Occupy Newt's Brain

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

[Anonymous]

TheManWithAUsername wrote:

Anonymous wrote:

TheManWithAUsername wrote:
That's not what the BJ rule says. That's just a burden of proof rule, basically. It makes it harder to prove that a director breached, but it doesn't change the fundamental duty.

The BJ rule makes it harder to show that an action apparently against the shareholder's financial interest in fact was, but if a director announces that he took an action he knew to be against the corporation's financial interest, he admits his breach of fiduciary duty.

Do you contend that a director can, within the law, intentionally sacrifice the shareholders' financial interests to some other cause and not be liable? (Note that this is not the same as a short-term sacrifice, e.g. donating to charity in the interest of PR.)

I suppose that depends on what you mean by "intentionally sacrifice." As I myself said, a director can't just give shareholders' money away to some cause they think is more worthy. (Can't we all agree that is a pretty good rule?)

I didn't hear anyone complain about it.

Anonymous wrote:Could a director say "despite the fact that there is a positive expected return to selling a defective product because the likely profit outweighs the likely adverse tort judgments, we are not going to sell defective products because it is just plain wrong" without running afoul of any principle of corporate law? Absolutely, as far as I know -- feel free to cite something to the contrary, if you think I'm wrong.

You're muddying the issue. Obviously, no one is obliged to violate other laws - including tort law - to meet his/her fiduciary duties. A director doesn't have to illegally pollute or murder anyone, either.

Anonymous wrote:Corporate directors obviously have a duty to act in their shareholders' financial interest, but not, as far as I know, a duty to push that principle to the absolute limit without any consideration of morality or social impact. They have far more discretion than that.

They absolutely do not have the discretion to act in the public good - i.e., to be moral or consider the social impact - to the detriment of their shareholders. They have a duty to their shareholders and no duty, other than as defined by other criminal and civil law, to anyone else. To the degree that they sacrifice the shareholder's interests to those of society or any non-shareholder member of it, they have breached their duty.

As I said above, I think you're confusing their latitude as a matter of proof with discretion over whether to support their shareholders' interests. Let's say a director of a large company authorizes a $10k gift - relatively very small - to a homeless shelter. When questioned, if he says he thought it was good PR no one can go after him b/c he gets the benefit of the doubt. But if he says, "Well, it cost us very little, and I just thought it was the right thing to do," he owes the corporation $10k (if anyone wants to bother suing).

I'm not confusing the issue. Technically speaking, the directors have two duties: a duty of care, which is quite lenient and enforced by the business judgment rule and a duty of loyalty, which largely acts to exclude self-dealing. I freely concede that, at a certain point, a director's consideration of social impact could rise to the level of a breach of one of these duties. I remain unconvinced that these duties actually extend to the proposition that a director must ignore all social or moral considerations if that would allow the corporation to make an additional nickel in profit. I'm not talking about practical remedies here, I am talking about the theoretical extent of the duties. It's a pretty radical duty you are postulating, and I don't think it naturally emerges from the ways the duties of directors are defined. It's one think to say you have a duty of loyalty and care to your shareholders; it's quite another to say that duty imposes an affirmative obligation to screw others over to the maximum extent possible in order to profit the constituency to which you owe those duties. The latter does not necessarily follow from the former, and absent a citation to some authority actually standing for that proposition, I remain quite skeptical. Again, I'm not saying directors have carte blanche to disregard the economic interests of their shareholders, which I agree is their principal duty; merely that it is tempered by reason in ways you don't seem to acknowledge.

[Anonymous]

TheManWithAUsername wrote:

Anonymous wrote:

TheManWithAUsername wrote:
That's not what the BJ rule says. That's just a burden of proof rule, basically. It makes it harder to prove that a director breached, but it doesn't change the fundamental duty.

The BJ rule makes it harder to show that an action apparently against the shareholder's financial interest in fact was, but if a director announces that he took an action he knew to be against the corporation's financial interest, he admits his breach of fiduciary duty.

Do you contend that a director can, within the law, intentionally sacrifice the shareholders' financial interests to some other cause and not be liable? (Note that this is not the same as a short-term sacrifice, e.g. donating to charity in the interest of PR.)

I suppose that depends on what you mean by "intentionally sacrifice." As I myself said, a director can't just give shareholders' money away to some cause they think is more worthy. (Can't we all agree that is a pretty good rule?)

I didn't hear anyone complain about it.

Anonymous wrote:Could a director say "despite the fact that there is a positive expected return to selling a defective product because the likely profit outweighs the likely adverse tort judgments, we are not going to sell defective products because it is just plain wrong" without running afoul of any principle of corporate law? Absolutely, as far as I know -- feel free to cite something to the contrary, if you think I'm wrong.

You're muddying the issue. Obviously, no one is obliged to violate other laws - including tort law - to meet his/her fiduciary duties. A director doesn't have to illegally pollute or murder anyone, either.

Anonymous wrote:Corporate directors obviously have a duty to act in their shareholders' financial interest, but not, as far as I know, a duty to push that principle to the absolute limit without any consideration of morality or social impact. They have far more discretion than that.

They absolutely do not have the discretion to act in the public good - i.e., to be moral or consider the social impact - to the detriment of their shareholders. They have a duty to their shareholders and no duty, other than as defined by other criminal and civil law, to anyone else. To the degree that they sacrifice the shareholder's interests to those of society or any non-shareholder member of it, they have breached their duty.

As I said above, I think you're confusing their latitude as a matter of proof with discretion over whether to support their shareholders' interests. Let's say a director of a large company authorizes a $10k gift - relatively very small - to a homeless shelter. When questioned, if he says he thought it was good PR no one can go after him b/c he gets the benefit of the doubt. But if he says, "Well, it cost us very little, and I just thought it was the right thing to do," he owes the corporation $10k (if anyone wants to bother suing).

One other point, the universe of acts where ethics may come into play is larger than the charitable donation you posit. In that case, you are dealing with a situation where (1) you are dealing with actually giving away money, which I agree is somewhat problematic and (2) there is more than a whiff of potential self-dealing in terms of using corporate money to advance the personal interests of the relevant director.

[TheManWithAUsername]

[Can you clip the giant quotes, please? I can give you a short tutorial if you want.]

anonymous wrote:I freely concede that, at a certain point, a director's consideration of social impact could rise to the level of a breach of one of these duties. I remain unconvinced that these duties actually extend to the proposition that a director must ignore all social or moral considerations if that would allow the corporation to make an additional nickel in profit.

I think you’ve framed our disagreement well. Note that I understand that as a practical matter no one is going to sue over that nickel, and that if they did the judge would be annoyed enough to summarily toss it. I do contend that it would be a technical violation.

anonymous wrote:It's one think to say you have a duty of loyalty and care to your shareholders; it's quite another to say that duty imposes an affirmative obligation to screw others over to the maximum extent possible in order to profit the constituency to which you owe those duties.

That’s phrased in the most inflammatory way, obviously. The duty is to maximize profit (with discretion over short vs. long terms), regardless of all other interests other than complying with the law.

anonymous wrote: The latter does not necessarily follow from the former, and absent a citation to some authority actually standing for that proposition, I remain quite skeptical. Again, I'm not saying directors have carte blanche to disregard the economic interests of their shareholders, which I agree is their principal duty; merely that it is tempered by reason in ways you don't seem to acknowledge.

Since the nickel profit case will never be brought, I’ll never have that cite at the extreme. But I don’t see why it’s on me to give a cite when it’s a logical conclusion from basic principles.

We agree that the directors have the duty to the shareholder. I assume that you agree that they have no legal duty to be moral other than that expressed in other aspects of the law.

I say that therefore no balancing is allowed, because in balancing the director would be sacrificing the interests of one to whom s/he owes a duty for those of someone to whom s/he owes no duty. That would be violation of a legal duty with no legal reason. Do you see a flaw there?

You say that they can weigh morality and reason* against the duty. Do you have any cite for that? If there’s nothing supporting that kind of balancing, then I consider the basic principle to be universal, therefore applicable even at the extremes.

*I assume you meant “reason” here in the sense of “moral reason.”

[TheManWithAUsername]

BTW: We obviously weren't talking about the extreme case here. The theoretical question was whether Bain was trying to make big beneficial changes. I'm happy to have the academic conversation, though.

[Anonymous]

jsteele wrote:This may be the biggest OWS achievement yet. Newt Gingrich has completely adopted the vocabulary of Occupy Wall Street. Moreover, Rick Perry is right behind him with his "vulture capitalists" talk. Apparently, polling in South Carolina shows Gingrich running neck and neck with Romney after erasing a 10 point Romney lead. It will be hilarious if Gingrich shows that financial inequality has legs in South Carolina. Then, he can open his DC headquarters in McPherson Square.

Newt as a teen

[takoma]

TheManWithAUsername wrote:...
Since the nickel profit case will never be brought, I’ll never have that cite at the extreme. But I don’t see why it’s on me to give a cite when it’s a logical conclusion from basic principles.

We agree that the directors have the duty to the shareholder. I assume that you agree that they have no legal duty to be moral other than that expressed in other aspects of the law.

I say that therefore no balancing is allowed, because in balancing the director would be sacrificing the interests of one to whom s/he owes a duty for those of someone to whom s/he owes no duty. That would be violation of a legal duty with no legal reason. Do you see a flaw there?

You say that they can weigh morality and reason* against the duty. Do you have any cite for that? If there’s nothing supporting that kind of balancing, then I consider the basic principle to be universal, therefore applicable even at the extremes.

*I assume you meant “reason” here in the sense of “moral reason.”

You speak of the duty of the management to the shareholders of Bain. But once they buy up other companies, don't they assume a responsibility to those companies, i.e. to their stockholders and employees?

Also, when you say you are looking for a cite, do you mean a site or a citation? I know people have started to use cite as a noun, but I'm not clear, given that the citation would be at a website, whether it's a new usage or a typo.

[Anonymous]

takoma wrote:

TheManWithAUsername wrote:...
Since the nickel profit case will never be brought, I’ll never have that cite at the extreme. But I don’t see why it’s on me to give a cite when it’s a logical conclusion from basic principles.

We agree that the directors have the duty to the shareholder. I assume that you agree that they have no legal duty to be moral other than that expressed in other aspects of the law.

I say that therefore no balancing is allowed, because in balancing the director would be sacrificing the interests of one to whom s/he owes a duty for those of someone to whom s/he owes no duty. That would be violation of a legal duty with no legal reason. Do you see a flaw there?

You say that they can weigh morality and reason* against the duty. Do you have any cite for that? If there’s nothing supporting that kind of balancing, then I consider the basic principle to be universal, therefore applicable even at the extremes.

*I assume you meant “reason” here in the sense of “moral reason.”

You speak of the duty of the management to the shareholders of Bain. But once they buy up other companies, don't they assume a responsibility to those companies, i.e. to their stockholders and employees?

They never owe a duty to the employees outside of contracts, tort law, employment discrimination law etc. - no general duty to employees.

I don't know this well, but as I understand it "mergers" (a misnomer, really - it's a buyout) usually (always?) result in the shareholders of the bought company owning stock in the buying company, so there would be that same duty. Remember that the fiduciary duty - what we're discussing - isn't a duty to follow their wishes, but to protect and pursue their (financial) interests. Think of them as the trustees of a trust - they must do what they believe is best for the beneficiary, not necessarily what the beneficiary wants.

anonymous wrote:Also, when you say you are looking for a cite, do you mean a site or a citation? I know people have started to use cite as a noun, but I'm not clear, given that the citation would be at a website, whether it's a new usage or a typo.

"Citation." That's probably a law thing - I haven't noticed whether it's in broader use. "Hypothetical" (or "hypo") is also used as a noun.

[Anonymous]

Stockholders yes, but unfortunately employees no.

Labor regulations are employees' only protection.

Of course the stockholders often get screwed despite fiduciary duty. These guys hold debt, which gets paid out in a bankruptcy prior to any return to the common shareholders. So often they are incented to fold a troubled company while it still has cash, where common shareholders would want to push longer for profitability.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

Your penchant for name-calling is incredibly childish and detracts from your post, and your "statistics" are pulled from the air.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

Your penchant for name-calling is incredibly childish and detracts from your post, and your "statistics" are pulled from the air.

Penchant? I don't know who exactly you think I am. However, I think that your party's mad dash to Bachmann - > Cain - > Perry (or was it the other way around?) can only be described as idiotic. If you have a better word for it, let me know because it was apparently clear to you what needed to happen all along.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

Your penchant for name-calling is incredibly childish and detracts from your post, and your "statistics" are pulled from the air.

Penchant? I don't know who exactly you think I am. However, I think that your party's mad dash to Bachmann - > Cain - > Perry (or was it the other way around?) can only be described as idiotic. If you have a better word for it, let me know because it was apparently clear to you what needed to happen all along.

I think tossing words around like "idiot" are not helpful in any kind of discussion. Of course, I can't know that you have a penchant, but there's an abrasiveness about your posts. Bachman, Cain, and Perry were never my personal choices; but I still don't think it's helpful to refer to people as "idiots" and "morons."

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

Your penchant for name-calling is incredibly childish and detracts from your post, and your "statistics" are pulled from the air.

Penchant? I don't know who exactly you think I am. However, I think that your party's mad dash to Bachmann - > Cain - > Perry (or was it the other way around?) can only be described as idiotic. If you have a better word for it, let me know because it was apparently clear to you what needed to happen all along.

I think tossing words around like "idiot" are not helpful in any kind of discussion. Of course, I can't know that you have a penchant, but there's an abrasiveness about your posts. Bachman, Cain, and Perry were never my personal choices; but I still don't think it's helpful to refer to people as "idiots" and "morons."

OK, I get your point. But I find it hard to give these voters the benefit of the doubt. The limitations of these candidates were plain to see. I'm not sure what to call a person who failed to see them repeatedly. Note that I left out Gingrich, because despite his faults he is not an unqualified candidate.

So the point remains that either these people are {insert your favorite term for people who make repeatedly poor choices} or there is a distinct lack of interest in Romney beyond being the candidate of last resort.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:This is all sound and fury, signifying nothing, Mr. Steele. Romney will be the nominee, and the criticisms being leveled now are exactly where Obama was going to go in the general election. I'd say that it might marginally help Romney to get these things out now, except Obama's friends in the media will never treat Bain Capital as old news no matter how many times it has been raised before.

It really may come down to where the unemployment number is in November, with Obama losing at 8% plus, and winning if the unemployment number is lower. In 50/50 nation, every presidential election is kind of touch and go.

If it is so clear that Romney is the nominee, why was it so un-freaking clear to you people for the last six months??!!! You all are just parroting the last thing your conservative handlers tell you.

I, for one, predicted this on this site several times months ago.

So that makes you smart, and conversely the 75% of non-Romney supporters are morons. Because they kept running from candidate to candidate in order to NOT support Romney. I guess if you are willing to accept that 75% of conservatives are idiots, that's fine. OR maybe they won't vote for Romney in the South, in which case you and the pundits will swing 180.

Your penchant for name-calling is incredibly childish and detracts from your post, and your "statistics" are pulled from the air.

Penchant? I don't know who exactly you think I am. However, I think that your party's mad dash to Bachmann - > Cain - > Perry (or was it the other way around?) can only be described as idiotic. If you have a better word for it, let me know because it was apparently clear to you what needed to happen all along.

I think tossing words around like "idiot" are not helpful in any kind of discussion. Of course, I can't know that you have a penchant, but there's an abrasiveness about your posts. Bachman, Cain, and Perry were never my personal choices; but I still don't think it's helpful to refer to people as "idiots" and "morons."

OK, I get your point. But I find it hard to give these voters the benefit of the doubt. The limitations of these candidates were plain to see. I'm not sure what to call a person who failed to see them repeatedly. Note that I left out Gingrich, because despite his faults he is not an unqualified candidate.

So the point remains that either these people are {insert your favorite term for people who make repeatedly poor choices} or there is a distinct lack of interest in Romney beyond being the candidate of last resort.

I'm probably a much more conservative voter than you but actually do agree with your comments questioning why anyone would seriously consider Bachman, Cain, Perry (or Palin!) as a possible president of our country. I don't really like any of our options.