Volume 86, Number 3

June 2011

A Modified Caremark Standard to Protect Shareholders of Financial Firm from Poor Risk Management

Alec Orenstein

The recent collapse of the world financial system exposed excessive risk taking at
many of the largest financial services firms. However, when shareholders of
Citigroup sued the board of directors alleging that the board failed to adequately
monitor the firm’s risk exposure, the Delaware Chancery Court dismissed the suit
under the famous Caremark case. Caremark held that a board’s failure to monitor
will not result in liability unless there was a failure to implement a monitoring
system or a “sustained or systematic” failure to use that monitoring system. This
deferential standard is premised on an assumption that managers are risk averse
and the law should encourage risk taking. However, certain characteristics of financial
firms make such firms more prone to risk taking and more susceptible to catastrophic
losses resulting from that risk taking than other firms. In this Note, I argue
that Caremark should be reworked in cases involving managers of financial firms
in order to deter the excessive risk taking that caused such massive losses to shareholders
of these firms recently. This standard should take the form of a gross negligence
standard that allows the court to take a close look at whether management
took the necessary steps to prevent their firm from being exposed to excessive risk.