Liability risk for outside directors: A cross-border analysis

Bernard Black, Brian Cheffins, Michael Klausner

Research output: Contribution to journalArticlepeer-review

22 Scopus citations

Abstract

Much has been said recently about the risky legal environment in which outside directors of public companies operate, especially in the USA, but increasingly elsewhere as well. Our research on outside director liability suggests, however, that directors’ fears are largely unjustified. We examine the law and lawsuit outcomes in four common law countries (Australia, Canada, Britain, and the USA) and three civil law countries (France, Germany, and Japan). The legal terrain and the risk of ‘nominal liability’(a court finds liability or the defendants agree to a settlement) differ greatly depending on the jurisdiction. But nominal liability rarely turns into ‘out-of-pocket liability,’ in which the directors pay personally damages or legal fees. Instead, damages and legal fees are paid by the company, directors’ and officers’(D&O) insurance, or both. The bottom line: Outside directors of public companies face a very low risk of out-of-pocket liability. We sketch the political and market forces that produce functional convergence in outcomes across countries, despite large differences in law, and suggest reasons to think that this outcome might reflect sensible policy.

Original languageEnglish (US)
Pages (from-to)153-171
Number of pages19
JournalEuropean Financial Management
Volume11
Issue number2
DOIs
StatePublished - Jan 1 2005

Keywords

  • Corporate governance
  • Corporate law
  • D&O insurance
  • G34
  • G38
  • Legal liability
  • Outside directors
  • Securities law

ASJC Scopus subject areas

  • Accounting
  • Economics, Econometrics and Finance(all)

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