Incredible monetary losses for public companies in the current financial downturn have again raised questions about the scope of a director’s liability for such failures. Coupled with claims for breach of federal and state securities laws, individual and class-action complaints already filed challenge the proper exercise of a director’s fiduciary duties when faced with investments in complex financial instruments whose diminished value may have been affected by newer accounting (i.e., mark-to-market) and SEC rules (i.e., eliminating the uptick rule and permitting naked short sales) for public companies.
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