The media reported this weekend that directors of the Boeing corporation just settled a lawsuit by shareholders, in connection with the massive problems of the Boeing 737 MAX, a debacle that included planes literally falling from the sky.
As we were reminding everyone recently, sitting on a board of directors isn’t all cocktails and schmoozing, it’s also real important work that can entail very real liability. In the case at hand, the liability at issue resulted in a settlement of US$237M which, to say the least, isn’t pocket change. This is a good example of the reality that, yes, being a director entails exposure to eventual lawsuits, including by shareholders who may be impacted by bad decisions by the corporation’s board.
Here, the shareholders sued, based on the alleged directors’ failure, in their fiduciary responsibility, to adequately monitor safety issues of with the new model (then) being developed by Boeing. According to the shareholders’ claim before the courts, the lack of discussions and monitoring of safety issues by the board amounted to negligence. For example, the shareholders demonstrated that the Boeing board has created no specific committee to monitor safety issues which, in turn, allowed the corporation’s adoption of “unsafe business practices”.
This case also serves as a good reminder that, generally speaking, any potential director would do well to make sure he/she will be covered by adequate E&O insurance, before accepting to sit on the board of any corporation. Of course, it goes without saying that the coverage of those policies should be adapted to each case, being understood, for example, that acting on the board of a local business that runs restaurants does not entail the same level of risk and exposure as sitting on the board of a multinational aerospace company.
Yup, the reality is that being a director may have you sued down the line. Expect it, plan for it, including by taking your role seriously and making sure that the minutes and resolutions do reflect discussions and the work done by the board, over time. You never know when that evidence may come-in handy, to avoid liability. Failing that, decent E&O insurance coverage may be your best ally, make sure it is in place.