Sonia K. Nijjar and Jenness E. Parker are Partners, and Lauren N. Rosenello is an Associate at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum.
Takeaways
- Boards should see minutes as a way to tell how they worked to fulfill their duties to stockholders, capturing a board’s deliberations and the reasoning behind its decisions.
- Properly documenting the board’s deliberative process takes on heightened significance for “mission-critical matters” such as major deals, oversight of monoline businesses or significant revenue flows, or catastrophic events, where board actions may be the subject of stockholder litigation.
- Well-drafted board minutes can help contain the scope of stockholders’ books and records requests and make it easier to win early dismissal of lawsuits.
- To protect against claims that a company’s disclosures were misleading, a company’s public statements and filings should be consistent with the board minutes.
Board minutes are an essential part of a company’s internal record keeping. But they are more than a routine, formal exercise. They also play a pivotal role in stockholder litigation. As a contemporaneous record, plaintiff stockholders will scrutinize minutes when evaluating and pursuing claims against directors and officers, and judges will consider minutes at the pleadings stage. Boards should see minutes as a way to tell how they worked in fulfilling their duties to stockholders.
Minutes of important board meetings, and proxy statements describing them, have become increasingly important in recent years as a result of developments in Delaware law. Courts have sometimes granted stockholders early access to documents beyond formal board materials, such as directors’ emails and text messages, where they found that minutes offered too sparse an account of a board’s consideration of a particular issue. In addition, if a formal board record is lacking, stockholders may argue that a board breached its duty to oversee and address risk.
By contrast, a sufficiently clear record in the minutes of directors’ deliberations and the process by which they reached decisions can position the company to head off intrusive probes of internal records at the outset, help prevent complaints from being filed, and potentially aid in winning early dismissal of suits.
