The Vivendi lawsuit raises in its wake the question of responsibility of the directors of listed companies. During the lawsuit, the Chairman & CEO Jean Marie Messier denied that he had “voluntarily” caused the near bankruptcy of Vivendi. It is true that the strategy which he implemented was approved by the Board of Directors and that the Directors are not being sued today since they are not deemed to be responsible.
Paradoxically, the near bankruptcy of banks in developed countries two years ago following poorly managed off-balance sheet transactions, as part of strategies approved by these banks’ Boards of Directors, raises the same question today: can members of Boards of Directors be considered responsible for such strategic errors?
Formally, the law does not deem directors to be responsible for strategic errors. Does this mean therefore that “in fine” no one is responsible?
Morally, it is surprising that directors, who were a party to the approval of a strategy which has seriously put their company at risk, have not resigned of their own accord, considering that they had not anticipated the risks or did not have the expertise to control the implementation by the Managing Director of the strategies approved by the Board.
As an example, we had expressed our surprise since 2004 to the Chairman of Société Générale that there isn’t a single Director who has a solid understanding of the derivatives markets. Only one Director (moreover a woman…) having the necessary expertise was appointed and only in 2008 just after the Kerviel affair!
As shareholders, we are also responsible for having voted for Directors without ensuring that their expertise was in line with the needs of the Board of Directors which has to include a diverse group of men and women having a good understanding of the business and of the risks involved.
Some shareholders will argue that in non-listed companies, since minority shareholders are not very involved, the responsibility of members of the Board of Directors is to ensure that, amongst them, some members have the necessary expertise to understand the risks inherent to the development of any particular business activity. We cannot construe our role as shareholders as simply receiving dividends, voting for the proposed Directors without asking questions, hesitating to dismiss non-independent Directors who are members of five or even six boards besides being an executive director elsewhere, and who therefore do not have the necessary time or hindsight to exercise their judgment!
“Trader” or “investor”: are our minds made up?
Le blog dédié aux échanges sur les questions fondamentales pour l'amélioration des enjeux ESG. L'engagement actionnarial est au centre de la stratégie d'investissement de PhiTrust.
