Tom Feeney: “this motion to recommit clarifies that this nonbinding vote is in fact nonbinding: no court may consider the board's…”

“this motion to recommit clarifies that this nonbinding vote is in fact nonbinding: no court may consider the board's refusal to follow the shareholders' advisory vote as a breach of that board's duties of care or loyalty to the shareholders. It clarifies that although such a vote is compulsory, the result cannot be, and it cannot force a board of directors to act in a way that contravenes its best interest. Mr. Shays offered an important amendment during the markup process to clarify that nothing in this bill imposes any new fiduciary duties on boards that the majority of the committee accepted. However, I am concerned not only about whether this statute imposes new, additional obligations on a board; I am concerned that a court might construe a board's decision to disregard the advice of a shareholders' advisory vote as prima facie evidence of a board's failure to satisfy its existing duties. The chairman has frequently said, ``This bill does not do what this bill does not do.'' I hope he is right, because in the Financial Services Committee hearing and markup, in the Rules Committee, and on the floor, he has stressed that this bill is purely advisory. Rather than hope, though, I offer this motion to recommit in order to be certain and to protect the directors in their discretionary exercise of their duties. If this provision is redundant, that is fine. We do a lot worse here than redundancy.”