As the new year begins the United States and the world remain saddled with an economic crisis that has not been witnessed in decades.
A new administration in Washington takes over today, and there still exists uncertainty in how this administration, or Congress, will act to address this crisis in what commentators, and politicians, scream was a failure at the board level to understand and assess the risks of the organization and the boards failure to independently assess management of the organizations. Rumors abound speak of the Democratic Senate considering a bill to federalize fiduciary duties and impose a standard to act with the care that a prudent person acting in a like capacity and familiar with such matters would use -similar to the ERISA standard- as opposed to the state law ordinarily prudent person in a like position would use under similar circumstances. Yet to date we wait to see what the formal response will be.
As a result of the economic crisis, boards of directors will need to respond to unknown challenges and pressures. Boards need to review their past actions in monitoring performance, compliance and risk management—and understand the role they must play going forward. The risk oversight role of the board has never been more critical and challenging than it is today.
In reviewing their role in overseeing risk to the organization, boards need to understand the changes that are likely coming, either through the courts applying new standards or interpreting existing ones, that will directly impact how these boards perform their functions and fulfill their fiduciary duties and likely increase board responsibility for risk management. While the current standard for director liability, established in Delaware by the Caremark case, requires that directors act as reasonably prudent person in a like or similar situation and provides the protection of the business judgment rule, if rumors are true there is real possibility that, as a result of the current economic crisis, boards will need to change how they act. Boards’ decisions will be in the crosshairs and will provide courts with repeated occasions to second-guess board decisions.
The only certainty going forward is uncertainty. Uncertainty as to the when the recession will end, when the liquidity markets will thaw, when things will return to “normal”—whatever that is.
One thing that we can be certain of is that there will be some kind of regulatory response to the economic crisis: just as the federal government reacted to the market crash of 1929 with the 33’ and 34’ Acts, just as the federal government reacted to expansion of United States businesses into foreign countries with the Foreign Corrupt Practices Act, and just as the federal government reacted to the Enron and WorldCom scandals with the Sarbanes-Oxley Act. Yes- there will be a regulatory response. But again there is uncertainty as to what the end product will look like. Boards need to be proactive in addressing new risks and new challenges this year will bring. By doing so Boards will be well prepared to handle and adjust to whatever regulatory response comes out of Washington.