Digital Commons Network^™

Understanding Cyber Risk: Unpacking And Responding To Cyber Threats Facing The Public And Private Sectors, Lawrence J. Trautman, Scott Shackelford, Brian Elzweig, Peter Ormerod

University of Miami Law Review

Cyberattacks, data breaches, and ransomware continue to pose major threats to businesses, governments, and health and educational institutions worldwide. Ongoing successful instances of cybercrime involve sophisticated attacks from diverse sources such as organized crime syndicates, actors engaged in industrial espionage, nation-states, and even lone wolf actors having relatively few resources. Technological innovation continues to outpace the ability of U.S. law to keep pace, though other jurisdictions including the European Union have been more proactive. Nation-state and international criminal group ransomware attacks continue; Sony’s systems were hacked by a ransomware group; MGM Resorts disclosed that recovery from their September 2023 hack …

Understanding Cyber Risk: Unpacking And Responding To Cyber Threats Facing The Public And Private Sectors, Lawrence J. Trautman, Scott Shackelford, Brian Elzweig, Peter Ormerod

University of Miami Law Review

Cyberattacks, data breaches, and ransomware continue to pose major threats to businesses, governments, and health and educational institutions worldwide. Ongoing successful instances of cybercrime involve sophisticated attacks from diverse sources such as organized crime syndicates, actors engaged in industrial espionage, nation-states, and even lone wolf actors having relatively few resources. Technological innovation continues to outpace the ability of U.S. law to keep pace, though other jurisdictions including the European Union have been more proactive. Nation-state and international criminal group ransomware attacks continue; Sony’s systems were hacked by a ransomware group; MGM Resorts disclosed that recovery from their September 2023 hack …

Caremark's Hidden Promise, Ezra Wasserman Mitchell

Loyola of Los Angeles Law Review

In re Caremark, decided in 1996, established for the first time a director’s duty to monitor under Delaware law. A significant amount of jurisprudence and commentary has developed. Almost all of this literature parses the language of the case and those following, and disregards the underlying claims for damages. As a result of this linguistic focus, many have concluded that the duty to monitor largely is toothless and, importantly, deals only with claims of failure to monitor legal risk. A duty to monitor business risk has been disavowed.

Following the money reveals a different story. Classifying the cases according to …

Can Negligent Referral To Another Attorney Constitute Legal Malpractice?, Barry R. Temkin

Touro Law Review

No abstract provided.

Corporate Culture And Erm, Michelle M. Harner

Michelle M. Harner

The attitudes and actions of those viewed as leaders within a company (commonly referred to as “tone at the top”) help to define corporate culture and are critical to implementing a successful enterprise risk management (ERM) program. This paper explores the challenges and benefits of creating a risk-aware corporate culture, including the potential legal implications for boards of directors.

Corporate Culture And Erm, Michelle M. Harner

Faculty Scholarship

The attitudes and actions of those viewed as leaders within a company (commonly referred to as “tone at the top”) help to define corporate culture and are critical to implementing a successful enterprise risk management (ERM) program. This paper explores the challenges and benefits of creating a risk-aware corporate culture, including the potential legal implications for boards of directors.

Oversight Liability For Risk Management Failures At Financial Firms, Robert T. Miller

Robert T Miller

Many people believe that excessive risk-taking at large financial firms was an important cause of the financial crisis in 2007-2008 and thus that preventing another crisis requires improving risk-management systems at such institutions. One way to do this would be to use board oversight liability to hold directors personally liable for failing properly to monitor the risks that their firms are running. The purpose of this Article is to determine what role director oversight liability can efficiently play in improving risk-management practices at large financial firms.

A key contention of the Article is that previous treatments of this problem have …

The Board's Duty To Monitor Risk After Citigroup, Robert T. Miller

Robert T Miller

When Citigroup suffered billions of dollars in losses on subprime securities, some of its shareholders sued the bank’s directors alleging that the losses resulted from breaches by the directors of their duty to properly monitor the risks that the bank was running by holding and dealing in such securities. After the Delaware Court of Chancery dismissed the complaint on the pleadings, many academic commentators argued that the court should have taken the opportunity to articulate more stringent legal standards governing director oversight. This contribution to a symposium at the University of Pennsylvania Law School argues that any significant expansion of …

A Board’S Duty To Monitor, Eric J. Pan

NYLS Law Review

No abstract provided.