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PaperclipPerfector  1yr ago (text post)   29600 thread views

Culture War Roundup for the week of October 2, 2023

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I am quite sure that if you take investor’s money, claiming that you’ll use it for building a shipping business, but then lose it all in Vegas, that counts as a breach of fiduciary duty.

As a matter of company law, the objectives of the company in the articles were almost certainly "make money" and the choice of how to do it was protected by the business judgement rule. If FedEx had been a public company at the time, then it might have been securities fraud. But the rules are much laxer for private companies.

Securities law applies to private companies as well, if you take investments and issue equity. That you make a distinction between public and private companies here suggests to me that you don’t have much idea what you are talking about.

Lots of securities laws only apply to public companies - in the US this includes Reg FD and most of SarbOx. The general pattern is that public companies are required to disclose a lot more information than private ones, with making a false disclosure punishable as securities fraud. A private company that doesn't make a formal disclosure can't commit securities fraud by making a false one.

If I was trying to prosecute a company for gambling shareholders' money in Vegas, I would argue that they had made corporate disclosures which implicitly said they were not gambling shareholders' money in Vegas, and were therefore fraudulent. That is much easier to do with public company disclosures than private company ones (which are basically just the accounts).

I definitely wouldn't argue that it was a breach of fiduciary duty - under the circumstances in the Fedex story that argument would be a loser in both England and Delaware that would definitely lose in court because of the business judgement rule.

I definitely wouldn't argue that it was a breach of fiduciary duty - under the circumstances in the Fedex story that argument would be a loser in both England and Delaware that would definitely lose in court because of the business judgement rule.

I assume, though, that the gambling was done under his own name? If he lost the money in gambling, he might have a tough time proving to a jury that he intended to give the winnings back to the company. He would have to prove that he really was gambling on behalf of the company, rather than embezzling the money to himself and gambling it on behalf of himself, that might be tough to do.

This is a much more reasonable comment.

A private company that doesn't make a formal disclosure can't commit securities fraud by making a false one.

Yes, but this is precisely why I phrased my comment as such:

if you take investor’s money, claiming that you’ll use it for building a shipping business, but then lose it all in Vegas

I simply don’t see how you can argue that spending all funds on gambling in Vegas is just a business decision, anymore than you could argue that spending all investor funds on buying yourself a villa and a Lambo is just a business decision.

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