2 Management duties and liability
2.1 Duties and liability of American directors and officers
2.1.1 Internal management liability
2.1.2 External management liability
2.1.3 Enforcement of liability
2.2 Duties and liabilities of German directors and officers
2.2.1 Internal management liability
2.2.2 External management liability
2.2.3 Liability of supervisory boards
2.2.4 Enforcement of liability
2.3 Major differences between the American and German liability systems
3 Historical development of DO insurance
3.1 Historical development in the United States
3.2 Historical development in Germany
4 Reliability and risk of abuse of the liability cover provided by DO insurance policies
4.1 Reliability of DO insurance
4.2 Conflicts of interest and the friendly assertion of claims
4.2.1 Jurisdictional clause
4.2.2 Termination clause
4.2.3 Publicity clause
4.2.4 Individual abuse clause
4.2.5 Major shareholder exclusion
4.3 Balance sheet function of DO insurance
Directors' and officers' liability under American and German law and the liability cover furnished by insurers
In the face of growing influence on the part of shareholders, stricter court rulings, an increasingly comprehensive catalogue of obligations and an enhanced entitlement mentality, managers are increasingly addressing the issue of the risk of personal private and public law liability. Parallel to this, the corporate environment has undergone dramatic change. In times of the globalization of the markets and heightening competition far‑reaching decisions need to be made under ever‑increasing pressure of time. In this connection, extensive austerity measures, restructuring operations, stock market quotations, purchases and sales of companies and new accounting rules, etc. constitute considerable risk sources. The typical sanction for inappropriate conduct on the part of managers was the termination of their employment contracts. Otherwise, there was an unspoken code of honour to the effect that in the event of inappropriate conduct on the part of established executives their personal assets should not be on the line. As is evident from business magazines virtually every week, this scenario has undergone a marked change. Against this background it is not surprising that the number of claims for compensation which are lodged against executive officers and members of executive and supervisory boards has been on the increase for a number of years.
Directors' and officers' (DO) insurance as a type of professional indemnity insurance for managers, insurance which has long since become obligatory for lawyers, tax consultants and auditors, covers these heightened liability risks to which managers of public limited companies are exposed. DO indemnity policies are fairly commonplace, particularly at larger public companies and those which conduct business activities in the United States. This line of insurance has boasted growth of unprecedented dimensions. Not only that, given that the number of claims was on the rise and that the existing legal protection insurers cover the contestation costs but not the actual financial losses which are incurred, an end was not in sight.
However, the increasingly cost‑intensive and numerous DO liability cases which were materializing ultimately prompted the insurers to introduce appropriate countermeasures in order to avoid being forced to withdraw from this class of insurance altogether. Thus, for example, it could not be ignored that the high‑profile Philipp Holzmann scandal on its own entailed payments by DO insurers in excess of € 19 million and that the ENRON scandal alone triggered a total of fifty lawsuits. Many insurers are now endeavouring to minimize their losses by means of premium increases and payment cuts. Only a few liability insurers are currently able to post profits. At the end of the day, the great uncertainty prevailing in the DO insurance sector is documented by the fact that even the world’s largest insurance companies, such as CHUBB Corporation and AIG, constitute loss reserves solely for the DO class of insurance to the amount of several hundred million US dollars. However, in the view of the insurers, one risk which should not be underestimated is the risk of fraudulent collusion by the involved parties to the detriment of the insurer, on the one hand, and the declining level of prudence on the part of company managers, on the other, which, while attributable to the existence of liability cover from DO insurers per se, is understandable.
In the following it is intended that the compact field of DO liability should be depicted from the viewpoint of the liability cover provided by insurers in the United States and Germany. In this connection, in the first instance the prevailing liability situations and the judicial enforceability of indemnity claims in these two countries are depicted and the major differences elaborated. For the purpose of rendering comprehensible the aim, object and requirements of the DO insurance policies which are currently available, this is followed by a thorough examination of the history of DO covers in the United States and Germany. Finally, the above‑mentioned “abuse risk“ and “indifference of officers“ aspects are examined in greater detail and the means available to the insurers pinpointed. This paper concludes with a summary of its findings.
2 Management duties and liability
The DO liability insurance which is available in Germany today is strongly influenced by American DO insurance. Given their model function, the terms and conditions of insurance which were developed for the American market have a major bearing on the product which is marketed by German insurers. For this reason, the American legal system, the resulting liability situation of managers and the possibility of availment are explained below, ultimately also for the purpose of facilitating an assessment of the applicability of American experiences to the German DO market. There are considerable differences between American and German corporation law, the details and entirety of which cannot be illustrated in this paper. Consequently, only those aspects are addressed which are of relevance with regard to American and German DO liability.
2.1 Duties and liability of American directors and officers
In the first instance, pride of place should be given to the most important difference between German and American corporation law, the reason being that the so-called two‑tier system, i.e. the management functions of, on the one hand, the board of directors, and, on the other, the supervisory board, on which employees are represented, is completely alien to American corporation law.
In addition, a uniform corporation law applying to all federal states does not exist; however, an overview is simplified by the fact that the majority of companies in the United States were founded in the states of Delaware, New York and New Jersey, since it is here that company foundation and management activities are most thoroughly deregulated. In addition, when elaborating their corporation law most federal states utilized the 1959 Model Business Corporation Act as a guideline. As a result, American corporation law has experienced a certain degree of systematization.
In principle, like its German counterpart, American stock corporation legislation distinguishes a three-part management structure:
- Board of directors
- Executive officers
- Shareholders' meeting.
The board of directors is the executive organ which is responsible for management, the elaboration of business policy and the appointment of executive officers. However, the members of the board of directors also control the management organs. The board of directors represents the company in all matters, is elected by the shareholders and, within limits defined by the company's articles of association and the relevant bylaws, is required to regulate the business transactions of the company in accordance with their best judgement.
In this capacity, the members of the board of directors can, via the legal institute of the agency recognized under American law, transfer some of their management function to third parties. Thus, it is the board of directors which appoints the officers. In turn, the competencies of these officers for daily business management and company representation purposes are consequent upon the scope of the power of representation which has been granted.
Thus, the executive officers, who, in individual cases, implement the instructions of the board of directors, are responsible for conducting the daily business transactions. As a general rule, companies may appoint any number of executive officers since no there is no provision governing their exact number. In the majority of cases, a minimum executive organ comprising a chief executive officer (CEO), a vice president, a treasurer and a secretary exists.
The main task of the shareholders' meeting is to appoint the board of directors. In addition, the shareholders determine changes to the articles of association or the bylaws. As a general rule, the shareholders perform these tasks at an annual general meeting.
In addition to internal company controls, in the shape of the auditor American corporation law has established an independent control instrument for public corporations. On the one hand, the auditor is responsible for auditing a company's books and, on the other, monitoring the overall management of a company by its board of directors and its officers. The shareholders only play a subordinate role with regard to monitoring business management. Thus, for example, as outlined above, their monitoring opportunities are restricted to appointing and removing directors and initiating changes to the articles of association.
Both vis-à-vis the company and its shareholders, the directors and executive officers are subject to a plurality of different duties, the breach of which gives rise to compensation claims on the part of those affected. The principles relating to directors’ duties of care and skill and fiduciary duties have been developed an a case-by-case basis by court rulings without a set of coherent, well-conceived guiding principles suitable for the purpose of developing corporation law as a whole. Indeed, such a process is not possible with regard to common law judicial processes, in respect of which legal principles are formulated and reshaped incrementally. Some duties are now stipulated in the charter of incorporation and the corporate bylaws, whereas others stem from statutory norms. In addition, there are a number of regulations which have come into effect over the course of time in consequence of court rulings. Alongside internal liability vis-à-vis third parties due to breaches of contracts defective products and infringements of patents, etc. also enter into consideration. Internal and external liability is outlined below.
2.1.1 Internal management liability
With regard to the exercise of their sweeping management powers it is clear that directors must act on a bona fide basis for the benefit of the company and not for any collateral purpose such as their own benefit or protection.
220.127.116.11 Business judgement rule
The most important internal duties of directors and officers encompass the duty of loyalty and the duty of care. These are addressed in greater detail below. In addition, the business judgement rule has been developed by the courts. In accordance with this rule it is intended that managers who act on behalf of their companies in good faith should be protected from personal liability. Within the framework of this business judgement rule it is intended that it should be possible for directors and officers to take corporate decisions even if they involve a certain degree of risk for the company and it should subsequently transpire that they were incorrect. Accordingly, is not intended that the management of a company should be held liable if their actions end in failure.
The business judgement rule criterion is utilized by American courts in the sense of a clearing inspection, with the result that a judicial examination of any breach of the duty of care is conducted if the limits of the business judgement rule are exceeded.
A director or officer who makes a business judgement in good faith fulfils the duty under this Section if the director or officer:
(1) is not interested in the subject of the business judgement;
(2) is informed with respect to the subject of the business judgement to the
extent the director or officer reasonably believes to be appropriate under the circumstances;
(3) rationally believes that the business judgement is in the best interests of the corporation
(Section 4.01 (c) Principles of Corporate Governance of the American Law Institute)
This has considerably widened the resulting discretionary powers for managers, meaning that court rulings in which directors are convicted of a breach of the duty of care are rare.
One of these rulings involved the matter of Smith v. Van Gorkom. In this case the board of directors of a listed company negotiated the sale of all the company's shares to a financier under market value and submitted an ill‑considered sales concept to the shareholders. Delaware Supreme Court took the view that the business judgement rule did not apply, and ordered the managers to render compensation on the grounds of gross negligence.
In addition, the business judgement rule does not apply if, consciously or unconsciously, directors failed to take a decision.
It is self-evident that, with regard to the decisions which they take, the members of a board of directors must act impartially, and as a general rule this can no longer be assumed if a director has a personal, possibly financial, interest in a decision. The directors are consequently required not to place themselves in a position in which their duties and personal interests may possibly conflict. Considerable doubts as to impartiality are sufficient for the purpose of shifting the burden of proof from a plaintiff to a director. The fact that a decision must be in the best interests of a company is also self-evident.
Finally, it is obvious that a decision by the members of a board of directors likewise cannot be covered by the business judgement rule if it breached statutory bans or if the directors acted on a grossly negligent basis.
18.104.22.168 Duty of care
The above-mentioned duty of care can essentially be subdivided into two sets of duties. One set derives from the common law rules governing the liability of directors and officers, whereas the other set is statutory. The various duties are outlined in brief below:
It can be deduced from court rulings that a board of directors is required to establish and utilize an internal control system for the purpose of preventing breaches of duty at downstream management levels.
Pursuant to Section 8.33 Revised Model Business Corporation Act (RMBCA) the payment of dividends, the distribution of company assets and the acquisition of own shares in violation of the prevailing statutory provisions are prohibited and thus constitute a breach of duty.
Pursuant to Section 14.05 a (3) RMBCA the sale of a company's assets during its liquidation in violation of the principles of the satisfaction of creditors and the distribution of the residual proceeds among the shareholders constitutes a breach of duty and is prohibited.
In the past, the accusation of the dissipation of company assets has frequently been the subject of American court rulings. In addition, it is stipulated in Section 8.30 and Section 8.33 RMBCA that a company's share capital may not be diminished at the direction of its directors.
Pursuant to Section 8.32 RMBCA the extension of a loan to directors, officers or shareholders is illegal if it was not approved by the shareholders' meeting or is contrary to the interests of the company.
Insofar as it is still unclear during the takeover or sale of a company whether or not the merger infringes valid anti-trust laws, and the directors press on regardless without having secured information beforehand from competent third parties or in-house lawyers relating to the legality of the takeover, they are, at the very least, guilty of acting on a grossly negligent basis and are liable for such breach of duty and the resulting prejudice if it should subsequently transpire that the purchase of the company breaches anti-trust laws.
Prudent conduct is thus ultimately required of members of a board of directors during a takeover situation for their benefit. The more significant a transaction is, the greater the duties of care. Therefore, a central contentious issue is the defensive measures initiated by the management of the target company. Court rulings pertaining to this issue are very voluminous. Only three examples can be cited here:
A legal post-offer strategy obtains if, via the board of directors of a target company, a company acquires captive shares at slightly above market price for the purpose of preventing the bidder accomplishing the takeover. The basic prerequisite of the legality of such a defensive strategy is, however, that the board of directors acts exclusively in the interests of the company. In contrast, an illegal pre-offer strategy due to predominant vested interests on the part of the members of the board of directors is to be assumed if they wish to counter a future takeover offer by transferring a large proportion of the captive shares to a subsidiary company newly founded to this very end for the purpose of thus exercising the voting rights which the shares entail and subsequently transferring this block of shares to another newly founded company which acts as a staff pension fund and is controlled solely by the board of directors of the target company. In Gething v. Kilner it was held that in the case of competing takeover bids, the directors of a company would be in breach of a fiduciary duty if they failed to inform the shareholding body of the nature of the relevant bids. When furnishing this information the directors are obliged to ensure that it is not of a misleading nature. Indeed, in the case of Heron International v. Lord Grade the Court of Appeal went one step further by suggesting that when considering competing bids, the directors of a company are under a duty to ensure that they do not exercise their powers for the purpose of preventing shareholders obtaining the best possible price available for their shares.
To this extent, it should be noted that under American law takeover situations constitute a very sensitive liability field for the members of a board of directors.
22.214.171.124 Duty of loyalty
The duty of loyalty, which has likewise been cited above, should also be mentioned. Like the duty of care this is a general duty which, in principle, the members of a board of directors are invariably required to observe.
This encompasses the corporate opportunity doctrine, the duty to determine appropriate remuneration levels and the duty to monitor self‑dealing transactions which, for example, obtain if a director sells part of their assets to the company and, at the same time, approves the purchase contract on behalf of the company. There are now extensive statutory rules covering this area, but the general rule is that a director is at risk of being in breach of their overriding duty if they conclude a contract in which they have a personal interest in conjunction with their company. Self-dealing transactions are legal if, affording consideration to all the relevant circumstances from the viewpoint of the company concerned, they are fair.
In the case of any infringements of the principles of self-dealing transactions a company may insist upon the payment of compensation and the cancellation of the purchase contract.
2.1.2 External management liability
In addition to the internal liability risks American directors and officers may also be liable vis-à-vis third parties. This liability is predicated upon a plurality of laws.
Thus, for example, pursuant to Sections 1 – 3 of the Sherman Act anyone who deliberately impairs business or trade or illegally forms monopolies can be fined or imprisoned. The USA v. Miller ruling stipulates that managers act intentionally if their actions have the effect of impairing competition or if their actions intentionally pursue this objective.
The Clyton Act prohibits various forms of anti-competitive conduct, such as price-fixing agreements and oppressive contracts. Anyone who suffers prejudice in consequence of such conduct can claim treble damages and the reimbursement of their legal fees.
The Securities Act (SA 1933) and the Securities Exchange Act (SEA1934), which have already been mentioned above, rank among the most important investor protection and securities market legislation. Whereas SA 1933 regulates the initial issue of a company's securities, SEA 1934 is concerned with securities which have already been approved for sale. In principle, these two federal laws are intended to ensure that all market players enjoy the same profit and loss opportunities by virtue of the fact that they become cognizant of all the key circumstances and are not deceived by manipulations.
Thus, for example, pursuant to Section 11 SA 1933 anyone who has produced false accounting documents or submitted false information pertaining to the approval of securities is held personally liable.
Section 9 e SEA 1934 constitutes the basis for injured parties to lodge claims against anyone who was involved in an instance of manipulation which influences the securities market or misleads investors.
Additional laws from which liability claims are derived include the Employment Retirement Security Act (ERISA) and the Racketeer ‑ Influenced and Corrupt Organization Act (RICO). RICO also makes provision for treble damages.
The 1986 Internal Revenue Code and the 1982 Tax Equity and Fiscal Responsibility Act enables directors and officers to be held liable in the case of tax evasion and any other incidences of negligence with regard to the fiscal duty of disclosure.
Last, but not least the Civil Rights Act, the 1967 Age Discrimination in Employment Act and tortious liability should be mentioned. The latter invariably obtains if a director or an officer was personally and actively involved in the infliction of an incidence of prejudice upon a third party. However, the American courts interpret the notion of involvement in a very broad fashion. Thus, for example, the Supreme Court of North Carolina handled a claim for compensation from landowners for ground water pollution against the proprietors, and the directors and officers of such proprietors, of a defective underground tank. In explaining the reasons for its judgement, the court ruled that involvement in the infliction of an incidence of prejudice upon a third party may also obtain if a director or an officer prepared and signed the underlying contracts which, in the final analysis, issued in the infliction of the incidence of prejudice in question.
The scope of this paper would undoubtedly be exceeded by an attempt to include an exhaustive depiction of the prevailing liability variants, for which reason no such attempt is made and the reader is referred to the relevant literature.
2.1.3 Enforcement of liability
American procedural law provides plaintiffs with a bright bouquet of advantages which are still a long way from materialization in Germany if, that is, they are ever destined to materialize at all. In one of his last rulings, the renowned British judge, Lord Denning, proffered the simile that moths are just as drawn to the light as plaintiffs are to the American legal system. The possibilities of suing managers in America are correspondingly legion.
In addition to a company, which is represented by the board of directors in a lawsuit against the relevant directors and officers, shareholders and private individuals are able to initiate legal proceedings in order to secure compensation or lawful conduct on the part of the management of a company. Three channels are available for this purpose:
126.96.36.199 Direct action
If a company management member directly intrudes upon the legal sphere of an individual shareholder or, by means of tortious conduct, upon the legal sphere of a third party and if such shareholder or third party has suffered an incidence of direct prejudice, the injured party can assert their claims by means of a direct action. In the case of a direct action which is brought by a shareholder, the key factor is that the duty which has been breached by a director or an officer must not only have obtained vis-à-vis the company, but, in particular, vis-à-vis the shareholder personally.
188.8.131.52 Class action
One speaks in terms of a class action if a representative group of persons asserts claims on behalf of a fairly large group of persons sharing a common interest. In this connection, the fact that not all the involved persons participate in the legal proceedings is a characteristic feature of this type of action. Given the combination of entitlements defendants are frequently faced with claims running into several million dollars. In March 2003 a class action against Deutsche Telekom AG was announced in the United States. German investors were demanding compensation for shares acquired during the third stock market flotation at a unit price of EUR 63.50. Deutsche Telekom was accused of having overvalued its real estate holdings and having made additional false statements pertaining to the value of the company. This assertion was based on a letter dated 17 September 1999 issued by a former board member responsible for finance, in which he cast doubt upon the valuation of Telekom shareholdings. In August 2003 DaimlerChrysler agreed to a settlement of $ 300 million in an investor lawsuit against the company and certain of its directors and officers over the 1998 merger between Daimler-Benz and Chrysler. The company considered the suit, which had originally sought $ 22 billion, to be groundless. According to company sources, insurance would cover $ 220 million of the settlement, which had been reached in mediation. The action had been filed in an American court by investors who had claimed that they had been misled into approving the 1998 merger after executives from both companies had portrayed it as a union of equals when it was intended as a takeover of Chrysler. In March 2003, the German pharmaceutical company, Bayer, was sued by American shareholders in a federal district court in New York. The plaintiffs alleged that the chemical conglomerate had knowingly failed to disclose information pertaining to the risks involving the cholesterol drug Baycol, which has been linked to the deaths of more than 100 people. The class action lawsuit named the company’s chief executive officer and a former senior executive, who had allegedly concealed or misrepresented factual information regarding the Baycol drug. The complaint alleged that the statements which had been issued had been materially false and misleading. The plaintiffs underscored their argument by pointing out that Bayer’s own scientists had warned company officials internally that when administered in conjunction with other popular medications or at high dosages Baycol entailed an unacceptable risk of severe adverse effects. The shareholders further argued that these acts of concealment and misrepresentation had artificially inflated the price of Bayer’s American depository shares. Hitherto, Bayer has been confronted with approximately 7,800 product liability lawsuits relating to the Baycol/Lipobay scandal.
184.108.40.206 Derivative suit
Finally, what is termed a derivative suit is a suit on the part of a shareholder asserting company claims on behalf of a company. This enables shareholders to secure compensation from the members of the management of a company even against the will of the company concerned.
In principle, a derivative suit involves two different suits within a single action. In an equity suit a shareholder bringing the action must convince the court that a company should have asserted its claims. Thus, in an equity suit it is the company which is the defendant. If the court endorses the accusation of the shareholders it is the company which, during the further course of the proceedings, assumes the role of plaintiff, since it is now entitled to all the advantages stemming from the proceedings. Only now do the directors and officers concerned become defendants. Finally, on the basis of the company's assigned right, it is the shareholder who sues the directors and officers for the payment of compensation to the company. The subject matter of a derivative suit can entail excessive salaries for managers, inadequately secured loans, conflicts of interest and the dissipation of company funds. The prerequisite of the admissibility of such a suit is that the internal company possibilities of securing compensation have been previously exhausted, the plaintiff was already a shareholder at that point in time at which the incidence of prejudice at issue was incurred and, finally, still is a shareholder at that point in time at which the lawsuit is initiated. This final condition can issue in a dispute if, in consequence of a merger or a takeover, a shareholder forfeits their shareholding. In 1985, the Californian Court of Appeal took the view that a party bringing a derivative suit does not forfeit their right of action in consequence of a company merger. However, a contrary ruling has also been made. The Federal Court in the Southern District of New York ruled on a conciliatory basis that a shareholder derivative action should also be admissible subsequent to a cash‑out merger if, without their consent, a shareholder received cash compensation for their shares, this compensation is the subject matter of their derivative action and, in lieu of such compensation, the shareholder wishes to reacquire their status as a company shareholder.
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 Rales v. Blasband 634 A“d 927 (Del. 1993)
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 Contemporaneous ownership rule and continuing ownership rule
 Gaillard v. Natomas Company 173 Cal.App. 3d 410
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 Arnett v. Gerber Scientific Inc. 566 F.Supp. 1270 (SDNY 1983)