Caremark

The Legitimation of Shareholder Primacy

By Ann M. Lipton February 27, 2025 by renholding

We are living in a particularly polarized era, and corporate governance is no exception.  The divisions have threatened to spill over to Delaware, the preferred jurisdiction for incorporation in the United States, with several high-profile cases calling the state’s neutrality …

Delaware Vice Chancellor Travis Laster Says Bill Barr Could Use Some Help on Delaware Law

By Travis Laster December 7, 2023 by renholding

The universe regularly provides reminders to remain humble, including reminders that having expertise in one area does not make you an expert in adjacent areas. Former Attorney General Bill Barr recently provided one of those reminders with his opinion column

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To Whom Are Caremark Duties Owed?

By Ann M. Lipton October 3, 2023 by renholding

A while ago, the National Center for Public Policy Research – a conservative organization that focuses its advocacy in the corporate and securities space – filed a lawsuit against Starbucks, arguing that its diversity equity and inclusion program ran

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Substance and Process in Corporate Law

By James An September 12, 2023 by renholding

Corporate law – and judicial application of that law – considers two facets of a transaction: (1) whether a corporation’s management used processes that are fair to stockholders to reach its decision (“process”), and (2) whether the economic results of …

Compliance’s Next Challenge: Polarization

By Miriam H. Baer September 7, 2023 by renholding

Last year marked the 20^th anniversary of Congress’ enactment of the Sarbanes-Oxley Act, legislation that arose in response to Enron’s demise and the accounting scandals that followed, and which coincided with the successful and much-heralded prosecution of a …

The New Corporate Law of Corporate Groups

By Mariana Pargendler May 22, 2023 by renholding

Large firms today are rarely organized as a single legal entity, but rather as corporate groups with numerous subsidiaries that have separate legal personalities. A debate has long raged over how to treat the legal boundaries between companies belonging to …

Operational Risk and the New Caremark Liability for Boards of Directors

By Robert C. Bird and Julie Manning Magid March 30, 2023 by renholding

In a new article, we identify a subtle and unrecognized shift in Caremark[1] cases that changes how the Caremark doctrine actually works. Caremark claims, which accuse corporate directors of breaching the fiduciary duty of loyalty by not making a …

Mayer Brown Discusses Five Steps for Directors to Consider About Risk Governance

By Matt Bisanz, Andrew Noreuil, Jodi Simala, Bill Kucera and Megan Webster February 7, 2023 by renholding

Historically, directors have been protected from personal liability in connection with risk management by the high standard set in the seminal 1996 Caremark[1]case. In recent years, however, courts have held that certain plaintiffs have pled facts sufficient to …

Debevoise & Plimpton Discusses Delaware Chancery Decision Allowing Caremark Claim Against an Officer

By Susan Reagan Gittes, Gregory V. Gooding, Elliot Greenfield, Maeve O'Connor and William D. Regner January 31, 2023 by renholding

In a January 25, 2023 decision (In Re McDonald’s Corp. S’Holder Litig., C.A. No. 2021-0324-JTL (Del. Ch. Jan. 25, 2023)), the Delaware Court of Chancery declined to dismiss claims that a corporate officer, who led the company’s human …

How Directors’ Oversight Duties and Liability under Caremark Are Evolving

By Jennifer Arlen October 13, 2022 by renholding

Corporate law prohibits companies from pursuing profits through criminal misconduct. It uses the fiduciary duties imposed on boards under the Caremark doctrine,[1] and the threat of personal liability of directors for deliberate breach, to help motivate directors to make …

Sullivan & Cromwell Discusses Delaware Decision on Caremark Liability for Cybersecurity Failure

By Nicole Friedlander, Tony Lewis, Bob Downes, Brian Frawley and John Hardiman September 27, 2022 by renholding

On September 6, 2022, in Construction Industry Laborers Pension Fund on behalf of SolarWinds Corporation, et al. v. Mike Bingle, et al. (“SolarWinds”),[1] the Delaware Chancery Court granted a motion to dismiss a derivative suit against directors …

Mission Critical ESG and the Scope of Director Oversight Duties

By Roy Shapira June 2, 2022 by renholding

How can shareholders hold directors accountable for paying insufficient attention to the broader interests of society? In the past few years, several ESG issues have become a source of major risk for companies and their shareholders. Even if the behavior …

Max Oversight Duties: How Boeing Signifies a Shift in Corporate Law

By Roy Shapira March 21, 2022 by renholding

In September 2021, the Boeing 737 Max debacle turned into an important moment in corporate law. A Delaware court allowed a derivative lawsuit brought by Boeing shareholders to proceed, based on the theory that Boeing’s directors breached their oversight duties …

Skadden Discusses Recent Delaware Chancery “Caremark” Decisions

By Edward B. Micheletti, Bonnie W. David and Ryan M. Lindsay December 23, 2021 by renholding

In 1996, the Delaware Court of Chancery issued its seminal decision in In re Caremark International Inc. Derivative Litigation,1 establishing the conditions for director oversight liability under Delaware law. Adopted a decade later by the Delaware Supreme Court in Stone …

The Board of Directors’ Duty of Oversight and Cybersecurity

By Eduardo Gallardo October 28, 2021 by renholding

Over the last several years, cyberattacks, including from foreign state actors, have affected thousands of companies and government agencies. Past corporate victims include Yahoo!, Home Depot, and LinkedIn. And the real world consequences of a cyberattack became vivid to the …

Weil Gotshal Discusses Boeing Decision and Board Oversight of Product Safety Risks

By Stephen A. Radin and Joshua Glasser September 20, 2021 by renholding

The Delaware Court of Chancery’s recent decision denying a motion to dismiss in In re The Boeing Company Derivative Litigation, 2021 WL 4059934 (Del. Ch. Sept. 7, 2021), reminds directors and their counsellors of the importance of board and …

Wachtell Lipton Discusses Boeing’s MAX Woes in the Boardroom

By Edward D. Herlihy and William Savitt September 14, 2021 by renholding

In an important decision this week, the Delaware Court of Chancery permitted a Caremark duty-of-oversight claim to proceed against the directors of the Boeing Company.  Stockholder plaintiffs sued Boeing’s board, seeking to recover costs and economic losses associated with the …

Don’t Compound the Caremark Mistake by Extending It to ESG Oversight

By Stephen M. Bainbridge August 24, 2021 by renholding

Since the foundational decision in In re Caremark Intern. Inc. Derivative Litig.,[1] Delaware corporate law has required boards of directors to establish reasonable legal compliance programs. Although Caremark has been applied almost exclusively with respect to law and …

Sidley Austin Discusses Delaware Chancery’s Latest Guidance on Caremark Claims

By Andrew W. Stern and Charlotte K. Newell January 28, 2021 by Nisha Chandra

The Delaware Court of Chancery provided its latest guidance on so-called Caremark claims in a New Year’s Eve opinion issued by Vice Chancellor Glasscock in Richardson v. Clark, an action brought derivatively by a stockholder of Moneygram International, Inc. …

What to Do About Poor Corporate Governance at Unicorns

By Amy Deen Westbrook January 18, 2021 by renholding

Why are large private companies often characterized by poor corporate governance?  WeWork provides a recent high-profile example.  For reasons that now seem implausible, WeWork attracted billions of investment dollars.  Perhaps it was the company’s “vision” or the sheer personality of …