Fairness Standard and Business Judgment Rule

FAIRNESS STANDARD FOR DIRECTORS

Director and Officer Liability under ERISA

Under ERISA, ''employers'' must make all necessary contributions to multi-employer pension plans pursuant to the plans' terms or the terms of a collective bargaining agreement. Every employee benefit plan must have a funding procedure and fully explain how and under what circumstances payments are to be made to the plan. If these responsibilities are not carried out or carried out in an untimely manner, a civil enforcement action can be brought against the plan or the employer. An "employer" is defined as "any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan.

Corporate Creditors

Generally, directors do not owe a fiduciary duty to a corporate creditor when that creditor has contracted exclusively with the corporation. However, a director may owe a fiduciary duty to a corporate creditor to protect the corporate assets when the corporation becomes insolvent.

Registration Requirements for Securities Brokers and Dealers

Most brokers and dealers are required under Section 15 of the Securities Exchange Act of 1934 to register with the Securities and Exchange Commission and with a self-regulatory organization such as a national stock exchange before engaging in the securities business.

Investor Suitability Requirements for Broker Dealer Recommendations

Broker dealers may make investment recommendations to investors only if the broker dealer first determines that the recommended investment would be suitable for the investor. Suitability depends upon the investor's tolerance for risk, other investments, income, net worth, financial requirements, and investment objectives.