미국 판례법상 이사의 감시의무에 관한 연구－비즈니스 리스크를 중심으로－
A Study on the Board’s Duty of Oversight -In Relation to Business Risk-
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This article identifies the Delaware doctrine of the duty to monitor in relation to risk management. The four cases that have framed Delaware’s duty to monitor are Graham v. Allis-Chalmers, In re Caremark International Inc. Derevative litigation, Stone v. Ritter and In Re Citigroup Inc. Shareholder Derivative Litigation. Graham introduced the notion that boards have a duty to act when they become aware of “red flags.” Caremark held that boards have an obligation not only to act in the face of obvious signs of wrongdoing,but also to be informed of and to watch wrongdoing. Stone articulated breach of the duty to monitor as an act of bad faith and therefore a breach of the duty of loyalty. Finally Citigroup reaffirmed that protections of business judgment rule granted corporate directors under Delaware law in the claims pertaining to boards’ failure to monitor business risk Current standard for the duty of oversight is whether the board “utterly fails to inplement any reporting or information system or controls” or if “having implemented such systems or controls, consciously fails to monior or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.” Courts have recognized a breach of a duty to monitor only when board inaction or inattention results in wrongful acts or violations of law. More recently the Citigroup court narrowed the scope of the duty to monitor by holding that, except in the most extreme cases, which the court left unspecified, a board never be held liable for failing to monitor business risk. Citigroup holds that duty of oversight should not undermine the business judgment rule. Citigroup made a important distinction between ill-advised or negligent board decision and unconsidered board inaction. In examining the meaning of “bad faith” in the duty of oversight context, the Court identified a important distinction between the failure to monitor fraudulent or criminal misconduct within the company and the failure to monitor business risk. In sum, the Citigroup decision is a reaffirmation that the business judgment rule is alive in Delaware.
Abstract
This article identifies the Delaware doctrine of the duty to monitor in relation to risk management. The four cases that have framed Delaware’s duty to monitor are Graham v. Allis-Chalmers, In re Caremark International Inc. Derevative litigation, Stone v. Ritter and In Re Citigroup Inc. Shareholder Derivative Litigation. Graham introduced the notion that boards have a duty to act when they become aware of “red flags.” Caremark held that boards have an obligation not only to act in the face of obvious signs of wrongdoing,but also to be informed of and to watch wrongdoing. Stone articulated breach of the duty to monitor as an act of bad faith and therefore a breach of the duty of loyalty. Finally Citigroup reaffirmed that protections of business judgment rule granted corporate directors under Delaware law in the claims pertaining to boards’ failure to monitor business risk Current standard for the duty of oversight is whether the board “utterly fails to inplement any reporting or information system or controls” or if “having implemented such systems or controls, consciously fails to monior or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.” Courts have recognized a breach of a duty to monitor only when board inaction or inattention results in wrongful acts or violations of law. More recently the Citigroup court narrowed the scope of the duty to monitor by holding that, except in the most extreme cases, which the court left unspecified, a board never be held liable for failing to monitor business risk. Citigroup holds that duty of oversight should not undermine the business judgment rule. Citigroup made a important distinction between ill-advised or negligent board decision and unconsidered board inaction. In examining the meaning of “bad faith” in the duty of oversight context, the Court identified a important distinction between the failure to monitor fraudulent or criminal misconduct within the company and the failure to monitor business risk. In sum, the Citigroup decision is a reaffirmation that the business judgment rule is alive in Delaware.
참고문헌 (21)
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