Fiduciary Constraints: Correlating Obligation With Liability

Abstract

State law seems to be ratcheting up the scrutiny of corporate behavior including the behavior of officers and executives. In this article we consider the issues that are likely to arise as officer conduct is scrutinized more closely using state corporate fiduciary principles. The challenge is not so much one of ensuring that fiduciary principles govern the conduct of corporate actors as it is correlating obligation with potential liability. We find in this paper that ERISA is helpful in anticipating the issues that state corporate law will confront in its increasing focus on officer liability. We look to ERISA to identify issues expected to arise as a result of the growing state law emphasis on individual liability and to consider alternative approaches to address those issues.