[B]y most traditional standards — federal law, Delaware courts, best practices — the likelihood of personal liability for officer or board service may seem remote. Now you may need to suffer through years of headaches, angst, depositions, reputational challenges and jousts with the insurance carrier. You may be forced to resign from other boards. These soft tissue costs are very real. Ultimately, though, you will get off the hook. That’s the conventional thinking. Well, [Responsible Corporate Officer Doctrine] is unconventional. It is extreme. It is more than a bit unfair. It is a credible fiduciary liability risk for officers and directors of health care companies. You cannot have a real discussion about officer-director liability profiles without recognizing the risk of an expanded application of R.C.O.D. And that’s a real liability worry.
‘Enforcement 40’ for 2020
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