This article proposes specific standards of ex-post judicial review, arguing that courts should limit the application of the review of business decisions to dividends in shares on a pro rata basis, which should proportionally multiply the number of the same class of shares that each shareholder owns and preserve the relative voting power of each class (i.e., dividends in shares in the class), but dividends in different shares in companies at two levels. who distribute the same class of shares to all shareholders (i.e., inter-class dividends) without collective voting rights, under increased judicial oversight. Tier 1 43 corporations (18.14%) have provisions limiting the right of directors to pay dividends on cross-shares, but with one exception: prior shareholder approval through a separate class vote. Following a paragraph prohibiting the issuance of cross-share dividends by boards of directors, a paragraph follows: Crown corporation laws largely delegate the right to declare and pay dividends to directors, but also allow shareholders to oversee dividends by restricting directors` discretion in corporate charters.186 Any corporation can determine the degree of discretion of the board. administration in the declaration and payment of dividends by establishing its corporate charter and adjusting a dividend policy to take into account unique circumstances. On the 14th. In May 2018, the board of directors of CBS Corporation (“CBS”), one of the largest national media companies, proposed a special stock dividend to its shareholders.1 Although the board`s proposal to distribute a dividend to shareholders was hardly surprising, the effect of the proposed dividend was.2 CBS, as a company with two classes of common shares, had two classes of common shares, Classes A and B, and only the first held voting rights.3 National Amusements Inc. (“NAI”) held most of the voting shares and controlled approximately 79.7% of the voting rights, while holding only approximately 10.3% of the economic interest in the Company.4 Although the distribution of voting shares to all shareholders proposed by the CBS Board of Directors would not change the economic interests of CBS shareholders, including those of NAI, it would significantly dilute NAI`s voting rights from approximately 80% to approximately 20%.5 The Board of Directors argued that the proposed special dividend was a “necessary step to protect the Company and its economic majority shareholders”. 6 The diversity of charter regulations shows that companies have different views and needs with respect to dividends in inter-class shares and proactively exercise the contractual freedom to design charter provisions that meet their needs.176 Variety itself is not problematic and this article is not intended to prevent the use of dividends in interclass shares. Rather, this article argues that dividends in unilateral inter-class shares of boards of directors are not “pro-rated” dividends and should therefore not be subject to a profit-abiding review unless shareholders approve them in advance.
The following section explains why voting by separate class is a more efficient approval mechanism for inter-class share dividends. For example, if a corporation has two classes of shares, Class A with low votes and Class B with high votes, there are at least three options for structuring a dividend in shares: (1) dividends in Class Shares, where Class A Shares are distributed to Class A shareholders and Class B Shares are distributed to Class B shareholders; (2) dividends on inter-class shares, where Class A shares are distributed to Class A and Class B shareholders, or (3) dividends on inter-class shares, where Class B shares are distributed to Class A and Class B shareholders. Forty-three of the 237 companies in the sample (18.14%) have a charter provision that requires class voting for different share dividends. Twenty-five of the 43 companies (58.13 percent) are registered in Delaware,182 and the collective voting requirement is generally combined with a general prohibition on dividends on interclass shares.183 A typical class voting provision states that: (b) shares of one class or series may not be issued as a stock dividend for shares of another class or series unless (1) the articles approve it (2) a majority Votes that may be cast by the class or series to be issued approve the issue, or (3) there are no outstanding shares of the class or series to be issued.160 As noted above, directors have a wide discretion in paying dividends, but discretion is not unlimited.