Director Liability for Corporate Crimes: Lawyers as Safe Haven?

Abstract

As corporations become ever more subject to regulatory and legal controls, the fines and penalties assessed against them, already running to billions per year, are growing. Some observers, in the spirit of law and economics, have even suggested a kind of "doctrine of efficient crime" (analogous to "efficient breach" in contracts) to justify boards in allowing such violations. In any case, the directors’ potential liability to reimburse these fines and penalties to the corporation will be an increasingly tempting target for derivative attorneys and will make directors increasingly vulnerable.

While a board of directors cannot directly monitor or prevent most violations by corporate personnel, it can do so indirectly, by means of information and reporting systems and controls. To the extent that these monitoring and oversight systems are not perfect, however, derivative plaintiffs will be motivated to seek reimbursement from the directors.

In derivative suits brought for reimbursement of fines and penalties, the directors’ best line of defense will be to show they have made a genuine attempt to assure reasonable information and reporting systems and controls. In some states such as Delaware, moreover, directors will be fully protected if they rely on the advice of counsel. As a result, corporations will be practically required to intimately involve lawyers in the process of creating and operating legal and regulatory compliance controls. Lawyers will provide safe haven.

Keywords: corporations, directors, derivative actions, corporate crime, regulatory compliance, good faith, externalization of costs, fiduciary duties, duty of loyalty, duty of care, business judgment rule, oversight, shareholder derivative suits