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California s statutes requiring that publicly held corporations have a minimum number of female directors and directors from underrepresented communities rely upon the individual s self identification. Cal. Corp. Code §§ 301.3(f)(1) & 301.4(e)(1). Self-identification seems to leave the question entirely up to the individual. However, the self-identification standard raises concerns about potentially liability under the securities laws for allegedly opportunistic or unproved identifications.
First, although self-identification may be regarded simply as an opinion, an opinion may be false if it is not sincerely held. It is conceivable, for example, that some potential board candidates will insincerely identify themselves as female or members of an underrepresented community in order to obtain board positions. Such an insincere self-identification could be actionable under the securities laws because the stat
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