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It is not uncommon that when a corporation makes a decision that results in a loss for the corporation that stockholders will be unhappy. In some cases, stockholders may well sue the board for the lack of propriety of the decision leading to the loss. However, absent some indicia of a violation of the duty of loyalty, such claims are a very thin reed upon which to rest one's litigation hopes. Oftentimes, plaintiffs will advance a theory that directors violated their duty of good faith due to inadquate oversight of the corporation leading to a nonexculpable loss. In one such case, Caremark, the court noted the good faith theory advanced by the plaintiffs “is possibly the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment.”
Following the financial crisis of 2008, plaintiffs brought a series of claims against the major banks alleging directors failed in their oversight obligations of the banks leading to catastrophic losses. Citigroup demonstrates just how difficult it is for plaintiffs to win on this legal theory.EDIT PLAYLIST INFORMATION DELETE PLAYLIST
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|1||Show/Hide More||Stone v. Ritter|
|2||Show/Hide More||In re Citigroup Inc. Shareholder Derivative Litigation|
In the wake of the Financial Crisis of 2008, stockholders were rightly upset. Boards of corporate America took what in hindsight appear to have been excess risk and helped push the entire economy to the brink of collapse. The case that follows, Citigroup, is typical of the derivative claims brought following the financial crisis. In essence, the plaintiffs argument is that the defendant board mismanaged the company and missed obvious signs (‘red flags') that things were heading in the wrong direction.
Stockholders seek to hold directors accountable for the resulting failure in corporate performance. These claims are a version of “Caremark” oversight claims. Though rather than charging directors with missing misconduct of corporate officers, plaintiffs are charging directors with taking on excessive business risk. Remember, such claims must take the form of derivative claims. Consequently, plaintiffs must plead demand futility. This opinion is an opinion on a Rule 23.1 motion to dismiss.
June 14, 2016
Brian JM Quinn
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