It is no secret that COVID-19 has been difficult for businesses, both in terms of financial health and longevity. In addition to keeping your business afloat, what else should you consider “essential” during this time of economic volatility? Your fiduciary duties. Whether a director, an officer, or a manager, if you are part of an entity’s management, you owe fiduciary duties to the entity itself and its owners, and, in times of severe financial distress, these duties may in fact be owed to additional third parties. This article provides a recap of duties and suggestions on how you, as a member of management, can protect yourself while also furthering the best interests of the company.
Fiduciary Duties of Management
As a general principle, if you are a director, officer, or manager (collectively, “Management”), you owe duties of care and loyalty to the corporation or company (collectively, the “Company”) and its shareholders, partners, or members (collectively, “Stakeholders”). Depending on the type of entity involved—a corporation, a limited liability company, or otherwise—the application of these duties may be more nuanced, but the principles are largely the same.
The duties you owe to the Company and its Stakeholders could eventually shift to include other third parties—creditors—if your Company becomes insolvent. It is important to be mindful of your Company’s financial performance and seek the guidance of experienced counsel to better understand your Company’s solvency and prepare strategies to minimize the risk of breach of fiduciary duties.
Keep These on Your “To-Do” List
COVID-19 presents a unique set of challenges, and the following “best practices”—should remain on your “to-do” list in all circumstances:
Understanding Your Exposure
Following the best practices above may help reduce the risk of litigation and limit challenges to Management decisions. You should be familiar with your Company’s governing documents to better understand your risk exposure.
You should also examine your director and officer (“D&O”) insurance coverage and be aware of the type and limits of your Company’s policy. If you do not have D&O coverage, consider whether promptly procuring such a policy is feasible and makes sense from a business perspective. Despite the uncertainties, it is essential that each member of Management remain vigilant in fulfilling his or her fiduciary duties—during COVID-19 and beyond. If you have specific questions about the topics discussed in this article or need guidance on how to implement these best practices in your company, Cokinos | Young STRUCTURE, the transactional team of Cokinos | Young, would be happy to discuss and help tailor a plan that fits your company’s individual needs.