Articles Posted in Breach of Fiduciary Duty

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Recent Illinois law regarding the defense of officers and directors of corporations and LLCs encompasses several key factors:

1. Fiduciary Duties: Officers and directors of corporations and LLCs are fiduciaries, holding duties of good faith, loyalty, and honesty to the corporation. They are not permitted to enhance their personal interests at the expense of the corporation’s interests, and should not be in a position where their own individual interests might interfere with their duties to the corporation.

2. Business Judgment Rule: Under the business judgment rule, a presumption exists that corporate decisions made by an officer or director are made on an informed basis and with an honest belief that the action was in the corporation’s best interests. This presumption can be rebutted by allegations that a director acted fraudulently, illegally, or without sufficient information to make an independent business decision [3].

3. Contractual Obligations: Illinois law provides officers of a corporation with a qualified privilege against liability for tortious interference with a contract with the corporation. To overcome this privilege, the plaintiff must assert and plead that the corporate officers acted with malice and without justification.

4. Piercing the Corporate Veil: Generally, corporate officers and directors are not personally liable for the corporation’s actions, as corporations are considered distinct legal entities separate from their officers, shareholders, and directors. However, under certain circumstances, the corporate veil can be pierced to hold officers and directors personally responsible, such as when there is such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist, or adherence to the fiction of separate corporate existence would sanction fraud or promote injustice.

5. Specifics for LLCs: In the context of LLCs, allegations that officers and directors disguised equity contributions as loans, enabling the company to make interest payments to insiders during a time when the company was either insolvent or undercapitalized, could be sufficient to state a claim for breach of fiduciary duty under Illinois law.

These principles form the foundation of a defense for corporate officers and directors in Illinois. Continue reading ›

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The legal landscape for Officers and Directors of Illinois corporations and LLCs is constantly evolving. Recent developments in laws, regulations, and court decisions have significant implications for the responsibilities and liabilities of board members. At DiTommaso Lubin, we are committed to staying ahead of these changes to provide our clients with the best possible defense. In this blog post, we’ll explore some of the recent developments in defending Officers and Directors of corporations and LLCs in Illinois.

1. Enhanced Scrutiny of Fiduciary Duties

In recent years, Illinois courts have heightened their scrutiny of the fiduciary duties owed by Officers and Directors of corporations and LLCs. These fiduciary duties include the duty of care and the duty of loyalty. Directors are expected to act in the best interests of the company and its shareholders, and any breaches of these duties can lead to legal action.

2. Clarifications on the Business Judgment Rule

The business judgment rule is a legal principle that provides some protection to Officers and Directors for their decisions made in good faith and in the best interests of the company. Recent developments in Illinois have clarified the application of this rule, emphasizing the importance of proper decision-making processes and documentation.

3. Increased Shareholder Activism

Shareholder activism is on the rise, and Directors and Officers are facing greater scrutiny from shareholders. In response, Illinois law has evolved to address the rights and powers of shareholders, particularly in closely held corporations and LLCs. It’s crucial for Officers and Directors to be aware of these changes and to engage in transparent communication with shareholders.

4. Cybersecurity and Data Privacy Concerns

The digital age has brought new challenges to the forefront, including cybersecurity and data privacy. Directors and Officers are now responsible for overseeing the protection of sensitive information and responding to data breaches appropriately. Failure to do so can result in legal action and regulatory penalties.

5. Environmental and Social Governance (ESG) Issues

ESG issues, such as environmental sustainability and social responsibility, are gaining prominence in the corporate world. Directors and Officers must consider these factors when making decisions, as they can impact the company’s reputation and risk exposure. Staying informed about ESG developments is vital. Continue reading ›

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Limited Liability Companies (LLCs) are a popular business structure known for providing liability protection to its members. However, conflicts and wrongdoing within an LLC can occur, leading to disputes among members. When an LLC suffers harm due to actions taken by its management or majority members, a derivative suit can be an effective legal recourse for members seeking to address these issues in Illinois.

Understanding LLC Derivative Suits: An LLC derivative suit is a legal action brought by one or more members on behalf of the LLC against a third party, typically the management or majority members, alleging wrongdoing or harm done to the company. In essence, it allows individual members to sue on behalf of the LLC when the company itself fails to take action against internal misconduct.

In Illinois, the procedures and rules governing derivative suits for LLCs are outlined under the Illinois Limited Liability Company Act (805 ILCS 180) and relevant case law.

Requirements for LLC Derivative Suits in Illinois: For a member to file a derivative suit on behalf of an LLC in Illinois, several key requirements must be met:

  1. Ownership Status: The member initiating the derivative suit must be a current member at the time of filing the lawsuit and must have been a member at the time the alleged wrongdoing occurred.
  2. Exhaustion of Remedies: Generally, the member bringing the suit must show that they made a demand on the LLC’s management to take action against the alleged wrongdoing but that the demand was either rejected or ignored, or waiting for a response would be futile.
  3. Injury to the LLC: The alleged misconduct must have caused harm or damage to the LLC, affecting its financial interests or causing other significant negative effects.
  4. Representation of LLC’s Interests: The member bringing the derivative suit must adequately represent the interests of the LLC and not have conflicting interests.

Continue reading ›

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Fiduciary duty law is a crucial legal concept that governs the relationships between individuals or entities entrusted with responsibilities to act in the best interests of others. In the state of Illinois, as in many other jurisdictions, fiduciary duty law plays a central role in various contexts, including business, finance, estate planning, and more. In this blog post, we will explore the key principles and applications of fiduciary duty law in Illinois.

What Is Fiduciary Duty?

Fiduciary duty is a legal obligation that requires an individual or entity, known as a fiduciary, to act in the best interests of another party, known as the beneficiary or principal. The fiduciary duty imposes a high standard of care, loyalty, and honesty on the fiduciary, ensuring they prioritize the beneficiary’s interests above their own.

Key Principles of Fiduciary Duty Law in Illinois

  1. Duty of Loyalty: Fiduciaries in Illinois are bound by a duty of loyalty, which means they must put the interests of the beneficiary above their own. They should avoid any conflicts of interest and disclose any potential conflicts when they arise.
  2. Duty of Care: Fiduciaries are required to act with the utmost care and diligence in managing the beneficiary’s affairs. This includes making informed decisions, conducting due diligence, and acting prudently.
  3. Duty of Good Faith: Fiduciaries must act in good faith when carrying out their responsibilities. This means they should make decisions honestly and without any ulterior motives.
  4. Duty of Disclosure: Fiduciaries must provide the beneficiary with all relevant information about the management of their affairs. This transparency helps the beneficiary make informed decisions.

Continue reading ›

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Introduction

Shareholder derivative lawsuits are legal actions brought by individual shareholders on behalf of a corporation against its officers, directors, or other insiders. These lawsuits typically allege misconduct, mismanagement, or breaches of fiduciary duties by those in control of the corporation. Defending against a shareholder derivative lawsuit can be complex and challenging, but with the right strategies and considerations, it is possible to protect the interests of both the corporation and its shareholders. In this blog post, we’ll explore the key steps and considerations involved in defending against a shareholder derivative lawsuit.

1. Understand the Basics of Shareholder Derivative Lawsuits

Before diving into defense strategies, it’s crucial to have a clear understanding of what a shareholder derivative lawsuit entails. These lawsuits are filed on behalf of the corporation, not individual shareholders, and seek to hold company insiders accountable for alleged wrongdoing. Understanding the legal framework is the first step in formulating an effective defense.

2. Evaluate the Merits of the Lawsuit

The first line of defense in any shareholder derivative lawsuit is a thorough evaluation of the merits of the claims. Engage experienced legal counsel to assess the allegations and evidence. Determine whether the allegations have a factual basis and whether they meet the legal requirements for pursuing a derivative action. If the claims lack merit, you may have grounds to seek dismissal. Continue reading ›

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Corporate veil piercing is a legal concept that allows a court to hold individual shareholders or owners of a corporation personally liable for the corporation’s actions or debts. It is a complex legal doctrine that is typically associated with business law, but in the case of Oliver v. Isenberg, 2019 IL App (1st) 181551-U, it was invoked in the context of family law. In this blog post, we will explore the unique application of veil piercing in this case and its implications for corporate liability in family law matters.

Background of the Case

Oliver v. Isenberg was primarily a family law case involving child custody and visitation rights. However, a significant twist in this case involved the issue of veil piercing, which emerged when Mr. Oliver sought to hold Ms. Isenberg personally liable for certain corporate debts.

The Legal Issues

  1. Veil Piercing in Family Law: Veil piercing is a legal doctrine more commonly associated with business law. It allows a court to disregard the legal separation between a corporation and its owners when certain conditions are met. In Oliver v. Isenberg, the issue was whether this doctrine could be applied in a family law context.
  2. Corporate Debts and Personal Liability: Mr. Oliver argued that Ms. Isenberg had manipulated the family’s corporate assets and finances to avoid paying child support and alimony. He contended that her actions were tantamount to piercing the corporate veil, making her personally liable for the outstanding financial obligations.
  3. Complex Legal Terrain: Veil piercing cases are notoriously complex, requiring the court to consider various factors, including whether the corporation was used to commit fraud, evade legal obligations, or if it lacked a true separate identity from its owners. In the family law context, this complexity was compounded by the emotional and personal nature of the dispute.

Continue reading ›

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Donald J. Trump is already facing dozens of criminal charges for allegedly falsifying business records and misusing campaign funds in an alleged attempt to influence the 2016 presidential election. Yet Trump is back in court suing his former attorney, Michael Cohen, for $500 million.

The lawsuit accuses Cohen of talking publicly about things that should have remained confidential between him and his former client. The lawsuit also accuses Cohen of telling lies about Mr. Trump in the media and in Cohen’s two books, Disloyal: A Memoir: The True Story of the Former Personal Attorney to President Donald J. Trump, and Revenge: How Donald Trump Weaponized the U.S. Department of Justice Against His Critics.

The first book was published prior to the 2020 presidential election, whereas the second was released in 2022. Among other things, the books accuse Trump of being a racist and of lying about just about everything. Continue reading ›

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We all know attorneys are not allowed to represent both sides in a lawsuit, but what if the law firm currently representing one side used to represent the other side? Wouldn’t that be considered a conflict of interest? It’s especially likely to pose a problem if the issue involved in the lawsuit is the same issue the law firm previously handled for the other side.

If the law firm had recently represented the company they’re currently suing, it’s obvious how that could cause problems. But what if the prior legal work in question was performed more than a decade ago? Would that be long enough to erase the conflict of interest?

All that is in question as Walgreens seeks to disqualify a law firm currently filing a lawsuit against it on behalf of major health insurance providers.

Walgreens claims the law firm, Crowell & Moring, has breached its fiduciary duty to the giant retail company by representing major health insurers suing Walgreens over drug prices. The law firm sought to have the claims dismissed, but U.S. District Judge Virginia Kendall said Walgreens had provided enough evidence to keep their claim alive, at least for now. Continue reading ›

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In the case of Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, the plaintiff sought punitive damages against the defendant for the defendant’s failure to warn consumers of the dangers associated with asbestos exposure. Punitive damages are damages awarded in addition to compensatory damages and are intended to punish the defendant for their wrongful conduct and to deter similar conduct in the future.

In this case, the plaintiff sought to discover the net worth of the defendant as part of their efforts to establish punitive damages. The defendant objected to the request for net worth discovery, arguing that it was irrelevant to the issue of punitive damages and that it was overly burdensome and intrusive.

The court held that net worth discovery was relevant to the issue of punitive damages and that the defendant had a duty to disclose its net worth. The court noted that punitive damages are intended to punish the defendant and that the amount of punitive damages awarded should be proportionate to the defendant’s ability to pay. The court also noted that net worth discovery is a common practice in cases involving punitive damages. Continue reading ›

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“The focus of the crime fraud exception is on the intent of the client (citation omitted), not the legitimacy of the services provided by the attorney. An attorney may be completely innocent of wrongdoing, yet the privilege will give way if the client sought the attorney’s assistance for illegal ends.” People v. Radojcic, 2013 IL 114197, ¶ 49.

A lawyer’s participation in intentional breaches of fiduciary duty triggers the crime-fraud exception even though a fiduciary breach is no necessarily a crime or act of common law fraud. Intentional fiduciary breaches are regularly called constructive fraud however and give rise to the crime fraud exception. See Mueller Indus., Inc. v. Berkman, 399 Ill.App.3d 456, 469-73 (2d Dist. 2010) abrogated by People v. Radojcic, 2013 IL 114197 on other grounds (“In concluding that an intentional breach of fiduciary duty may serve as the fraud necessary to establish the crime-fraud exception, we take note of Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). … The Kentucky Supreme Court held that the breach of fiduciary duty was ‘on an equal par with fraud and deceit.”’) Lawyers who aid and abet fiduciary breaches and other torts are subject to suit. As Thornwood, Inc. v. Jenner & Block, 344 Ill. App. 3d 15, 28–29 (1st Dist. 2003), as modified on denial of reh’g (Nov. 10, 2003) recognized, a lawyer may not “escap[e] liability for knowingly and substantially assisting a client in the commission of a tort.” Continue reading ›

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