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LJN NewslettersNewsSectionsThe Corporate Counselor

The Increasing Importance of Corporate Minutes

By Timothy E. Hoeffner and Shiloh D. Napolitan
August 30, 2005

As corporate scandals continue to dominate the financial press, the actions taken by members of corporate boards of directors are under attack by the civil class action bar, the Securities and Exchange Commission, federal prosecutors, and state regulators. As the activities of board members are increasingly subjected to challenge in civil and even criminal proceedings, the existence of a clear record of the board's activities has become an increasingly critical element in establishing a corporation's decision-making process. More and more, courts are taking hard looks at the minutes of board of director and committee meetings to determine whether the actions taken by directors are consistent with corporate law and the fiduciary duties owed by directors to the corporation. Thus, boards of directors should take a fresh look at how their decision-making process is described in corporate minutes to ensure that the minutes will permit the directors to defend the actions taken in the boardroom, as well as to demonstrate that the directors have performed their oversight duties with appropriate care.

This article summarizes the recent case law and investigations focusing on the contents of board and committee minutes to evaluate the conduct of board members. These cases fall into two broad areas: i) compensation decisions; and ii) the defense of federal securities law claims. Examples of cases within both of these areas are discussed in this article. We will then summarize the lessons learned from these cases in an effort to provide guidance to board members, legal advisors and corporate secretaries on the preparation of minutes.

Compensation and Employment Decisions

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