by Andrea Unterberger for The Harvard Law School Forum, May 28th, 2011.
It would be natural to start this 2011 Foreword with a précis of the many dramatic regulatory developments newly affecting directors of publicly traded corporations beginning in 2011. Those changes, are, in fact, important to review and are summarized below. But with so much attention understandably focused on external requirements and pressures, it might be better to start first with a less highlighted and yet more central topic — namely, you, the director.
At the end of the day, the recent reforms deservedly catch headlines because they shift or channel some of the regulatory tides buffeting governance activity. But at the beginning of each day, the ability of the board to address those issues while running a successful business depends on you and your fellow directors. This suggests that we begin with recent developments concerning how you inform yourself as a director, how you deal with hidden burdens of the directorship, and how, as this Handbook describes in detail, you undertake the collectivity of tasks and human interactions, practices and rituals that together comprise what I call the anthropology of the boardroom.
F.1 Informing Yourself — Getting the Message at the Right Time and in the Right Place
The information that directors receive in preparation for board or committee meetings, at meetings and between meetings is now largely conveyed electronically by e-mail and attachments. Some corporations have gone paperless, transmitting materials solely via e-mail and/or on secure websites, and even issuing directors iPads (or the equivalent) on which to view that content. For inside directors who are members of management, this protocol involves little change and is essentially a seamless transition from part paper/part electronic to all “e.” But for outside directors, there are several risks which should be identified and avoided.
While paper documents can be mailed to a chosen physical address, protected from review by others, and secured from inadvertent or advertent misuse, electronic documents may not offer the same safeguards. (continue reading… )