Are corporate officers advised about fiduciary duties?

Business Lawyer

Volumn 64, Issue 4, 2009, Pages 1105-1128

  Johnson, Lyman ^a   Garvis, Dennis ^b  

^a LEE UNIVERSITY   (United States)

^b Lee University   (United States)

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EID: 70350140184     PISSN: 00076899     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (140)

1. See, e.g., Jeffrey Sonnenfeld, The Herd's Farewell 39-57 (1988) (proposing that corporate leaders should be seen as folk heroes).
2. See, e.g., Scandal Scorecard, Wall St. J., Oct. 3, 2003, at B1 (detailing criminal charges and investigations against corporate officers).
3. The bankruptcy of Lehman Brothers, the venerable investment bank, is the most striking business failure of the autumn 2008 financial meltdown.
4. See New York Times, Business, Companies, Lehman Brothers Holdings Inc., http:/topics.nytimes.com/topics/news/business/companies/lehman-brothers- holdings-inc/(last visited June 15, 2009).
5. Other seemingly solid companies-e.g., Merrill Lynch and Wachovia Bank, N. A.-although struggling throughout 2008, sought merger partners to avert disaster.
6. See, e.g., Bank of America to Buy Merrill, Wall St. J., Sept. 15, 2008, http://online.wsj.com/article/SB122142278543033525.html;
7. Robin Sidel, David Enrich & Dan Fitzpatrick, Troubled Wachovia Seeks Out a Merger, Wall St. J., Sept. 27, 2008, http://online.wsj.com/article/SB12 2246312342980035.html.
8. See, e.g., Susanne Craig, Jeffrey McCracken, Aaron Luchetti & Kate Kelly, The Weekend Wall Street Died-Ties that long United Strongest Firms Unraveled as Lehman Sank Toward Failure, Wall St. J., Dec. 29, 2008, at A1 (comparing actions of Richard Fuld, Jr., of Lehman Brothers to actions of leaders at other banks).
9. See, e.g., Erin White, Best CEOs: The Winners, Wall St. J., Dec. 19, 2008, http://online.wsj.com/article/SB122971949750122237.html;
10. CEOs of Bailed-Out Banks Flew to Resorts on Firms' Jets, Wall St. J., June 19, 2009, http://onltae.wsj.com/artide/SB124536271699529031.html.
11. Delaware's corporate statute contains few provisions pertaining to corporate officers, see, e.g., Del. Code Ann. tit. 8, §§ 142-145 (2001), but numerous provisions referring to directors or stockholders.
12. See, e.g., Del. Code Ann. tit. 8, §§ 141, 152-155, 157, 161, 170, 251 (2001 & Supp. 2007) (directors) ;
13. id. §§ 211-233 (stockholders). The Model Business Corporation Act contains more sections explicitly addressing officers than Delaware's statute
14. see, e.g., Model Bus. Corp. Act Ann. §§ 8. 40-8.44 (2005) - including a section specifying a standard of conduct, id. § 8.42-but far fewer sections focusing on officers than on directors or shareholders. Moreover, some Model Act states, such as Virginia, have deleted the standard of conduct provision for officers from their corporate statutes while still providing a standard for directors.
15. See, e.g., Va. Code Ann. § 13. 1-690 (West 2007).
16. See Lyman P. Q. Johnson & David Millon, Recalling Why Corporate Officers Are Fiduciaries, 46 Wm. & Mary L. Rev. 1597, 1600-01, 1609-10 (2005).
17. Compare Lyman P. Q. Johnson, Corporate Officers and the Business Judgment Rule, 60 Bus. Law. 439 (2005) [hereinafter Johnson, Business Judgment Rule]
18. with Lawrence A. Hamermesh & A. Gilchrist Sparks III, Corporate Officers and the Business Judgment Rule: A Reply to Professor Johnson, 60 Bus. Law. 865 (2005) ;
19. see also Gregory Scott Crespi, Should the Business Judgment Rule Apply to Corporate Officers, and Does It Matter?, 31 Okla. City U. L Rev. 237 (2006).
20. There is little caselaw describing the scope of an officer's duty of care or contrasting the duty from that of a director.
21. See Johnson & Millon, supra note 7, at 1600-01. The liability stakes are large because officers, unlike directors, may not be exculpated from personal liability for breaching the duty of care under Delaware law and the law of most other states.
22. See, e.g., DEL. Code Ann. tit. 8, § 102 (b) (7) (2001) (permitting exculpation from liability for breaches of the duty of care by directors but not officers).
23. See also McPadden v. Sidhu, 964 A.2d 1262, 1277 (Del. Ch. 2008) (dismissing case against directors, but not officer, in duty of care case). As to good faith, in November 2006 the Delaware Supreme Court clarified that good faith is not an independent fiduciary duty but is a subsidiary element of the duty of loyalty.
24. See Stone ex rel. Am South Bancorporation v. Ritter, 911 A.2d 362, 370 (Del. 2006). The court also stated that the fiduciary duty of loyalty is not limited to cases involving conflicts of interest. See id. These developments on good faith in the director context raise the important question of whether they will carry over to the fiduciary duties of corporate officers in the same way.
25. See In re World Health Alternatives, Inc., 385 B. R. 576, 591-94 (Bankr. D. Del. 2008) (addressing oversight responsibilities of officers).
26. See Johnson & Millon, supra note 7, at 1636-39.
27. Compare Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 955-56 (Del. 1985) (stating that directors may consider non-shareholder interests in implementing defensive measures)
28. with Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, 181 (Del. 1985) (holding that directors must exclusively advance shareholder interests in sale of control or break-up context).
29. 965 A.2d 695 (Del. 2009).
30. Id. at 708.
31. Id. at 708-09.
32. Id. at 705-06.
33. Id. at 708.
34. Id. at 709.
35. Officers, of course, are agents of the corporation, unlike directors. See Johnson & Millon, supra note 7, at 1605-08. The usual standard of care for an agent is a standard of ordinary care or simple negligence, not the standard of gross negligence long applied in Delaware to directors.
36. See id. at 1631. It is worth remembering, in the officer context, the insightful observation of Justice Frankfurter: But to say that a man is a fiduciary only begins analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from duty? SEC v. Chenery Corp., 318 U. S. 80, 85-86 (1943). These are highly pertinent questions yet to be authoritatively resolved with respect to corporate officers.
37. This remains true of most U. S. law school casebooks as of early 2009.
38. See Lyman Johnson, Having the Fiduciary Duty Talk: Model Advice for Corporate Officers (and Other Senior Agents), 63 Bus. Law. 147, 148 n. 7 (2007) (hereinafter Johnson, Having the Fiduciary Duty Talk].
39. See Johnson & Millon, supra note 7, at 1600 & n. 10, 1609-10.
40. See Johnson, Having the Fiduciary Duty Talk, supra note 19, at 148 & n. 7.
41. See Tom Baker & Sean J. Griffith, Predicting Corporate Governance Risk: Evidence from the Directors' & Officers' Liability Insurance Market, 74 U. Chi. L. Rev. 487, 516 (2007) (noting that legal literature has "given a narrow definition" to "corporate governance, " a broad concept).
42. The body of scholarship devoted to addressing issues associated with corporate officers is growing but remains small. Besides Johnson & Millon, supra note 7
43. see Z. Jill Barclift, Fuzzy Logic and Corporate Governance Theories, 6 Pierce L. Rev. 177 (2007) ;
44. Crespi, supra note 8;
45. Hamermesh & Sparks, supra note 8;
46. David A. Hoffman, Self-Handicapping and Managers' Duty of Care, 42 Wake Forest L. Rev. 803, 807-12 (2007) ;
47. Johnson, Corporate Officers and the Business Judgment Rule, supra note 8;
48. Johnson, Having the Fiduciary Duty Talk, supra note 19;
49. Aaron D. Jones, Corporate Officer Wrongdoing and the Fiduciary Duties oj Corporate Officers Under Delaware Law, 44 Am. Bus. L. J. 475 (2007) ;
50. Douglas C. Michael, The Corporate Officer's Independent Duty as a Tonic for the Anemic Law of Executive Compensation, 17 J. Corp. L. 785 (1992) ;
51. Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level, 61 FLA. L. Rev. 1 (2009).
52. For a succinct description of how corporate law seeks to mitigate what organizational theorists describe as the managerial "agency problem" through various governance mechanisms, see Sanjai Bhagat, Brian Bolton & Roberta Romano, The Promise and Peril of Corporate Governance Indices, 108 Colum. L. Rev. 1803, 1809-14 (2008).
53. See In re Walt Disney Co. Derivative Litig., 907 A.2d 693 (Del. Ch. 2005)
54. aff'd, 906 A.2d 27 (Del. 2006).
55. See Disney, 907 A.2d at 695. The plaintiffs were represented by the sophisticated and deeply experienced law firms of Rosenthal, Monhait, Gross & Goddess, P. A., and Milberg Weiss Bershad Hynes & Lerach L. L. P. See id.
56. Id. at 777 n. 588 ("The parties essentially treat both officers and directors as comparable fiduciaries, that is, subject to the same fiduciary duties and standards of substantive review. Thus, for purposes of this case, theories of liability against corporate directors apply equally to corporate officers, making further distinctions unnecessary").
57. See Appellants' Opening Brief at 36, In re Walt Disney Co. Derivative Litig., 906 A.2d 27 (Del. 2006), (No. 411, 2005), available at http://entrepreneur.typepad.com/conglomerate/disney/Appellantsl. pdf ("[T]he business judgment rule does not apply to Eisner or Litvack acting as officers or to Russell acting as Eisner's personal 'gratuitous agent.'").
58. See Disney, 906 A.2d at 46 n. 38.
59. Lyman P. Q. Johnson & Robert V Ricca, (Not) Advising Corporate Officers About Fiduciary Duties, 42 Wake Forest L. Rev. 663, 669-78 (2007).
60. As aptly noted by Professor Tanina Rostain, "[W]e have a limited understanding of the place of general counsel, and more generally the legal department, inside the corporation. " Tanina Rostain, General Counsel in the Age of Compliance: Preliminary Findings and New Research Questions, 21 Geo. J. Legal Ethics 465, 466 (2008).
61. A somewhat parallel argument in the public arena has been made by President Obama's recent appointee to head the Office of Legal Counsel in the U. S. Department of Justice-Dawn Johnsen-who argues that legal advisors within the executive branch of the federal government can serve as an underappreciated source of constraint on executive power.
62. See Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559, 1564-65 (2007).
63. See Jessica Erickson, Corporate Misconduct and the Perfect Storm of Shareholder Litigation, 84 Notre Dame L. Rev. 75, 81-82, 87-92 (2008) (describing fiduciary duty litigation).
64. This aspect of corporate counsel's position within a company has been noted by several general counsel. See Rostain, supra note 31, at 471. For a helpful explanation of the many functions carried out by general counsel, and an argument that general counsel are well situated to promote corporate integrity
65. see Sarah Helene Duggin, The Pivotal Role of the General Counsel in Promoting Corporate Integrity and Professional Responsibility, 51 St. Louis U. L. J. 989 (2007).
66. A chief goal of liability rules in corporate law is to deter wrongdoing by directors and officers. See Reinier Kraakman, Hyun Park & Steven Shavell, When Are Shareholder Suits in Shareholder Interests?, 82 Geo. L. J. 1733, 1738 (1994).
67. See Bernard Black, Brian Cheffins & Michael Klausner, Outside Director Liability, 58 Stan. L. Rev. 1055, 1110-12 (2006) (noting that outside directors rarely incur personal liability for fiduciary duty breaches due to indemnification, exculpation, and D &O insurance).
68. See Johnson & Ricca, supra note 30.
69. The series of web site announcements included an initial notice of the study featured on the ACC homepage, a highlighted item in the ACC News section, and a reminder notice. The online invitation included in each posting was prepared as a means of generating interest from a wide variety of in-house counsel. The announcement stated: Be a participant in a project which seeks to gather information on whether in-house counsel are advising their corporate officers as to their fiduciary duties. This survey, which, focuses on the interaction between corporate officers and legal counsel, addresses a serious gap in our understanding about the delivery of legal advice to business managers.
70. The announcement was first available on September 17, 2007, at www.acc.com/feature.php?fid=1275. It is no longer available. Each web posting also contained a link to the online survey.
71. The newsletter stated: A new project, which seeks to gather information on whether in-house counsel are advising their corporate officers on their fiduciary duties, is underway and you are invited to participate. This survey focuses on the interaction between corporate officers and legal counsel, and will address the significant gap in our understanding about the delivery of legal advice to business managers.
72. Association of Corporate Counsel, ACC... Your Monthly Member Update, Survey: Are You Providing Adequate Fiduciary Duty Advice (Oct. 12, 2007), http://news.acca.com/accammu/issues/2007-10-12. html;
73. Association of Corporate Counsel, ACC Committee News, Are You Giving Enough Fiduciary Duty Advice? (Sept. 26, 2007), http://news.acca.corn/accacomm/ issues/2007-09-26.html. The newsletter postings also contained the link to the online survey.
74. Counsel were promised confidentiality, as reflected in the survey attached as Appendix A.
75. See Survey Monkey, www.surveymonkey.com (last visited June 15, 2009).
76. One respondent did not report annual revenues.
77. Information on the various settings where counsel gives advice to officers is not summarized in the tables but is described in the text. See infra Part II.
78. See Johnson & Ricca, supra note 30, at 670-71.
79. One reason caselaw more frequently focuses on loyalty claims is that directors typically are exculpated from liability for care breaches but not from liability for loyalty breaches. See supra note 9. As stated by the Corporate Director's Guidebook, the duty of loyalty broadly requires a director's conduct to be "in the best interests of the corporation... [and] there is a variety of situations in which a director's loyalty can be questioned." Comm. on Corp. Laws, Section of Bus. Law, Am. Bar Ass'n, Corporate Director's Guidebook (5th ed. 2007)
80. reprinted in 62 Bus. Law. 1479, 1497 (2007).
81. See supra notes 8-11 and accompanying text.
82. All of the open-ended comments are on file with The Business Lawyer.
83. See Johnson, Having the Fiduciary Duty Talk, supra note 19, at 147-48.
84. See Johnson & Ricca, supra note 30, at 670-71 (reporting results of survey of advice-giving practices of outside counsel).
85. John C. Coffee, Jr., Gatekeepers: The Professions and Corporate Governance 195 (2006). Coffee concludes, however, that outside counsel likely can play a more effective gatekeeping role.
86. Id. at 195, 230-31. For an argument that inside counsel have great potential to serve as corporate "gatekeepers, "
87. see Sung Hui Kim, Gatekeepers Inside Out, 21 Geo. J. Legal Ethics 411 (2008).
88. See also Rostain, supra note 31. In most states, moreover, inside legal counsel are permitted to provide legal services only to the corporate entity, thereby removing a potential conflict of interest as to who exactly is the client. Charles W. Wolfram, The ABA and MDPs: Context, History, and Process, 84 Minn. L. Rev. 1625, 1650 (2000). For an example of how a lawyer's failure to comply with professional obligations when representing both a company and a senior officer can lead to serious sanctions
89. see United States v. Nicholas, 606 F. Supp. 2d 1109 (CD. Cal. 2009) (referring lawyer to state bar for discipline for breaching the duty of loyalty).
90. See Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 Conn. L. Rev. 1185, 1208-10 (2003).
91. A recent example is seen in the advice given by attorney Robert Joffe, a partner at Cravath, Swain and Moore, who regularly advises boards of directors: "What you can tell directors is that if they pay attention to the law and live up to their fiduciary duties of loyalty and care, they personally are not going to be in peril." Stephanie Francis Ward, What I Did During the Meltdown: "You Can't Calm Directors by Telling Them It's All Going to Be OK" 95 A. B. A. J. 50, 50 (2009). Such advice, however useful for directors, is not being conveyed to officers by lawyers such as Mr. Joffe because it is not the role for which they are engaged.
92. Model advice for such officers can be found in Johnson, Having the Fiduciary Duty Talk, supra note 19, at 154-55.
93. Although Delaware courts tend not to hold directors liable for misconduct engaged in by lowerlevel employees, they may not so readily absolve corporate officers for similar failures to monitor. See Guttman v. Huang, 823 A.2d 492, 507 (Del. Ch. 2003) (stating that directors are not expected to discover accounting irregularities involving corporate conduct "deep below the surface of the financial statements") ;
94. Stone ex rel. Am South Bancorporation v. Ritter, 911 A.2d 362, 372 (Del. 2006) (noting that "'[m]ost of the decisions that a corporation, acting through its human agents, makes are, of course, not the subject of director attention'"
95. (quoting In re Caremark Int'l Inc. Derivative Litig., 698 A.2d 959, 968 (Del. Ch. 1996)) (alteration in original)).
96. See Johnson & Ricca, supra note 30, at 681-91;
97. Johnson, Having the Fiduciary Duty Talk, supra note 19, at 155-56.
98. Denise Oliveira, In-House Counsel at Risk for Malpractice Claims, LAW360, Jan. 8, 2009, http://securities.law360.com/articles/81660 (noting increase in claims asserted against inside counsel in 2008) (subscription service).
99. See Frank H. Easterbrook & Daniel R. Fischel, Corporate Control Transactions, 91 Yale L. J. 698, 700-03 (1982) (explaining divergent interests of corporate principals and agents, and how fiduciary duty rules work to reduce this problem).
100. For a description of this view with the argument that shareholders would plan better with a "paternalistic nudge" from legislators
101. see Judd F. Sneirson, Soft Paternalism for Close Corporations: Helping Shareholders Help Themselves, 2008 WIS. L. Rev. 899, 914-18. Delaware permits contracting around, or opting out of altogether, fiduciary duties in unincorporated business entities
102. see, e.g., Del. Code Ann. tit. 6, §. 17-1101 (d) (2007), but does not permit that with respect to director loyalty in the corporation.
103. See supra note 9.
104. William H. Simon, Whom (or What) Does the Organization's Lawyer Represent?: An Anatomy of Intraclient Conflict, 91 Cal. L. Rev. 57, 64 (2003).
105. The study also revealed, surprisingly, that about one out of four general counsel do not advise both officers and directors. We do not know which group the various respondents do not advise or why.
106. See supra notes 19-21 and accompanying text.
107. See supra notes 8-11 and accompanying text.
108. The risk of actually paying out-of-pocket damages will depend on the nature and extent of the D &O insurance policy coverage, but reputational harm, lost time, and aggravation will be incurred.
109. See Black, Cheffins & Klausner, supra note 36, at 1056.
110. See also Seymour Roberts, Jr., Director and Officer Insurance Policies and Proceeds, in Norton Annual Survey of Bankruptcy Law 231 (William N. Norton, Jr. ed., 2008).
111. See Johnson & Millon, supra note 7, at 1607. The court in the recent Gander decision stated that officers owe the same duties as directors
112. see Gantler v. Stephens, 965 A.2d 695, 708-09 (Del. 2009), but, as noted earlier, several questions about officer duties nonetheless remain.
113. See supra notes 8-11 and accompanying text. Also, as officers of the company, chief legal officers themselves are agents whose conduct can create liability for the corporation.
114. See Grace Giesel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, 86 Neb. L. Rev. 346, 359-63 (2007).
115. See Johnson & Ricca, supra note 30, at 681-83. General counsel can more authoritatively do so if retained by the board of directors, not the CEO.
116. Id. at 690. Most general counsel today, however, appear still to report to the CEO, Rostain, supra note 31, at 473, though many have a formal connection to the board by virtue of serving as secretary
117. id. at 485-86. Also, Professor Kim urges that counsel for business units report directly to general counsel, not solely to the head of the business unit. Kim, supra note 50, at 641-42 & n. 265.
118. Donald C. Langevoort, Resetting the Corporate Thermostat: Lessons from the Recent Financial Scandals About Self-Deception, Deceiving Others and the Design of Internal Controls, 93 Geo. L. J. 285, 288 (2004).
119. See also Donald C. Langevoort, The Organizational Psychology of Hyper-Competition: Corporate Irresponsibility and the Lessons of Enron, 70 Geo. Wash. L. Rev. 968, 973-74 (2002) (describing how hyper-competition and high-risk strategies among executives result from overconfidence and aggressiveness).
120. See Black, Cheffins & Klausner, supra note 36, at 1059.
121. See Johnson, Business Judgment Rule, supra note 8, at 458-61.
122. See supra notes 9-10 and accompanying text. A chief reason for the current financial subprime crisis is that executive compensation schemes created incentives toward engaging in risky organizational behavior. U. S. Secretary of the Treasury Timothy Geithner noted, "Excessive executive compensation that provides inappropriate incentives... has played a role in exacerbating the financial crisis. " Stephen Labaton, Obama Plans Fast Action to Tighten Financial Rules, N. Y. Times, Jan. 25, 2009, at A1. Executives must, in a parallel fashion, know they personally bear downside risk-through possible liability-as well. Without that, the organization bears risk but the individual officers do not. Growing concern about rectifying this asymmetry of risk bearing-in essence, a part of healthy risk management-lies behind widespread outrage over executive bonuses at struggling or failing companies.
123. See Bhagat, Bolton & Romano, supra note 24, at 1812-14;
124. see generally Lucian Bebchuk & Jesse Fried, Pay Without Performance: The Unfulfilled Promise of Executive Compensation (2004).
125. In the delivery of health care services context, it has recently been argued that the utility gained from increased agent care under a tougher liability standard may be offset by a decrease in performance on less observable tasks undertaken by an agent. Martina Samwer, When Less liability Leads to More Care: Adverse Effects of Liability Regimes in Multitask Principal Agent Settings, 4 Rev. L. & Econ. 641, 641-42 (2008). Likely, physician conduct is more observable, especially given detailed recordkeeping, than executive conduct.
126. See Rakesh Khurana, From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession 318 (2007). Thus, it is not clear that executives could move from engaging in more observable conduct to engaging in less observable conduct. Moreover, executives, perhaps unlike a physician in charge, are subject to monitoring of their behavior by a superior who could reprimand them for a nonproductive change in conduct or shift responsibility to another person. Finally, the liability standard for officer conduct remains somewhat unclear
127. see supra notes 9-10 and 18 and accompanying text, and this Article is not addressing, as a policy matter, what that standard should be. Rather, whatever is one's normative position on the relative benefits of tighter versus looser liability schemes, officers should, as a positive matter, be clearly advised of their duties so they can discharge their functions on behalf of the company accordingly.
128. For another take on this issue, see Shane A. Johnson, Harley E. Ryan, Jr. & Yisong S. Tian, Managerial Incentives and Corporate Fraud: The Sources of Incentives Matter, 13 Rev. Fin. 115, 117-18, 142 (2009) (stating that firms with lower likelihood of managerial fraud detection, suggesting lower expected costs of fraud, are more likely to engage in fraud).
129. General counsel elsewhere have strongly urged that responsibility for determining appropriate levels of company risk rests with them.
130. See Rostain, supra note 31, at 473. Consequently, advising officers about their duties-given that it may bear on risk/reward calculations and affect corporate welfare-should be widely undertaken by corporate counsel.
131. Edward B. Rock, Saints and Sinners: How Does Delaware Corporate Law Work?, 44 UCLA L. Rev. 1009 (1997). Such "sermons" (judicial opinions) do little good, of course, if they stop with the lawyers who hear them. Perhaps a better metaphor is that the judiciary is speaking to a convention of religious leaders who then must take the received learning back to their own parishioners (officers) if it is to have any impact.
132. See Lyman Johnson, Counter-Narrative in Corporate Law: Saints and Sinners, Apostles and Epistles, Mich. St. L. Rev. (forthcoming 2009) (describing how lawyers may fail to convey the full moral flavor of judicial "sermons" to their clients).
133. See supra notes 7-11 and accompanying text.
134. See Mark J. Roe, Delaware's Competition, 117 Harv. L. Rev. 588, 593 (2003) (arguing that Delaware faces competition on corporate law issues from the federal government) ;
135. Robert B. Thompson & Hillary A. Sale, Securities Fraud as Corporate Governance: Reflections upon Federalism, 56 Vand. L. Rev. 864, 886 (2003) (noting the "dramatic growth in the role of federal law in regulating officers and directors").
136. See supra notes 25-29 and accompanying text.
137. See supra notes 8-11 and accompanying text.
138. See Roe, supra note 75, at 593.
139. Baker & Griffith, supra note 22, at 517-25, 539-43.
140. See Bhagat, Bolton & Romano, supra note 24, at 1870-76.