at 119-23; 135 n.487. He does, however, catalog what he characterizes as the
three “most salient” examples of a failure to act in good faith: (1) “where the
fiduciary intentionally acts with a purpose other than that of advancing the best
interests of the corporation”; (2) “where the fiduciary acts with the intent to
violate applicable positive law”; and (3) where the fiduciary intentionally fails to
act in the fact of a known duty to act, demonstrating a conscious disregard for his
duties.” Id. at 124-25.
Although none of the directors was found to have breached his or her fiduciary duties, the Chancellor repeatedly noted in his 174-page Opinion that the directors failed to satisfy corporate best practices. The Chancellor seized the opportunity to explain not only why the plaintiffs’ proof failed, but also what the Disney directors could have done better, in part “because of the possibility that the Opinion may serve as guidance for future officers and directors, not only of the Walt Disney Company, but of other Delaware corporations.” Id. at 5.
Presumably, by recognizing the errors of the Disney officers and directors and following the Chancellor’s guidance directors may avoid arming derivative suit plaintiffs with facts that allow them to adequately plead a claim for failure to act in good faith. As stated by the Chancellor, below are things that various Disney directors could have done better.
Eisner’s “Machiavellian (and imperial) nature as CEO” made him responsible for many of the “failings in process that infected and