Shareholder litigation comes in waves. There is a widespread belief that the next big wave will be shareholder derivative litigation – a shareholder’s assertion of a claim belonging to the corporation, typically brought against directors and officers, alleging corporate harm for a board’s failure to prevent corporate problems.
Derivative cases filed as tag-alongs to securities class actions have long been commonplace, and frequently are little more than a nuisance. Over the years, there have been sporadic large derivative actions concerning other areas of legal compliance – typically over a very large corporate problem. Non-disclosure derivative litigation filings recently have seemed more frequent, and there have been some large settlements that have come as a result. And the specter of cyber liability derivative suits looms large – not surprisingly, Target shareholders just filed derivative litigation related to the recent customer data breach. Whether the forecasted non-disclosure derivative-litigation wave materializes, or remains a sporadic occurrence in the larger world of D&O litigation, is one of the issues I’m watching closely in 2014 and beyond.
This potential wave raises issues that are unique to derivative litigation. One key issue that has not been analyzed enough is representation: which lawyers can and should represent the company and the individual defendants in derivative litigation?
Because a derivative litigation claim belongs to the corporation, it puts the corporation in an odd spot. A shareholder, as one of the corporation’s “owners” (usually a really, really small owner – but an owner nevertheless), is trying to force the company to bring a claim against the people who run the company. The law says, however, that those people, the directors, get to decide whether the company should sue someone – including themselves – unless a shareholder can show that they couldn’t make a disinterested and independent decision. Thus, to bring a derivative action, a shareholder must allege that it would have been futile to demand that the board take action, and defendants will typically challenge the lawsuit with a motion to dismiss for failure to make a demand (“demand motion”) on the basis that the demand-futility allegations aren’t sufficiently probative or particularized.
It is often said that the interests of the company and defendants are aligned through the demand motion, because they all have an interest in making sure that the shareholder follows proper governance procedures – namely, making a pre-suit demand on the board. But this sort of statement prejudges the demand-futility allegations; it assumes that the allegations of futility are insufficient. In Delaware and states that follow its demand law, proper corporate governance procedures require a shareholder either to make a demand or to plead demand-futility. Only if and when the court rules that demand was required can we truly say that the interests of the company and defendants on the demand issue were aligned. However, I don’t think this means that legal ethics require the company to be separately represented from the inception of a derivative action in all cases; the shared-interest view is arguable. So if there are good practical reasons for joint representation from inception, and it causes no harm, so be it. (That the primary lawyers are expensive relative to the D&O insurance limits isn’t a good reason for joint representation – it’s a good reason why those lawyers were the wrong lawyers for the matter. But I digress.)
There’s also a compelling strategic reason to separate the representation from the beginning of the case. A demand motion asks the court to allow the defendants to be the judge – to require the plaintiff to ask the directors to evaluate and bring claims against themselves and senior officers. Thus, the company must overcome a judge’s skepticism that such an evaluation presents a “fox-guarding-the-chicken-coop” problem. This is far easier to do if the company is separately represented and makes the demand motion. It is true that courts frequently grant demand motions made during joint representation of the company and defendants. But it is also true that joint representation always carries strategic risk, and the more serious the derivative litigation, the more unwise it is to take the risk. Rather than make judgments in advance about which derivative litigation is serious, warranting a split, and which isn’t, allowing joint representation, I advocate splitting the representation from the outset – since the representation must be split up if demand is excused, splitting it from the outset imposes relatively little additional cost burden, if there’s appropriate coordination.
Representation between and among the defendants has strategic components, in addition to ethical considerations. It can be strategically advantageous for individuals who aren’t accused of active wrongdoing to be separately represented from those who are. That typically means officers and outside directors are represented separately in groups. With this division, the court can see that the directors who would evaluate a demand don’t have the same lawyers as the people who allegedly engaged in active wrongdoing. However, I don’t think that’s as strategically important for purposes of the demand motion as splitting up the company and defendants. In evaluating a demand, the directors, acting as directors and not director-defendants, should be represented by counsel other than their litigation defense counsel. Moreover, demand futility is judged at the time the suit is filed, not when the court decides the demand motion. Thus, it isn’t technically necessary or legally accurate to send a “signal” of independence to the court through splitting up the representation further. That said, in a very significant derivative case, and/or one in which the judge is new to derivative litigation, such an approach could be strategically advantageous.
It can sometimes be appropriate to consider even more divisions – for example, splitting the outside directors into audit-committee and non-audit-committee groups where audit-committee oversight is the main oversight allegation. Such divisions may be ethically prudent or necessary later, but for purposes of the demand motion, they often don’t add much, if anything, since the demand motion is about the ability of a majority of the full board to consider a demand.
So, a typical case needs at least two lawyers from the outset – one for the company, and another for the individual defendants. The type of derivative litigation we’re discussing often arises in the context of an underlying legal problem for which the company has lawyers – in a disclosure-related matter for a related securities class action, and in non-disclosure matters for other types of underlying matters (FCPA, antitrust, privacy, etc.). To what extent should the lawyers defending the underlying matters be involved in the derivative action?
In general, I believe that the lawyers defending the underlying proceedings that created the corporate liability or harm (actual or potential) at issue in the derivative case should not defend the derivative case. The reasons are similar to those I have written about in the context of using corporate counsel to defend a securities class action that may involve corporate counsel’s advice – there are tricky and hidden conflict issues, and the lawyers can be of better service to their clients as witnesses.
In derivative litigation, the problem can be even worse. Corporate counsel typically advises on relevant corporate governance issues, such as compliance programs, the severity of legal risks that ultimately trigger the derivative litigation, board review of various risks, and preparation or review of board minutes. Some companies are heavily guided in these areas by their corporate counsel, either directly in the boardroom or indirectly through advice to in-house counsel. It is in the interests of the company and the board to be able to testify that they took a course of action, or didn’t do so, because of their lawyers’ advice. The problem is greater than that of lawyer-as-witness – defense counsel should not be in the position of making judgments or recommendations that might be influenced by the law firm’s concerns about the public airing of its corporate work.
In derivative cases based on a disclosure problem, another representation issue arises: whom should the securities class action defense counsel represent – the company or the defendants? Securities class action defense counsel take different approaches to dividing derivative litigation representation. Some will represent the company only, and have their securities class action individual defendant clients be represented by a different firm. Others represent the individual defendants in the derivative action, and have the company represented by a different firm. The right approach is a judgment call, but I prefer to have the securities class action defense counsel represent the individual defendants in the derivative action and have another firm represent the company. That approach allows the lawyers in defense mode to fully remain in defense mode – they can defend the lack of merit to the charges of wrongdoing in all proceedings. It also allows the defending lawyers to avoid the tension involved in simultaneously defending individuals in the securities class action and representing the potentially adverse company in the related derivative action. This approach is possible with the right waivers, but I prefer the pure-defense approach.
Once the right lawyers are in place, how can and should the lawyers interact to prepare motions to dismiss and conduct other preliminary projects effectively – and cost-effectively? The gating question is who should make the demand motion – the company or the defendants? The company is really the right movant. The demand motion is about the company’s corporate governance procedures, and the directors are involved not as directors but as individual defendants, so the purest approach is for the company to make the demand motion.
The same result makes sense from a strategic perspective. The defendants have 12(b)(6) motions to make, and having them make both motions is awkward. Although both motions say that the allegations (not the claims) aren’t good enough – the demand motion asserts that the allegations don’t raise a substantial likelihood of liability or other disabling interest sufficient to excuse demand, and the 12(b)(6) motion asserts they are not sufficient to state a claim – having the directors simultaneously assert that they could impartially consider a demand, but that the claims should be dismissed, is slicing the issues pretty finely. If the defendants don’t make a 12(b)(6) motion, that problem is alleviated. Many defense lawyers – including me from time to time – opine that the 12(b)(6) motions will fail if the demand motion fails, so defendants should just forego the 12(b)(6) motion entirely and make a 12(c) motion later, if necessary. However, that foregoes the initial line of defense for the individuals.
It will be interesting to see if there is indeed a wave of more serious derivative litigation coming.