Robert Brush And Michael L. Byers Publish Paper In The 2017 Edition Of The Annual Review Of Civil Litigation: "Separate, Independent And Confounding: Understanding Personal Liability For Corporate Act

While corporations might be legal fictions, the protection from personal liability they afford to their directors, officers and employees is very real. Determining the boundaries of that protection, however, can be difficult. Individuals are often sued because of their role in alleged corporate wrongs. In many cases, they are named for tactical reasons: to obtain discovery rights, trigger insurance coverage, or to create leverage in negotiations. While the enthusiasm for initiating claims against such persons continues, there is a lot of uncertainty over when actual liability will result. Many court decisions find liability without engaging in a principled discussion of the issues. Other decisions decline to find liability without advancing a coherent explanation rooted in the applicable principles. Since a great many of the decisions in the area have arisen out of preliminary motions, the jurisprudence does a relatively poor job of articulating when individuals will be liable, rather than when they could be. The paper appears in the 2017 edition of the Annual Review of Civil Litigation.