Do You Think Your Board is Immune to Shareholder Derivative Suits Allerging Breach of "Duty of Loyalty" or "Duty of Care"? Think again, it can happen.
The Marchand vs. Barnhill case resolved in the Delaware Supreme Court in June 2019 has proven that Caremark claims can happen, holding board directors accountable for bad faith and guilty of breaching their duty of loyalty, This is the first case in Delaware where the plaintiffs have prevailed, even though Caremark claims in the past have been difficult to plead or prove. Is this a trend or is this an unique case? Holly Gregory, co-chair of Sidley's global Corporate Governance and Executive Compensation practice, will walk participants through the case and provide a perspective on the lessons board of directors should learn from it. Holly, who was a commissioner on the NACD's upcoming Blue Ribbon Commission (BRC) report on Board Leadership, will also link the recommendations of this BRC report to those lessons.
Co-Chair Global Corporate Governance and Executive Compensation Practice
HOLLY J. GREGORY, co-chair of Sidley’s global Corporate Governance and Executive Compensation practice, counsels publicly held, private and not-for-profit corporations on the full range of governance issues, including governance structure and culture, fiduciary duties, risk oversight, conflicts of interest, board and committee structure, board leadership, special committee investigations, CEO transitions, board audits and self-evaluation processes, shareholder activism and initiatives, proxy contests, relationships with shareholders and proxy advisory firms, compliance with legislative, regulatory and listing rule requirements and governance “best practices.” She is frequently called on to advise boards regarding sensitive and unusual matters. While most of the matters she works on are highly confidential, high-profile matters that are in the public record include advising on governance and accountability mechanisms of the Internet Corporation for Assigned Names and Numbers (ICANN) to replace U.S. government oversight, and advising the Board of The Pennsylvania State University on governance reforms. Holly played a key role in drafting the OECD Principles of Corporate Governance and has advised the Internal Market Directorate of the European Commission on corporate governance regulation, and the joint OECD/World Bank Global Corporate Governance Forum on governance policy for developing and emerging markets. She also drafted the National Association of Corporate Directors (NACD) Key Agreed Principles of Corporate Governance. She is also a frequent participant on NACD Blue Ribbon Commissions and Advisory Councils. In addition to her legal practice and policy efforts, Holly has lectured extensively on governance topics, including at events in Europe and Asia sponsored by the U.S. State Department, International Corporate Governance Network (ICGN), The Conference Board, the NACD, Association of Corporate Counsel, Society for Corporate Governance and Institutional Shareholder Services (ISS). The author of numerous articles on governance topics, she writes the governance column for Practical Law: The Journal. Holly is widely recognized for her work, including as: among the “100 Most Influential Players in Corporate Governance” (NACD/Directorship 100), Directorship Magazine, 2019 and all prior years (13 years total); one of “the best and brightest minds in the legal profession” in Ethisphere’s 2017 and 2015 Attorneys Who Matter; the “Best in Corporate Governance” at Euromoney Legal Media Group’s Americas Women in Business Law Awards 2016 and at the inaugural 2012 Awards; the leading practitioner in corporate governance law in the Guide to the World’s Leading Women in Business Law (July 2010); a “Leading Practitioner in Corporate Governance” in the International Who’s Who of Corporate Governance Lawyers, 2019 and prior years; a “Thought Leader” in the Who’s Who Legal: Thought Leaders – M&A and Governance 2019 and a “leading lawyer” in Corporate Governance in The Legal 500 US 2018 and prior years. In 2018, The National Law Journal named Holly to its list of “White Collar, Regulatory & Compliance Trailblazers.” Among other things, Holly was recognized for leading the team that counseled the global internet community on a new governance and accountability structure for ICANN for the period to follow U.S. government oversight.