By: Cassidy Eckrote
What image comes to your mind when you think of a Board of Directors? Let me guess—old, white men. Unfortunately, most boards looked that way not too long ago. But thanks to legal progress and social awareness, companies are taking strides to diversify the composition of their boards.
The murder of George Floyd in 2020 sparked national outrage. Amid public protests, companies issued statements condemning racial inequity and vowed to stand in solidarity with the Black community. While many of these promises went unfulfilled, Nasdaq-listed companies had to put their money where their mouth was.
Nasdaq Board Diversity ruLE
In August 2021, the U.S. Securities and Exchange Commission (SEC) approved Nasdaq’s new listing rules about board diversity. The rules apply to most Nasdaq-listed companies and require affected companies to:
1. Have, or publicly explain why they do not have, at least two diverse directors, and
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- To meet this requirement, the company must have at least one female director and at least one director who identifies as an underrepresented minority or LGBTQ+
2. Publicly disclose the diversity statistics of its board on an annual basis
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- Companies should use Nasdaq’s standardized disclosure matrix to satisfy this requirement.
Although the above requirements apply to most Nasdaq-listed companies, exemptions exist based on the type of entity or size. Notably, companies with five or less directors are only mandated to have one diverse director. Nasdaq published a helpful FAQ to provide additional details on how to comply with the board diversity rule. Nasdaq also compiled a tool kit to assist companies in recruiting diverse candidates.
sTATE dIVERSITY ruLES
In addition to the Nasdaq rules, companies must also be cognizant of their state’s board diversity laws. For example, public companies incorporated in Washington must have a board comprised of at least 25% females. And in Maryland, all business entities (not just publicly traded companies) with revenues over $5 million must disclose board diversity in their annual reports. Legislatures continue to recognize the importance of board diversity, so companies and their attorneys must stay up-to-date on pending and forthcoming legislation.
bENEFITS OF bOARD dIVERSITY
Implementing a diverse board has countless social and economic benefits. Below are a few advantages to consider when assessing whether your business should diversify the composition of its board.
Strengthen Business Relationships & Public Perception
Now more than ever, the public is paying attention to the behind-the-scenes operations of companies. The “Me Too” and “Black Lives Matter” movements demonstrated that this generation of consumers and investors are not simply concerned about the products or services a company is selling. Consumers and investors now demand gender, racial, sexual, and ethnic representation, and refuse to support companies that fail to meet these standards. This holds true for small and large companies alike. Whether or not the board diversity requirement applies to your business, it is wise to implement a diverse board to survive in the competitive business landscape.
Improve Company Operations & Promote Effective Decision Making
The benefits of a diverse board extend far beyond a favorable public image and strengthening relationships with investors and customers. A board with varying backgrounds, including race, gender, age, ethnicity, and sexual orientation, enhances the company’s operations. If everyone in the room shares similar qualities, their thoughts and viewpoints are more likely to align. Rather than developing an innovative solution, the group is likely to stick to the status quo. This concept is often referred to as “groupthink” and leads to decisions being made without critically assessing alternative solutions. Diversity combats the negative effects of groupthink by supporting differing viewpoints and perspectives. Diverse boards are more likely to discover, and subsequently address, challenges or risks within the company.
Increase Profitability
Research shows that companies with diverse boards experience greater financial performance and pay higher dividends than homogenous boards. Remarkably, companies with diverse boards are 43% more likely to have above-average profits.
Bolster Company Culture
The benefits of having a diverse board of directors will trickle down into all facets of the business. The board is the governing body and thus sets the tone of the company’s culture. Board diversity will lead to recruiting and retaining more diverse leaders, which will translate into more diverse mid and lower-level employees. The practice of fostering an inclusive culture will increase employee satisfaction.
Takeaway
Although companies are taking steps to diversify their boards, women and minority groups continue to be underrepresented in the boardroom. Women comprise just 30% of S&P 500 board members, with ethnic/racial minorities representing only 21%. Your company can become part of the solution by making a conscious effort to recruit and hire diverse candidates.
This post has been reproduced and updated with the author’s permission. It was originally authored on March 21, 2023 and can be found here.
Sources:
Https://corpgov.law.harvard.edu/2020/07/14/maximizing-the-benefits-of-board-diversity-lessons-learned-from-activist-investing/.
Nasdaq Final Rule 5605(f); https://listingcenter.nasdaq.com/rulebook/nasdaq/rules/nasdaq-5600-series
https://listingcenter.nasdaq.com/assets/Board%20Diversity%20Disclosure%20Matrix.pdf
https://www.jdsupra.com/legalnews/sec-approves-nasdaq-s-board-diversity-9963032/
https://corpgov.law.harvard.edu/2022/06/22/meeting-expectations-for-board-diversity/#:~:text=In%20August%202021%2C%20the%20U.S.,their%20failure%20to%20meet%20the .
https://www.accaglobal.com/us/en/student/exam-support-resources/professional-exams-study-resources/strategic-business-leader/technical-articles/diversifying-the-board.html#:~:text=1.-,More%20effective%20decision%20making,benefits%20are%20further%20elaborated%20below.
https://www.linkedin.com/pulse/20141209150556-218468992-risky-business-homogeneous-boards-a-disadvantage-in-today-s-business-world/
https://www.forbes.com/sites/karstenstrauss/2018/01/25/more-evidence-that-company-diversity-leads-to-better-profits/?sh=5b553f481bc7
https://www.praxonomy.com/blog/the-impact-of-board-diversity-on-company-performance/.
Chaz Brooks, For More Black Corporate Directors and Fewer Corporate Opinions Excusing Their Absence (forthcoming).
When people think of Delaware … let’s face it, people don’t think of Delaware. But it is the business world’s best-kept secret. About 65% of Fortune 500 companies are incorporated in Delaware (e.g., Amazon, Google, Tesla, etc.). This is no mere fluke. The state boasts a business-friendly climate and extensive body of corporate law. And here’s the kicker: no corporate income tax. Setting up a company in Delaware is so streamlined, that it is home to more than 1.8 million companies—more than the number of Delaware residents! Which is surprising, considering the state has no sales tax, investment income taxes, inheritance taxes, or personal property taxes. A nondescript office building that spans less than a city block in Wilmington, Delaware, is the official incorporation address of more than 285,000 global companies! Notably, you do not have to live in Delaware to incorporate a company in Delaware. Also, a Delaware physical address is not required as long as you retain a Delaware registered agent for your Delaware corporation or LLC.
The predictability of the Delaware court system is a boon for companies—business issues are predictable because of the Delaware Court of Chancery. This forum is the nation’s preeminent corporate court. It is responsible for developing the case law on corporate matters because its judges are experts in corporate law (no juries in this court!). The Court of Chancery handles matters in equity, and focuses on corporate issues, trusts, estates, other fiduciary matters, disputes involving the purchase of land and questions of title to real estate, as well as commercial and contractual matters. The average civil lawsuit can span several years, but with judges who specialize in corporate law and the lack of juries, along with primacy of corporate-related cases, means that similar cases can be decided 
Delaware is considered a tax haven because of its unparalleled tax savings. If your company is incorporated in Delaware, but you conduct business out of state, there is no state income tax. There is also no inheritance tax on stock held by non-Delaware residents. Additionally, there is no state sales tax on intangible personal property (like royalty payments). Also, non-residents who own shares of stock in Delaware corporations are not subject to Delaware taxes. Some companies, however, avoid their in-state income tax by establishing subsidiary or shell companies that hold various intangible assets but do not directly run business operations.
Did you know that you can conduct same-day business filings in Delaware? The incorporation process can take less than an hour! You can find filing forms and fees 
Size matters. Small businesses do not get significant tax savings—you do not get to avoid taxes outright. Delaware does not tax companies incorporated in the state that do not do business there, but you are still responsible for taxes imposed by your home state. Your company will also have to pay the Delaware franchise tax on its shares’ value, but this could be minimal compared to the income taxes your home state may charge. Albeit minimal for small businesses, franchise taxes are subject to increases based on the number of shares and improved value. You may also need to pay a franchise tax in your home state. If you plan on conducting business in another state, you still need to satisfy your state’s filing and licensing requirements for conducting business there (Delaware registered agent 
In sum, the key advantages to incorporating in Delaware are tax benefits, privacy, expediency, simplified structure, and predictability in corporate law. Delaware offers convenience to companies who incorporate within the state, but said benefits are primarily geared towards large corporations. If you have a small business, you should carefully weigh the additional costs involved against the benefits of incorporating in Delaware. But if you structure your company properly, you will reap the privileges of being a Delaware corporation.
One of the principal inter-related aims of antitrust law is the prevention of the collectivization and concentration of market power and the protection of consumer welfare. A brief and highly simplified review of basic economic theory may be helpful here. Market structures exist along a continuum. A monopoly structure-single seller-occupies one extreme pole while perfectly competitive market-many sellers- occupies the other. Ideally, with limited exceptions, the perfectly competitive market structure is preferred because prices are at equilibrium; the price that buyers and sellers are willing and able to trade absent any market impediments. The equilibrium price implies that if a seller attempted to set a price above this level, they would lose sales and revenue, thus becoming unprofitable. A seller in this market is a price taker. In contrast, the monopolist has market power or the ability to influence prices and set a price significantly above the competitive equilibrium thus increasing their profits. This has the deleterious effect of reducing output and creating a deadweight loss. A deadweight loss is a loss in potential economic activity as a segment of buyers can no longer participate in the market.
Although market power alone does not constitute a violation, it’s a significant factor in conjunction with other actions. Other potentially illegal actions include but are not limited to predatory pricing/bidding, boycotts/refusals to deal, vertical integration-price squeezing, vertical restraints-price ceiling/floor, tying-exclusive dealing-bundled discounts. The scope of anti-trust law in regulating business conduct is broad. Anti-trust law is not exclusively limited to the mergers & acquisitions of fortune 500 companies trading shares on wall street. It can have important implications for a small business operating on main street. In fact, several significant landmark cases involved businesses operating at a regional or local level (Aspen Skiing Co. v. Aspen Highlands Skiing Corp (1985)). It’s important to remember that operating one’s establishment in a way that’s unfair to competitors or consumers is a potentially losing strategy. It’s recommended that business owners have some familiarity with anti-trust legal principles especially as their business continues to grow. A good first step is to review the FTC’s Guide to Anti-trust Laws which can be accessed through the link below.