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This article examines the federal government's growing use of 18 USC § 1346 to prosecute public company executives for breaching their fiduciary duties. Section 1346 is a controversial but under-examined statute making it a felony to engage in a scheme "to deprive another of the intangible right of honest services." Although enacted by Congress over twenty years ago, the Supreme Court repeatedly declined to review the statute, until now. The questions before the Supreme Court are of particular interest to public company executives and their professional advisors. Traditionally, Delaware law has governed the content and enforcement of executives' legal duties, largely protecting public company fiduciaries from civil liability. Now, with the emergence of honest services fraud as a weapon ...
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The very role of a board of directors in the system of corporate governance is to oversee a corporation's business and affairs, including its management, because numerous dispersed stockholders cannot effectively perform that function on their own. But if directors incurred liability for every misstep they took, or bad decision they made, it would indeed be rare to find a person willing to serve as a director. In Delaware, where the majority of US corporations are incorporated, the hallmark fiduciary duties are the duties of care and loyalty. But if Delaware corporate law is considered the national corporate law, the Sarbanes-Oxley Act of 2002 is perhaps best described as its smash sequel. While competent, good, or best corporate practices vary from circumstance, from company to company...
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In United States v. O'Hagan, the Supreme Court established that there are two complementary theories of insider trading liability, each with a fiduciary principle at its core. Under the "classical" theory, liability is premised on a fiduciary's deceptive silence about material nonpublic information in a securities transaction with corporate shareholders. Under the "misappropriation " theory, liability is premised on a fiduciary's deception of the source of the material nonpublic information used in the securities transaction. This Article analyzes the law of insider trading, with a focus on developments since O'Hagan. Based on a comprehensive review of lower-court decisions, settled enforcement proceedings, and rules promulgated by the Securities and Exchange Commission, it argues that...
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Additional time ensures strongest possible protections for retirement savers, business owners WASHINGTON, Sept. 19, 2011 /PRNewswire-USNewswire/ -- The U.S. Department of Labor's Employee Benefits Security Administration will re-propose its rule on the definition of a . Consistent with the president's January executive order on regulation, the re- proposal is designed to inform judgments, ensure an open exchange of views and protect consumers while avoiding unjustified costs and burdens. When finalized, this important consumer protection initiative will safeguard workers who are saving for retirement as well as the businesses that provide retirement plans to America's working men and women. The decision to re-propose is in part a response to requests from the public, including ...
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The doctrine of corporate fiduciary obligation -- which holds that corporate officers and directors are fiduciaries of the corporation and its shareholders and are disciplined primarily through the enforcement of fiduciary duties -- has been the core basis of all corporate law. The officers and directors of a corporation do not own the corporation or its assets. Instead, they manage them for the benefit of the corporation's investors. Corporate and securities laws and practice increasingly reveal a distrust of management and a growing assumption that they will hold self interest paramount within the bounds of the law. Corporate governance is evolving to accommodate those changes in the beginning premises about what corporate managers are and how they are supposed to serve the firm. By c...
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WASHINGTON, June 23, 2011 /PRNewswire-USNewswire/ -- The Financial Planning Coalition (FPC) today delivered a letter to the Securities and Exchange Commission (SEC), accompanied by a petition signed by more than 5,200 financial planners, urging the SEC to apply a fiduciary standard to anyone providing personalized investment advice to retail clients. The full letter can be found here and below. The Coalition appreciates the leadership you have shown in your support of a fiduciary standard for advice provided to retail investors. We are deeply concerned that current regulations governing the delivery of personalized investment advice are insufficient to protect investors," the Coalition stated in its letter to the SEC, which was also sent to members of Congress.
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This paper shows how a close examination of the law of trusts, charitable as well as private, throws useful light on the law of corporations, both for-profit and nonprofit. Trinitarian theory accounts for both the presence of dead hand control in private and charitable trusts and its absence in business organizations. Part II identifies the duty of obedience in three basic steps. First, and most importantly, it shows how the duty of obedience underlies the duties of care and loyalty. Next, it distinguishes two forms of the duty of obedience, the strong and the weak. Part II locates these two forms of the duty of obedience, the strong and the weak, in four kinds of fiduciary relationships: for-profit corporations, private trusts, charitable trusts, and charitable corporations. Part III c...
