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Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries

Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries

Author: Marc I. Steinberg
Publisher: Oxford University Press
ISBN: 9780197751503
Published In: September 2025
Format: Hardback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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For centuries, directors and officers have been identified as fiduciaries, bearing a legal and ethical duty to act in the best interests of those they represent. However, the liability standards that ordinarily exist are too lenient to be characterized as fiduciary. This misrepresentation is detrimental to the rule of law, contravenes reasonable investor expectations, and impairs the integrity of the financial markets.

Corporate Director and Officer Liability: "Discretionaries" Not Fiduciaries calls for the removal of fiduciary status for corporate directors and officers in favor of the adoption of a new term that provides an accurate description; corporate directors and officers are, instead, 'discretionaries.' This term accurately portrays the status of corporate directors and officers who are held to varying standards of liability depending on the applicable facts and circumstances.

Against this new model, the book addresses a wide range of key issues, including the duty of care, the business judgment rule, exculpation statutes, the duty of good faith, interested director transactions, derivative litigation, mergers and acquisitions, and closely held corporations.

Original and thought-provoking, Corporate Director and Officer Liability offers an alternative framework that enhances corporate governance standards while protecting corporate fiduciaries from undue liability exposure.

1. Corporate Directors and Officers Are "Discretionaries"- Not Fiduciaries

2. Fiduciary Duties in Business Enterprises - A Historical and Contemporary Perspective

3. The Illusion of Corporate Director and Officer Fiduciary Duty - The Duty of Care, the Business Judgment Rule, and Exculpation Statutes

4. The Duty of Loyalty - Far More Bark Than Bite

5. Derivative Litigation - Corporate Directors Are "Discretionaries"

6. Mergers, Acquisitions, and Dispositions - A Semblance of Fiduciary Duty

7. Close Corporations - The Presence (or Waiver) of Fiduciary Duties

8. Rhetoric v. Reality - The Federal Securities Laws

9. Corporate Directors and Officers Are "Discretionaries" - Proposed Standards of Liability

10. The Clear Reality - "Discretionaries" Not Fiduciaries