Can an Excessive Compensation Case Survive a Business Judgment Rule Challenge?

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By Cydney Posner

If it survives at all, this case might be worth watching. This Bloomberg article reports on arguments heard in In re the Goldman Sachs Group Inc. Shareholder Litigation in the Delaware Chancery Court. Counsel for plaintiff Southeastern Pennsylvania Transportation Authority argued that Goldman's compensation plan unfairly rewards the investment bank's employees at shareholders' expense, that Goldman "is being run for the benefit of employees rather than shareholders," and that the firm's compensation system is wasteful and rewards employees for taking risks that hurt the firm's stock price, such as the creation and sale of CDOs that resulted in Goldman's paying a $550M settlement with the SEC. According to the article, Goldman has lost $50 billion in market value since 1999 while the company has paid out billions in compensation, including $19 million to CEO Lloyd Blankfein for 2010. His compensation was almost double the prior year's award and included a $5.4 million cash bonus, even though Goldman's profits fell. The derivative suit against the Goldman directors seeks to hold them "responsible for the firm's flawed pay plan and for not properly overseeing the company's employees." The author reports that Goldman's counsel argued in response that it is not the role of the courts to decide how much risk a firm should take or how much compensation its employees should be paid. As I said, if this case survives at all, it should be interesting.

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