Navigating the Murky Waters of Derivative Lawsuits

After listening to both of my favorite podcasts, BG2 Pod and All In, discuss the recent ruling in the Elon Musk case, I was inspired to delve deeper into the complex world of derivative lawsuits and the notorious practice of ambulance chasing. These legal strategies, while designed to safeguard shareholder interests, also spotlight significant inefficiencies within our capital markets, potentially distorting the playing field for investors and corporations alike.

Derivative Lawsuits and Ambulance Chasing

Derivative lawsuits, initiated by shareholders against corporate insiders like executives or directors who have allegedly failed in their duties, are meant as tools for shareholder activism to address internal mismanagement and protect the corporation. However, their complexity often leads to misuse. Known as "ambulance chasing," this practice involves targeting companies suffering from setbacks to launch lawsuits for quick settlements, exploiting these situations more for profit than genuine governance reform.

The Case of Elon Musk and Tesla

Elon Musk's recent experience with Tesla underscores the implications that derivative lawsuits can have on corporate governance and investor relations. A Delaware judge recently decreed that Musk's $56 billion compensation package from 2018 be rescinded, raising questions about the fairness and integrity of its approval process. This lawsuit, initiated by a shareholder with just nine shares, argued that the compensation plan was excessively large and its goals misleadingly portrayed as difficult to achieve.

This sets an unbelievably bad precedent not only for current founders and CEOs but also for future ones. The incentive structure in this case could not have been more aligned for everyone involved. Elon asked to be compensated solely in stock, contingent on the company achieving very ambitious milestones. This is the exact type of incentive structure that we want to see in all companies. If he delivers, the shareholders benefit tremendously. The fact that a judge can come in and retroactively change the terms of a contract that was agreed upon by all parties is a dangerous path to go down. This encourages more of the same old fortune 500 executives who buy back stock and take on debt to hit short-term objectives. Pardon the informal take, but... These execs are boring!!! They never do anything interesting that creates long-term value for the company. If you look at a company like Ford you will see that they have been doing this for years and it has not worked out well for them.

Stop Making Things Harder for Founders

The last thing we need is to make it more difficult for founders to build companies. The odds are already stacked against them. It is disheartening to see that individuals who are trying to build the future are being undermined by those merely seeking quick profits. We should encourage more people to take risks and start companies, rather than creating additional mental hurdles for founders to overcome.

The Impact on Capital Markets

These lawsuits significantly undermine efficiency within capital markets by diverting resources from productive activities. Each dollar spent on litigation is a dollar not used for innovation, employee development, or shareholder returns. Furthermore, the threat of litigation can discourage companies from pursuing bold initiatives that might lead to substantial long-term advancements, stifling both innovation and progress.

Although derivative lawsuits serve as crucial mechanisms for addressing real corporate misconduct, their frequent misuse reveals deeper systemic inefficiencies. These legal strategies, when manipulated, can distort the competitive landscape and hamper economic growth. Stakeholders must understand these dynamics and actively push for reforms that discourage frivolous lawsuits while strengthening mechanisms for genuine corporate accountability. This shift will guide public companies away from defensive legal stances and towards true economic and ethical leadership.