What is fiduciary duty? #FixTheRules

During the COVID-19 crisis, many of the largest corporations in the U.S. turned a profit despite a challenging economic environment.

Who benefitted?

Their shareholders, who continued to receive dividends and increasing share prices.

Who didn't?

Thousands of their employees who were laid off.

These corporations chose the financial well-being of their shareholders over the livelihoods of their employees.

But were these corporations in the wrong?

According to the concept of fiduciary duty — a legal principle that states corporations are beholden to the financial interests of their shareholders first — they did the right thing, even though it had an adverse effect on the lives of many.

The next crisis — climate change — is already happening. Will fiduciary duty get in the way of meaningful climate action?

A corporation is an agent of capital on behalf of a principal: its shareholders. It takes the investments of shareholders in the hopes of generating a financial return on that investment.

A corporation has a fiduciary duty to its shareholders, so it's legally obligated to focus on financial return. Shareholders can take legal action against the corporation if they believe the corporation has placed other interests ahead of their financial return.

What happens when environmental, social, and governance (ESG) issues affect investment decisions?

Although interpretations can vary over time from jurisdiction to jurisdiction, fiduciaries generally can only consider ESG factors if they help or at least don't hurt the financial return of the underlying assets or investments.

An investor might want to put their assets towards an ethical activity. But if that activity can potentially lose money for the investor, what should their financial advisor do?

Let's look at some scenarios that put you in the shoes of someone with a fiduciary duty.

You're a fund manager representing a large U.S. pension fund that holds stock in a large coffee chain.

The chain is facing a shareholder resolution that asks it to begin using fully recyclable materials going forward.

The cups are slightly more expensive but reduce the massive environmental waste caused by single-use cups. This initiative will reduce shareholder returns but create significant long-term benefits for society.

Your client has the right to vote on the resolution and have entrusted you to vote on their behalf.

You are a fund manager who is deciding whether or not to buy shares in a company based in North Dakota with a large carbon footprint.

You’re not sure whether or not you should invest.

On the one hand...

Carbon emissions contribute to climate change and harm the planet.

Business leaders repeatedly claim that businesses can and will reduce their footprints voluntarily because it’s in their own long-term interests.

On the other hand...

You’re legally obligated to focus on shareholder return.

There’s currently no penalty for emitting carbon into the atmosphere. If regulators apply a carbon tax, this will eat into profits and become a poor investment.

Just as you’re about to make your decision, the government announces that it will delay the carbon tax for a few years, and likely price it far below what economists and climate activists are recommending.

For a fiduciary, what feels like the right thing to do might actually be the wrong thing to do according to law.

If an investment benefits society but reduces shareholder value, someone acting as a fiduciary generally has no choice but to put shareholder value (profit) over society's values (purpose).