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January 18, 2005

Harvard Prof not impressed with Enron directors' settlement

Lucian Bebchuk is a professor at Harvard Law School and a co-author of Pay Without Performance: The Unfulfilled Promise of Executive Compensation. In this NY Times op-ed, Professor Bebchuk takes dead aim at the recent Enron directors' settlement and he does not like what he sees:

With Enron, the failure of the board had disastrous consequences, leading to the second largest bankruptcy in American history and shaking investor confidence. It is difficult to envision a stronger case for imposing a meaningful financial penalty on directors. Yet the settlement fails to do so.

The settlement hardly heralds a new era in which directors who fail to act in shareholders' interests pay the price. If even Enron's board members are treated this gently, then other corporate directors can rest easy.

Professor Bebchuk has a point, but it's a bit simplistic. The main mitigating factor in the Enron directors' settlement is Enron's liberal D&O insurance policy, which is the primary source of funding for the settlement. In the absence of such a liberal policy, plaintiffs' lawyers would hold out for larger contributions of personal assets from individual directors, such as occurred in the directors' settlement in the Worldcom case, where the directors' contributed 20% of their non-exempt net worth.

After Enron, Worldcom and other corporate scandals, liberal D&O policies are rare and more costly. Without that hedge to the risk of director liability, the risk to outside directors has racheted up considerably, as this recent WSJ ($) article reflects. So, it would appear that the market indications are quite contrary to Professor Bebchuk's conclusion that outside directors can "rest easy" with regard to their risk of director liability.

Posted by Tom at January 18, 2005 9:05 AM |

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