Martha Stewart is certainly the most famous director of the
New York Stock Exchange
board. But for the title of most controversial board member, she has a lot of competition.
Among other members serving on the exchange's board are David Komansky, the CEO of
, which paid $100 million to resolve conflict-of-interest issues between its investment banking division and its research department.
Then there's Jean-Marie Messier, the former CEO of
, who resigned under heavy pressure from his own board members. Vivendi dropped sharply Tuesday on worries about its accounting.
Plus, the NYSE's chairman, Richard Grasso, is on the board of two publicly held companies that list on the Big Board, including
, itself no stranger to questions about its bookkeeping.
Stewart has made no indication that she plans to step down from the board of the NYSE while under investigation for selling
stock, and Grasso himself recently came to the aid of his embattled board member.
"Ms. Stewart has both publicly and privately asserted her innocence. This is still America, innocent until proven guilty," he said in an appearance on
"This Week" last Sunday. "If, in fact, the circumstances change, obviously she knows she has an obligation to this board ... to do the right thing."
Stewart has been under fire since reports surfaced that she sold about 4,000 shares of ImClone a day before the
Food and Drug Administration
rejected the biotech company's application for its lead cancer drug. Stewart has said she had an agreement with her Merrill Lynch broker to sell the stock if it went below $60, but proving that the pact existed has been difficult.
Still, for the time being at least, she can legally remain on whatever corporate board she wants, regardless of the various allegations about what she might have known and when.
ImClone's fortunes began to change dramatically in December when the company said the FDA had chosen to reject its application for the experimental cancer drug Erbitux. Stewart, a friend of ImClone's then-CEO, Sam Waksal, unloaded her stake the day before the FDA's decision was made public. Little was made of Stewart and Waksal's relationship until mid-June, when authorities arrested Waksal and charged him with insider trading.
Since then, Stewart has been front-page news as she fights off suggestions of impropriety, and the shares of the company of which she is chairman and chief executive,
Martha Stewart Living
, have plunged. The stock ended the day at $12.60, and that was after a session in which it gained $1.10, or 9.6%.
An NYSE spokesman declined to comment, while a Martha Stewart representative didn't immediately return a call for comment.
Experts, then, are left to debate how Stewart and the NYSE should deal with the situation.
"As far as I am concerned, there is no problem with Martha Stewart continuing to serve on the board of the NYSE while she is under investigation," said Jeffrey Gordon, a law professor at Columbia University. "We still have a presumption of innocence in this country. And I think that is very important."
Others take a different view. "Though I am a lawyer, the question in my mind is not about what is legal, but what is right or wrong," said Jeff Brotman, a law professor at the University of Pennsylvania. "A lot of people have not been trying to protect the integrity of their own investigations."
According to Brotman, the NYSE should clear up the situation to protect its own name. "Maybe, they should offer a statement in support of her, saying 'we believe she is completely innocent but that until this is resolved, it is in our best interest for her to take a leave of absence,' " he said.
In a poll last week,
, a Web site that offers market research and data, asked 500 users if they thought Stewart should resign as an NYSE board member until the ImClone matter is closed. An overwhelming 84.5% of the respondents said yes, while 78% of those polled said they thought the exchange should ask her to step down.
However, Gordon said that unless an enforcement action or formal charges are brought against Stewart, "there is no question about the propriety of her staying. But it's unwise to, on the basis of rumors, suggest the NYSE encourage her to step down."
In any case, the recent corporate scandals involving Martha and others will raise awareness about the makeup of boards of directors.
"I think there will be a greater focus on the composition of boards of directors than there's been in recent years by the broader public," said Paul Maco, an attorney at the law firm Vinson & Elkins. "We'll see attention to it from the public, as well as from legal and academic circles."