The United States Court of Appeals for the Fourth Circuit, which governs North and South Carolina as well as Virginia, West Virginia and Maryland, has issued an important ruling in FDIC v. Rippy, a lawsuit brought by the FDIC against former directors and officers of Cooperative Bank in Wilmington, North Carolina. As it has done in dozens of cases throughout the country, the FDIC alleged that Cooperative’s former directors and officers were negligent, grossly negligent, and breached their fiduciary duties in approving various loans that caused the bank to suffer heavy losses. The evidence showed the FDIC had consistently given favorable CAMELS ratings to the bank in the years before the loans at issue were made. The trial court entered summary judgment in favor of all defendants, criticizing the FDIC’s prosecution of the suit as an exercise in hindsight. The Fourth Circuit, however, vacated the ruling as it applied to the ordinary negligence claims against the officers. In its opinion, the court held that the evidence submitted by the FDIC was sufficient to rebut North Carolina’s business judgment rule and thus allow the case to go to trial. The Court found that the evidence indicated that the officers had not availed themselves of all material and reasonably available information in approving the loans.
The decision is specific to North Carolina-chartered banks and is based on the historical development of the business judgment rule in that state. Nonetheless, there are certainly comparisons to be drawn to decisions from other states. The emphasis on allegations of negligence in the decision-making process echoes last year’s decision in FDIC v. Loudermilk, in which the Georgia Supreme Court held that it was possible to bring an ordinary negligence claim against bank directors and officers who engage in a negligent process in making a decision. While the Georgia Supreme Court in Loudermilk seemed to be of the view that it would permit claims to go forward against directors and officers who completely avoided their duties and acted as mere figureheads, the Rippy decision shows that in North Carolina, at least, the distinction between a viable case and one barred by the business judgment rule may be very fine indeed. For instance, the FDIC’s evidence consisted largely of expert testimony that Cooperative’s officers failed to act in accordance with generally accepted banking practices by, among other things, approving loans over the telephone before they had examined all relevant documents, and by failing to address warnings and deficiencies in the bank’s (generally positive) examination reports.
Notably, while the Fourth Circuit upheld the trial court’s ruling in favor of the directors, it did so for reasons different than those articulated by the trial court. The directors prevailed because they (unlike the officers) were exculpated by Cooperative’s articles of incorporation, which eliminated personal liability for conduct falling short of gross negligence. The court found that the FDIC’s evidence fell short of showing gross negligence under North Carolina law, which is defined as “wanton conduct done with conscious or reckless disregard for the rights and safety of others.” Because of this, and because the FDIC did not claim that the directors acted disloyally, the exculpation clause applied. Interestingly, the Fourth Circuit also upheld the district court’s decision in favor of the officers on the issue of gross negligence, which serves to highlight that the claims that will be going forward to trial against them are ordinary negligence claims.