The title of this post refers to the thought-provoking book by former BP executive, Christine Bader, The Evolution of a Corporate Idealist: When Girl Meets Oil. I will save a review for next week in Part 2 of this post. Briefly, Bader discusses the internal and external struggles that she and other “corporate idealists” face when trying to provide practical, culturally appropriate, innovative ways to implement corporate social responsibility and human rights programs around the world. Much of what she said resonated with me based upon my years as a compliance and ethics officer for a multinational corporation and as a current consultant on these issues.

Like comedian/TV commentator John Oliver, I am torn about the World Cup and the significant power that soccer/futbol’s international governing body FIFA has over both Brazil and its residents. His hilarious but educational rant is worth a close watch, and I experienced the conflict he describes firsthand during my two recent trips to Salvador, Brazil. I went to watch what the rest of the world calls “the beautiful game” in a country where soccer is a religion. That’s not an exaggeration by the way– I bought a statuette of a monk holding a soccer ball in a local cathedral. The monk had a place of honor in the display case right next to the rosaries. The Cup has political consequences as well — if Brazil doesn’t win the Cup at home, politicians will feel it in Fall’s election.

Trip one to Brazil was purely for pleasure with sixteen aficionados to experience one of the world’s most diverse and beautiful cultures while catching two matches. Because I have spent the last couple of year’s researching and writing on business and human rights, when the US team advanced to the quarter finals, I took advantage of my frequent flyer miles, hastily organized some meetings with human rights activists that I had never met, snagged a ticket to the US v. Belgium match, and spent three days mixing business with pleasure.

I had done my homework of course (see e.g. this on the money aspect, this petition to vote for the worst sponsor, this on police response to protestors, and this from David Zirin on Brazil’s actions with the World Cup and Olympics). I also knew that FIFA, the nonprofit with a one billion dollar reserve, pays no taxes to the host country. Indeed, while FIFA will earn several billions in profit from the 2014 Cup, Brazil will have spent over ten billion to host. Luckily Brazil loves soccer, but as you may have seen on the news, protests have erupted in the major cities about the perceived broken promises from the government to the people. The infrastructure, schools, hospitals and other projects have not materialized as promised. And while FIFA only requires eight stadiums for a World Cup, Brazil inexplicably built twelve. The Manaus Stadium in the middle of the Amazon cost $250 million and there is no soccer team there. At least the Salvador stadium, which cost $350 million to tear down and rebuild, can host its two teams as well as some of the soccer for the 2016 Olympics. The favelas where the poorest residents live are in clear view of the luxurious new facility in Salvador because they are within walking distance.

For the privilege of hosting the Cup, Brazil agreed to suspend its 2003 law banning alcohol in stadiums so that Budweiser could sell beer; institute World Cup courts to fast track convictions; exempt sponsor companies from some taxes; and establish exclusion zones 2 kilometers around FIFA-designated areas so that no local vendors can sell their wares—this in a country that is at the bottom 10% on the world for income inequality.

A few hours after I landed, I met with an organizer of the some of the protests in Salvador, Brazil’s third largest city. The next day I met with an activist for the homeless in the office of the Public Defender for Human Rights. Despite government funding, the Public Defender and activist communities in Salvador work closely together to address human rights abuses. I learned the following, among other things. Over 250,000 people throughout Brazil were displaced for the games, many with no compensation. Salvador, a city with over 4,000 homeless, only developed housing for 200 families despite knowing about the games for seven years. Homeless people who did not move when told were harassed by the police. If the harassment didn’t work, police confiscated their documentation and/or clothing and destroyed them. If that didn’t work, street cleaning trucks bombarded them with soap and water as though they were trash. Through the joint efforts of the Public Defender and activists, this activity, which started last September, largely stopped.

I also learned that religious groups can protest against abortion and drug use in exclusion zones but those protesting against FIFA must secretly hand out pamphlets in groups smaller than three people to avoid detection, arrest and jail time (sometimes charged as “terrorists.”). FIFA established almost a dozen agencies to ensure that the Cup went smoothly but most locals have experienced nothing but serious disruption. Hundreds of vendors who had eagerly staked out spaces to sell to tourists were banned and the government gave them no place else to go. People have died and suffered serious injury as FIFA has pressured the Brazilian government to complete projects on time. Although protestors have not focused on them, others have raised questions about the environmental impact of the Cup.

Sony, Johnson & Johnson, Budweiser, Coca-Cola, and McDonald’s — all key sponsors paying upwards of a minimum of $10 million– tout their corporate social responsibility programs so I have the following ten questions about the business of the World Cup.

1)   Is FIFA, the nonprofit corporation, really acting as a quasi-government and if so, what are its responsibilities to protect and respect local communities?

2)   Does FIFA have more power than the host country and will it use that power when it requires voters to consider a bidding country’s human rights record when awarding the 2026 Cup as it has suggested?

3)   If Qatar remains the site of the 2022 Cup after the various bribery and human rights abuse investigations, will FIFA force that country to make concessions about alcohol and gender roles to appease corporate sponsors?

4)   Will/should corporate sponsors feel comfortable supporting the Cup in Russia in 2018 and Qatar in 2022 given those countries’ records and the sponsors’ own CSR priorities?

5)   Does FIFA’s antidiscrimination campaign extend beyond racism to human rights or are its own actions antithetical to these rights?

6)   Are the sponsors commenting publicly on the protests and human right violations? Should they and what could they say that has an impact? Should they have asked for or conducted a social impact analysis or is their involvement as sponsors too attenuated for that?

7)   Should socially responsible investors ask questions about whether companies could have done more for local communities by donating to relevant causes as part of their CSR programs?

8)   Are corporations acting as “bystanders”, a term coined by Professor Jena Martin?      

9)   Is the International Olympic Committee, a nonprofit, nongovernmental organization, taking notes?

10)  Do consumers, the beneficiaries of creative corporate commercials and  viral YouTube videos, care about any of this?

I have thoughts but no answers to my questions and will spend my summer on these corporate responsibility issues. I definitely don’t envy the corporate idealists working for any of these sponsors.

 

 

Building on Elizabeth Pollman’s list, I have compiled post-opinion posts on Burwell v. Hobby Lobby by corporate law professors.  I imagine this list is incomplete and am happy to update the list.

Stephen Bainbridge (UCLA) (here, here, and here)

Lawrence Cunningham (George Washington) (here and here)

John Fershee (West Virginia)

Kent Greenfield (Boston College)

Sarah Hahn (Idaho)

Joan Heminway (Tennessee)

Lyman Johnson (W&L and St. Thomas-MN)

Elizabeth Pollman (Loyola-Los Angeles)

Brian Quinn (Boston College)

Usha Rodrigues (Georgia)

Anne Tucker (Georgia State)

Thanks to all for the interesting posts.  I am sure there will be more to come, followed by a flurry of articles in the fall and spring cycles.  Looking forward to reading more. 

Earlier this week I asked Professor Lyman Johnson if he would care to share his thoughts on the Hobby Lobby case with us because I had so enjoyed his thoughtful posts on the Conglomerate before the decision was issued (see here and here).  Professor Johnson’s contribution is below.

———

             I thank the good folks here at the Business Law Prof Blog for inviting me to share some thoughts about the Supreme Court’s decision in the high-profile Hobby Lobby cases.  The Court held that a closely-held business corporation was a “person” under the Religious Freedom Restoration Act (RFRA), that such a for-profit corporation could indeed “exercise religion” under that Act, and that as applied to closely-held corporations the contraceptive mandate promulgated under the Affordable Care Act violated RFRA.  Two days after the controversial decision, the sky has not fallen, although dire forecasts to that effect still abound.  My post today makes a simple but basic point:  quite apart from the decision’s implications for religious liberty in the corporate realm – no small thing, to be sure – and notwithstanding the still unfolding legal and political fallout, Hobby Lobby immediately became a landmark decision in which the Supreme Court spoke in unprecedented fashion to an issue going to the very foundation of corporate law, the question of corporate purpose.

            Let’s begin with the notion of freedom, or liberty.  The Court ruled that RFRA protected the free exercise rights of close corporations and of those humans who own stock in and control those companies.  [Note:  human beings are routinely described in their “corporate” capacity in the majority opinion; the “corporation” is emphasized throughout]  In this way, the Court protected the “negative liberty” of those “corporate” persons, freeing them from the constraint of the federal contraceptive mandate.  But where exactly, from a legal vantage point, did the corporations’ “positive liberty” to “exercise religion” even come from?  Not from RFRA, which protects only against substantial governmental burdens on the exercise of religion.  Even though RFRA includes (via the Dictionary Act) a “corporation” within its definition of “person,” it does not itself affirmatively empower corporations.  The answer is that, as with all corporate attributes, this capacity to exercise religion is endowed by state corporate law. 

            The federal government did not – it could not – dispute the legal origins of corporateness as being rooted in state law.  And the U.S. failed to convince the Court that corporations as such cannot exercise religion because, let’s face it, our nation is full of churches and other religious bodies where religion quite obviously is being exercised in and through the corporate form.  But the Court also rejected the government’s attempted distinction of for-profit corporations from their non-profit counterparts because the Court rebuffed the government’s underlying view that “the purpose of such [for-profit] corporations is simply to make money,” stating that this position “flies in the face of modern corporate law.”  This is where the Hobby Lobby opinion pries open the very heart of corporate law. 

            Justice Alito, for the Court, rejected the view that business corporations must (and do) singularly act to make money, even as he acknowledged making profits to be “a” (not “the” or “sole”) objective and one that is “central.”  A few gems here:  “[M]odern corporate law does not require for-profit corporations to pursue profit at the expense of everything else and many do not do so.”  “[I]t is not at all uncommon for such corporations to further humanitarian and other altruistic objectives.”  “Not all corporations that decline to organize as nonprofits do so in order to maximize profits.  For example, organizations with religious and charitable aims might organize as for-profit corporations…”  Alito then notes that “the objectives that may properly be pursued by the companies in these cases are governed by the laws of the states in which they are incorporated…”  Given the breadth of objectives that can be pursued under state corporate law, it was easy for the Court to conclude that corporate liberty extended to “the pursuit of profit in conformity with the owners’ religious principles.”  This liberating principle was pointedly germane to the Hobby Lobby case itself, as Alito cited to the record wherein the owners of that corporation calculated they lose millions of dollars annually by closing on Sundays – precisely because of religious beliefs.  Doing so, that is, sacrificing profits, the Court ruled, is permitted and altogether proper under corporate law.  Too bad former Chancellor William Chandler did not have the benefit of Alito’s recent primer when Chandler wrote the deeply-flawed eBay v. Craigslist decision in 2010.

            To hold that close corporations were “free” from the contraceptive mandate of the Affordable Care Act, because of RFRA, the Court thus had to determine that, under state corporate law, such companies are likewise “free” from some imagined state legal mandate to maximize profits.  Readily concluding that corporations clearly do have the liberty not to maximize profits, the Court concluded that, as a legal matter, they were necessarily “free” to exercise religion.  But critically, that means business corporations, being free in this respect under state corporate law, can pursue a whole host of objectives other than making money.  Those objectives include various humanitarian, social, and environmental objectives of the sort progressives have long championed.  As one who for decades has favored a vision of corporations (and corporate law) as being utterly conducive to serving broad social purposes – as freely determined, of course, by the appropriate corporate decisionmakers – and as one who supported Hobby Lobby, I found it odd to see these companies opposed by so many corporate progressives.  When one advocates for freedom on the corporate purpose front, just as is the case on the free speech front, one fights for those with whom one may disagree.  Remember here Voltaire and his “I do not agree with what you have to say, but I will defend to the death your right to say it.”  But take comfort:  although progressives lost the Hobby Lobby battle, they gained (accidently) an ironic victory on the all-important corporate purpose war.

            On the other hand, those in the corporate law academy who think corporate law mandates strict profit maximization now have a formidable judicial foe, and one that dwarfs the puny authority of Dodge v. Ford Motor Co. or eBay:  i.e., the U.S. Supreme Court.  Time to change the syllabus on corporate purpose…  To those on the right who favored Hobby Lobby (me) but who also favor the now-discredited position that corporate law requires profit maximizing (not me) take note:  you won the battle on religious freedom but to do so you had to suffer a major setback on corporate purpose.

            Finally, this case shows me that those who seek corporate reform may do so either from progressive impulses or from religious impulses, and from the left or the right of our political and theoretical spectrums.  The Hobby Lobby decision should, in that respect, ultimately be seen as a unifier for those in corporate law with reformist goals, not as a divider.

            My longtime colleague and collaborator, David Millon, and I, who typify these two quite different reformist impulses, respectively, will have much more to say on this vital subject in an article now in the works….

FOR ACADEMIC EYES ONLY (practicing readers may be deeply offended by my self-indulgence)

By my count we are in week 7 (out of 12) of “summer”–the time between graduation and when the fall semester resumes.  We are more than half-way through this shimmering mirage, this beacon of hopeful productivity, balance, and reprieve.  All year long, I think, THIS summer I will……  And now this THIS summer is here, I am feeling concerned about all that hasn’t been tended to at work or at home. At least not yet.  (And it isn’t for lack of trying–75 exams graded, 3 conferences attended, 1 article draft complete, 3 unexpected child illnesses, and 1 empirical study bogged down in the details.)

This is a common refrain of conversations had with fellow academics. It all goes by too quickly and with self-imposed pressure to make the most of it professionally (write two articles for August submission!) and personally (go on exotic travel adventure with family!).  By my personal count, I am failing on both fronts.   While this is a unique schedule for academics, I think that the promise of summer lures most people from all walks of life into an unrealistic vision of this time that is inevitably filled with the juggling act of travel and work and family and fun.  So with 5-6 weeks left, I am taking stock of my writing expectations (maybe that short piece won’t get finished THIS summer) and re-prioritizing because I want to feel good when I walk back into the classroom on day 1. Mostly, I just want to avoid feeling like this:

Summer_Fun_Time-Blog

-Anne Tucker

The following is a contribution from guest blogger Sarah Haan, Associate Professor of Law at the University of Idaho College of Law.

Business law professors no doubt felt relief yesterday when the news media corrected course and stopped distilling Hobby Lobby into a sound bite about “family-owned” corporations.  The three corporations challenging the Affordable Care Act in the case – Conestoga, Hobby Lobby, and Mardel – happen to be family-owned, but the majority opinion, penned by Justice Alito, was careful to articulate its holding as applying to “closely held” corporations, of which family-owned corporations are just a subset.

Commentators (like the Business Law Profs Blog’s Anne Tucker) have noted that the Court’s failure to define what it meant by “closely held” is significant.  By using the ambiguous phrase, and by suggesting that the opposite of a closely held corporation is a “publicly held corporation,” Justice Alito was opening the door to RFRA free exercise claims by a wide range of companies, the vast majority of which will bear no likeness to mom-and-pop businesses.  Generally, a “closely held” corporation is one that has a “small number” of shareholders (ALI Principles of Corporate Governance), or, under an alternate theory, one in which the identity of owners and managers is “substantially identical.”  Importantly, there is no consensus about how many shareholders a “closely held” corporation can have.  Under Delaware law, a statutory “close” corporation (a subset of closely-held corporations) can have as many as 30 shareholders.  Under Maryland law, there is no limit.  “’Closely held’ is not synonymous with ‘small,’” Justice Ginsberg rightly pointed out in her dissent.

But there is more to Justice Alito’s slight-of-hand than the murky distinction between a “closely held” corporation and a “family-owned” one.  The government argued that giving corporations free exercise rights under RFRA will lead to religious battles among shareholders that distract from the economic objectives of the corporation.  In a paragraph that echoed the majority’s discussion of the “mechanisms of corporate democracy” in Citizens United, Justice Alito explained why shareholders’ religious disagreements are little cause for concern:

The owners of closely held corporations may – and sometimes do – disagree about the conduct of business.  And even if RFRA did not exist, the owners of a company might well have a dispute about religion.  For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons.  State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure.  Courts will turn to that structure and the underlying state law in resolving disputes.

In this paragraph, the Court acknowledges that shareholders in a closely held corporation might not have the same religious views, but assumes that such a corporation can still exercise a religion under RFRA.  All shareholders at each of the three corporations in Hobby Lobby held the same set of religious views, but nowhere does the Court suggest that this is a requirement of RFRA personhood. To the contrary, this passage reveals that the Court does not mean to limit corporate religious exercise to only those closely held corporations whose shareholders all agree about religion.  In fact, the Court anticipates that shareholders of companies exercising a religion under RFRA will have religious disputes, and it views the mechanisms of state corporate law as the proper means for sorting out those disagreements.

And here’s the rub:  The most basic principles of state corporate law allow a controlling shareholder to, well, control the corporation.  So what the Court has really decided is that a single controlling shareholder, or a sub-group of shareholders with voting control, can make religious exercise decisions for the corporation, even over the objections of minority shareholders.  Because that is how state corporate law resolves intra-corporate disputes.

In other words, the sincerely-held religious beliefs of a closely held corporation may just be the sincerely-held religious beliefs of its controlling shareholder.

Continue Reading Guest Post: Closely Held Means “Controlling Shareholder”?

So, the Hobby Lobby decision is out.  I wrote my thoughts here and here after oral arguments, and I think the court got this wrong.  Not the concept, but the execution. 

Rather than try to rehash what is now done, I will pose a different question: How does one reconcile this religious exercise with the profit-seeking mandate that the Delaware court imposes from time to time.  As Chancellor Chandler noted in eBay v. Newmark (more here):

The corporate form in which craigslist operates, however, is not an appropriate vehicle for purely philanthropic ends, at least not when there are other stockholders interested in realizing a return on their investment. 

Note that “purely” is not an entirely accurate modifier here.  Craigslist made a profit and had some ventures that raised money.  They just did not monetize the majority of the endeavors

So what about an entity that operates for purely religious ends? Hobby Lobby and those similarly situated seem to be saying that religion trumps profit (see, e.g., Chik_Fil-A closing on Sundays).  This is not the argument that our business model is stronger because of our choices, which I have argued before should be protected, but this is saying we choose religion over profit. 

As Chancellor Chandler noted in eBay, if there are no shareholders to complain, then perhaps it is not an issue.  Still, as soon as a shareholder disagrees, will decisions such as limiting healthcare options (thus limiting the talent pool for employees) or closing on Sunday?  It seems to me the Hobby Lobby decision has opened the door for several fiduciary duty fights down the road. 

Can a corporation now choose to give a majority of its funds to a church, even if it harms the entity?  I think no, but I hope, for the sake of businesses everywhere, the Court did not just create a First Amendment out to such fiduciary duties.

Today, the body of former Senator Howard H. Baker Jr. lay in repose across the street from my office in the building that houses the academic center benefacted by and named after him.  (The building itself also bears his name.)  His coffin, draped elegantly in the American flag, is a reminder of a political era essentially gone–but not forgotten (at least by me). 

Senator Baker was a distinguished alumnus and benefactor of The University of Tennessee and the College of Law.  Our main rotunda on the first floor of the law building is named for him.  I dropped by today at the Baker Center for Public Policy to say goodbye to this revered statesman.  I did not make the trip across the street to pay my respects primarily because he was a UT alumnus or benefactor–or even because I knew him (although we shook hands and chatted pleasantly at least once that I can remember) or knew any member of his family.  I went because I deeply admire him and what he did with his public life.  He was the kind of guy–known as “The Great Conciliator”–who exhibited political patience, valued compromise, and didn’t let party politics or ideology stand in the way of what he knew in his gut was right.

In the obituary published by the American Bar Association in the ABA Journal, the following quote caught my eye:

“We are doing the business of the American people,” Baker said in a 1998 speech to members of Congress, explaining his philosophy of government. “And if we cannot be civil to one another, and if we stop dealing with those with whom we disagree, or that we don’t like, we would soon stop functioning altogether.”

Of course, the last bit stings a bit in light of the recent government shutdown.  But . . . doing the business of the American people.  Hmm.  This part of the quote reminded me of the public fiduciary arguments that Donna Nagy raises in her 2011 Boston University Law Review article entitled “Insider Trading, Congressional Officials, and Duties of Entrustment.”  A great read, for those who haven’t yet set aside the time.

However, the quote also made me think about Senator Baker’s engagements over the years with legal issues impacting businesses.  He was certainly pro-business, but he also fought for environmental protection and civil rights, among other things, even when those issues appeared, at least in the short term, to be a net negative for businesses.  What, then, would Senator Baker have said about today’s decision in Hobby Lobby?  Well, we’ll never know.  But I will take a few guesses, and those who knew him or know his politics better than I can feel free to question and correct my prognostications.

Continue Reading Reflections on Howard Henry Baker Jr. and the Politics of Hobby Lobby