Trial court erred when it granted appellees motion for summary judgment regarding appellants claim for breach of fiduciary duty. Appellant failed to meet his burden of proof regarding evidence necessary to pursue corporate officers of appellee in their individual capacities. Judgment reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.
. Background. Decisions made by officers and directors of corporations typically have not s... unless that decision violates a specific duty imposed on the officer or director. On the other h...Fiduciary Duties. Directors and officers owe what are termed...
The first part of Surging Deepening Insolvency Claims: Increased Risks for Managers, Advisors, and Lenders of Troubled Companies summarizes the state of the law and practice with respect to the "deepening insolvency" theory and sets forth some important considerations for practitioners. In many ways, the deepening insolvency theory appears to be simply a natural evolution of the existing duty of care and "zone of insolvency" case law. Several cases have defined "deepening insolvency" as the "fraudulent prolongation of a corporation's life beyond insolvency, resulting in damage to the corporation caused by increased debt." It is not clear whether and, if so, how the "deepening insolvency" theory is different from the law applicable to claims of breach of fiduciary duty actions against of...
..., courts have held that directors and officers of insolvent corporations become "trustees" for th...
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 ...
..., has demanded prosecution of corporate officers and directors for any crimes that contributed to t... courts reason, the defendant must owe some duty to provide honest services to some person who has ...
Most lenders and advisors in the world of workouts and distressed companies believe that pursuing a reasonable and consistent course of conduct, protecting one's collateral position, and giving a borrower a continuing chance to survive are the foundation of a prudent approach to a workout. But in recent years, court decisions and commentators have described a new potential tort liability known as "deepening insolvency," causing officers, directors, advisors, attorneys and lenders to pause and question their traditional approach to workouts. A claim against a lender on the theory of deepening insolvency may take several forms. A more troubling concern is that deepening insolvency is a lower and vaguer standard for liability, and might arise in the absence of traditional elements of a len...
... knowingly participated in breaches of fiduciary duties by Exide's directors who took actions favor... and directors do not owe a fiduciary duty to creditors. However, in what may be considered a...
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