dans l’affaire Spence v. American Airlines, Inc. 2025 WL 225127 (N.D. Tex. 2025), le plaignant a intenté une action collective contre American Airlines et son comité des avantages sociaux des employés (« EBC ») en invoquant des manquements aux obligations fiduciaires de loyauté et de prudence résultant des pratiques d’investissement des fiduciaires du plan.

Extrait tiré du site du cabinet Miller Canfield (ici) :

Defendants Breached the Fiduciary Duty of Loyalty

The district court in American Airlines concluded that the plan fiduciaries breached their duty of loyalty by failing to act solely in the retirement plan’s best financial interest when the plan fiduciaries allowed their corporate interests to influence management and investment of plan assets. The court found it apparent that the plan fiduciaries failed to question BlackRock’s ESG activities, either because the plan sponsor’s corporate objectives were aligned with BlackRock’s ESG objectives or because the plan fiduciaries were afraid to question a large shareholder (or both).

The court took note of the following factors that showed the various corporate ties to BlackRock that were inappropriately leveraged to influence management of the plan:

• BlackRock was one of American Airline’s largest shareholders.
• BlackRock managed billions of dollars in plan assets at a time that it owned 5% of American Airline’s stock.
• BlackRock financed roughly $400 million of American Airline’s corporate debt when American Airlines was experiencing financial difficulty.

Defendants Did Not Breach the Fiduciary Duty of Prudence

Despite finding that the plan fiduciaries breached the duty of loyalty, the court found that their investment monitoring practices were consistent with prevailing industry practices and that the plan fiduciaries acted in a manner similar to other fiduciaries in the industry. Accordingly, the court did not find that the plan fiduciaries breached the duty of prudence when using BlackRock as an investment manager.

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Les entreprises et les banques canadiennes semblent avoir fait le choix de la RSE et des parties prenantes comme l’illustre cet article : « Canadian companies can care about more than profit, and could pay a price if they don’t «  (Financial Post, 3 juin 2020).

Extrait :

It is not the first time a leader with a fiduciary responsibility waded into the public discourse. In January, Michael McCain, chief executive of Maple Leaf Foods Inc., used Twitter to criticize the White House for creating geopolitical conditions that led to Iran’s military destroying a Ukrainian airliner carrying more than 170 people, including 55 Canadian citizens and 30 permanent residents.  

(…) Corporate stances on environmental, social and political issues are becoming more common. And in Canada, a change to corporate law last year freed executives of some companies to expand their mandates beyond simply maximizing shareholder returns without fear of legal reprisal.

(…) “Companies and investors are beginning to recognize that what happens out there in the real world is arguably even more important than what happens on their spreadsheets and terminals,” said Kevin Thomas, chief executive of the Shareholder Association for Research and Education, a not-for-profit group focused on responsible investing. 

The responses by the heads of some of Canada’s biggest companies to the protests in the United States, as well as their various attempts to assist customers during the coronavirus pandemic, come as companies are also embracing more “stakeholder” capitalism, wherein the raison d’être for firms is more than just returning cash to shareholders. 

(…) Stakeholder capitalism was the theme of this year’s World Economic Forum’s gathering in Davos, Switzerland, where one of Masrani’s peers, Royal Bank of Canada chief executive Dave McKay, was in attendance. 

“As trust in governments wanes, and the complexity of society’s problems grows, companies are charting their own course on environment, social and governance issues, to maintain public confidence in business and ensure the prosperity of communities that business serves,” McKay wrote in January. 

On Tuesday, McKay published a post on LinkedIn stating he was “personally outraged at the senseless and tragic deaths in the U.S., which are clearly symptomatic of ongoing racial discrimination and injustice, and I know we are not immune to it in Canada.”

A year ago, Parliament passed legislation that amended the Canada Business Corporations Act (CBCA), which lays out the legal and regulatory framework for thousands of federally incorporated firms, to spell out in greater detail how directors and company officers could meet their legal responsibility to “act honestly and in good faith with a view to the best interests of the corporation.”

The updated law states that directors and officers may consider shareholders, as well as employees, retirees, creditors, consumers and governments when setting corporate strategy. The law also now states that both the environment and “the long-term interests of the corporation” can be taken into consideration.

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Lecture de Leon Yehuda Anidjar sur le devoir de prudence et son intérêt dans le contexte de la COVID-19 : « A Firm-Specific View of Directors’ Duty of Care in Times of Global Epidemic Crisis » (Oxford Business Law Blog, 20 mai 2020).

Extrait :

In a recent paper, I discuss the directors’ duty of care in times of financial distress from a global perspective and focus on directors’ roles in different types of SMEs. I argue that while the economic crunch of the years 2007–2009 was a direct result of large governance deficiencies (Bruner, 2011), which generated various reforms that reinforced the monitoring role of directors, the current crisis will highlight the significance of the directors’ managerial roles. Accordingly, we can expect jurists and policymakers to design numerous regulatory reforms that will reinforce their advisory role in a fashion that will assist them in tackling the severe consequences of our current times. Moreover, supervisory authorities may decrease the regulatory burden imposed on directors to allow them to invest considerable managerial resources for supporting the survival of companies (as Enriques demonstrates concerning corporate law, and Chiu et al point out regarding financial regulation). 

Furthermore, I argue that the civil law on directors’ duty of care provides boards with a broader scope of discretion to confront the challenges associated with COVID-19 than the Anglo-American law. Delaware corporate law, for instance, posits that since directors, rather than shareholders, manage the affairs of the corporation, they should be protected by the business judgment rule. However, a recent empirical study demonstrated that challenges to business judgment in English and Welsh cases have been increasingly successful from the mid-nineteenth century until the present, with a marked increase in legal liability since 2007. This indicates that the proposition that English courts will generally not review directors’ business decisions is incorrect (Keay et al, 2020). In contrast, under the law applicable in countries such as Germany, France, Italy, and the Netherlands, the standard of care cannot be determined absolutely: it must address the specific situation for which the question of the due diligence of organ dealing arises. Accordingly, this standard is at the same time objective and relative, ie, a company comparable in size, business, and the economic situation shall serve as a model (as illustrated by, the Cancun ruling of the Dutch Supreme Court).

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Le 30 avril 2020, Philip Gavin s’est interrogé sur l’intérêt de l’article 172 du Company Act pour les administrateurs et dirigeants dans le contexte de la COVID-19 : « Directors’ Duty under UK Law to Promote the Success of the Company during the COVID-19 Pandemic » (Oxford Business Law Blog).

Extrait :

A nuance to director’s duties in the United Kingdom is the expansive statutory delineation of s 172, which endows numerous considerations for directors when acting to promote the success of the company for the benefit of members. Given the unique circumstances of the present-day commercial sphere and the more humanitarian demands being put to businesses, having a statutory foundation upon which to base non-traditional business strategies may assist effective decision-making and financial reporting.

The initial three considerations enshrined within s 172 are (a) the likely long term consequences of any decision, (b) the interests of employees and (c) the need to foster business relationships with suppliers, customers and others. These factors are of particular relevance for firms who sought justification for voluntary shutdown of businesses prior to the wider governmental shutdown.

(…)

Where production changes become quasi-humanitarian in tone and companies internalise cost in the interim, directors may seek justification through s 172(1)(d) and (e), these being the impact on the community and the desirability of maintaining high business standards respectively.  Accordingly, directors can seek to frame these quasi-humanitarian efforts in long-term reputational terms, thereby engendering prospective communitarian goodwill.

Furthermore, as political pressure mounts, boards may evaluate reputational factors not simply in terms of market reputation, but also in terms of Governmental co-operation. This is particularly so where companies face increased intervention by public authorities through the Civil Contingencies Act. Comparatively, in a recent memorandum the Trump administration has attempted to exert control over the distribution of ventilators by the multinational conglomerate 3M. Cautious of such intervention occurring within their own enterprises, companies may shift business operations to such an extent to signal their compliance and co-operation with public authorities, thereby disincentivising the wholesale overrule of board discretion. 

Within jurisdictions with vaguer duties to act bona fide in the best interests of the company (Delaware, Australia, Ireland), directors may still engage in such quasi-humanitarian efforts. Nevertheless, utilising s 172 to steer directorial judgment may assist effective decision-making, and furthermore guide financial reporting, which mandates s 172 director’s statements.  Given that the tenor of 2020 reports will be likely dominated by COVID-19, UK directors will benefit from the homogenising structure of s 172 when making such disclosures in the coming months.

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UCLA School of Law vient de publier un rapport d’une dizainede pages sur la gestion du capital humain et son intégration dans la gouvernance des entreprises : « Corporate Governance : The growing Importance of Human Capital Management » (avril 2020).

Extrait :

1. Over the last several years, investors and proxy advisory firms have increasingly focused their attention on environmental, sustainability and governance (ESG) and human capital management (HCM) issues. While there is no one definition of HCM, the term is widely used to cover a very broad range of workforce matters that are of concern to investors and the public as they focus on building long-term value and reducing business and reputational risks. These concerns have resulted in calls for enhanced company disclosures about their HCM practices and processes.

2. Under Delaware and federal law, directors have no duties that are specifically focused on HCM. However, under Delaware law and that of many other states, directors have duties of care, loyalty and oversight that can under certain circumstances apply to HCM matters and can result in director liability.

3. While federal securities laws and rules contain several corporate disclosure requirements that apply to employees and touch on HCM issues, current laws and rules are not as robust or focused as many investors would like and have proposed. In response to rulemaking and other investor requests, the U.S. Securities and Exchange Commission has proposed amendments to its disclosure rules that would expressly require companies to describe their human capital resources to the extent that they are material to an understanding of a company’s business as a whole.

4. Some public companies have already articulated board responsibilities for oversight of HCM matters; some have renamed and expanded the responsibilities of their compensation committees to reflect their expanded focus; and some have disclosed their HCM polices and efforts in their securities law filings and other publications.

5. Separate and apart from the legal requirements that apply to corporate board duties and corporate disclosure requirements, there are important business, governance and reputational reasons for boards and companies to care about and address HCM matters. 6. While there is no one-size-fits-all approach to board oversight of HCM matters, areas for possible board attention are (i) diversity and inclusion, (ii) employee satisfaction and engagement, (iii) succession and talent management, (iv) attrition and retention, and (v) ethics, workforce culture and risk.

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Merci au cabinet Stikeman Elliott pour ce billet daté du 24 avril 2020 intitulé « COVID et gouvernance d’entreprise : une mission plus large pour les conseils d’administration ». Un précieux éclairage sur ce qui va changer pour les CA avec la COVID-19…

Extrait :

Cette discussion aborde les principaux défis auxquels sont confrontés les chefs d’entreprise canadiens à l’approche de la phase de réouverture :

se concentrer sur les véritables enjeux; 

veiller à la gestion immédiate des crises et à la préparation du conseil d’administration; 

repenser la stratégie et la gestion des risques;

repenser les cadres incitatifs; et

repenser l’objectif de l’entreprise.

Comme en conclut l’article, cette crise redéfinira une grande partie de ce que nous considérons comme étant de la « bonne gouvernance ». Les conseils d’administration, en particulier, doivent élargir leurs missions pour s’assurer que leurs entreprises sont préparées à la nouvelle réalité qui les attend.

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