Corporate Governance and D&O Liability Claims

Overview of the Committee’s Focus:

Errors and omissions claims made against corporate directors and officers, labeled by some as “managerial malpractice,” affect for-profit businesses, non-profit corporations, and charitable organizations from the largest industrial firms to the smallest condominium boards. Economic conditions may generate these claims; the aggressiveness with which these claims are brought before more informed and sympathetic jury panels requires equally aggressive defense responses.

“D&O” claims may be asserted, for example, in situations involving:

• Shareholder Derivative Actions
• Corporate Opportunities Self-dealing
• Corporate Asset Dissipation
• Employment Discrimination
• Securities Class Actions
• Accounting Result Outcomes
• Due Diligence Controversies
• Financial Condition Representations
• Managerial Competence Criticism
• Minority Shareholder Disputes
• Conflict of Interest Disputes
• Trade Secrets Appropriation
• Investment Decision-making

Breach of the director’s or officer’s common law standard of care proof may be alleged by claimant counsel along with breach of fiduciary duty claims and breach of statutory duty claims when things go wrong in corporate governance. The Corporate Governance Claims Committee of the Professional Liability Defense Federation™ works on issues important to this defense constituency. The work may include review of substantive law defenses to these claims, as well as procedural rule and trial advocacy strategies such as e-discovery management, juror animus dilution, use of trial graphics to clarify advocacy, and similar subjects.

Committee members are asked to contribute to article publication, to monitor the PLDF news and respond to member inquiries for assistance, and to assist in annual meeting seminar presentation planning.