The California Political Contribution Case That 19 Law Professors Missed

Earlier this week, I wrote about an amicus curiae brief submitted by 19 law school professors Friedrichs v. Cal. Teachers Ass’n, a case now pending before the United States Supreme Court.  In particular, I questioned whether these academics properly described the holding Finley v. Superior Court, 80 Cal. App. 4th 1152 (2000).  The professors claimed that the case represented a “rare example” of a

Did 19 Law Professors Get The Business Judgment Rule Wrong?

In yesterday’s post, I wrote about the amicus curiae brief filed by 19 law school professors in Friedrichs v. California Teachers Ass’n, a case now pending before the United States Supreme Court.  Being a California corporate lawyer, I was interested in the following description of a California Court of Appeal case: A rare example, in which the

Nevada’s Business Judgment Rule: FDIC – 4; Management – 0

In recent weeks, the U.S. District Court has issued four separate rulings in cases brought by the Federal Deposit Insurance Corporation (FDIC) against former bank managers for breach of fiduciary duty.  Here is a brief recap of these decisions: In FDIC v. Delaney, 2014 U.S. Dist. LEXIS 90147 (July 2, 2014), the FDIC asserted claims against two former directors

Nevada’s Duty Of Care Standard Fails To Win Summary Judgment For Director

NRS 78.138(1) imposes two explicit duties on directors in the exercise of their powers: they must act in good faith and with a view to the interests of the corporation.  This contrasts with Delaware case law which speaks of a triad of duties comprised of care, loyalty and good faith, with good faith standing a bit

When It Comes To Director Compensation Claims, Nevada And Delaware Are Fundamentally Different

Since 1969, there has no question that directors of a Delaware corporation have the authority to set their own compensation.  8 DGCL § 141(h).  Having authority to do something, however, doesn’t mean that the use of that authority won’t be challenged, as was illustrated by newly appointed Chancellor Andre G. Bouchard’s ruling last month in Cambridge Ret. Sys.

Another Federal Judge Spurns Application Of The Business Judgment Rule To Officers

Last week, I covered the choice of law issue in FDIC v. Faigin, 2013 U.S. Dist. LEXIS 94899 (C.D. Cal. July 8, 2013) and promised more, When The Parent Is A Blue Hen And The Subsidiary Is A 49er, What Law Governs? Faigin is one of many cases brought by the Federal Deposit Insurance Corporation against officers and directors of

Officers And The Business Judgment Rule

Recently, I came across the following assertion: First, other than the recent aberration of Poggetto v. Switzer , the BJR has never been applied to officers in California. Stephen P. Wiman, Thomas D. Long, and David J. Farkas, The Calif. Business Judgment Rule: Does it Apply to Corporate Officers and What Are the Insurance Implications if It Does

Court Of Appeal Finds Error In Refusal To Give “Business Judgment” Instruction To Jury

Justice Russell C. Ostrander: “judges are not business experts.” Dodge v. Ford Motor Co., 204 Mich. 459, 508 (1919)  A few days ago, I wrote about U.S. District Court Judge Dale S. Fischer’s refusal to extend the business judgment rule to officers.  See Is FDIC v. Van Dellen California’s Smith v. Van Gorkom?  Judge Fischer’s decision

Is FDIC v. Van Dellen California’s Smith v. Van Gorkom?

Last Friday, the jury in FDIC v. Van Dellen (C.D. Cal. Case No. CV 10-4915 DSF (SHx)) returned a verdict totalling nearly $169 million against three former officers of the home builder division of IndyMac Bank, F.S.B.  The Office of Thrift Supervision closed the bank in 2008.  As the receiver for the bank, the Federal Deposit Insurance Corporation filed

District Court Refuses To Apply Business Judgment Rule To Claims Against Officers


Since 2008, a total of 38 banks have failed in California (See this list of failed banks).  When this happens, the Federal Deposit Insurance Corporation acts as receiver for the bank.  Since the FDIC is also an insurer of the failed bank’s deposits, it has an interest in pursuing directors, officers and professionals who were involved in