Abstract

This essay focuses on the classic 1940 case Litwin v. Allen, 25 N.Y.S.2d 667 (N.Y. Sup. Ct. 1940), in which the court ruled that directors and officers of a bank were liable for losses suffered by the bank from a transaction in which the bank bought a bond at a discounted price subject to an option permitting the seller to buy it back at the same price (up to) six months later. The price of the bond fell dramatically during the option period, the seller declined to buy it back, and the bank was left with the loss. The court ruled that the defendant directors and officers were not protected by the business judgment rule—which precludes liability for losses from good faith business decisions—because the deal entailed assuming an extra risk of loss without the prospect of extra return. In effect, it was a no-win bet in which the bank would break even at best. Thus, Litwin articulates one way that corporate management (and indeed any fiduciary) can be held accountable for losses suffered by the corporation (or principal) other than because of a disabling conflict of interest.

Although the Litwin court states the rule correctly, it is wrong on the facts. What the court fails to see is that the bank did bargain for extra return because it bought the bond at a discount from market value. Moreover, the bank could have hedged against the risk of loss and may indeed have been hedged by virtue of diversification. But to understand why the result in Litwin is wrong, one must understand the fundamentals of time value of money, going concern value, option pricing, portfolio theory, and many other topics typically covered in a class on corporate finance. Conversely, Litwin can be seen as a short course on the legal aspects of corporate finance and as such is an excellent teaching case. Despite being wrong on the facts, Litwin remains good law and continues to be followed by the courts, most notably by the Second Circuit in Joy v. North, 692 F.2d 880 (2d Cir. 1982), another seminal decision authored in 1982 by the late Judge (and Professor) Ralph Winter. Like Litwin, Winter’s opinion in Joy can serve as a clinic in corporation law as seen at a time when legal scholars were just beginning to recognize the relevance and power of financial concepts and when new transactions and governance issues challenged old ways of thinking. This essay focuses on Litwin itself and the flaws in the reasoning thereof. The sequel will focus on the implications of the Litwin rule in connection with the interpretation of the business judgment rule as articulated in Joy by Judge Winter.

ISSN

1930-627X

Keywords

Law, : business judgment rule, no-win, waste, yield, premium, discount, hedge, option, put, call, short sale, forward sale, futures, arbitrage, default risk, interest rate risk, credit default swap, off-balancesheet, diversification, law of large numbers, synthetic

Disciplines

Law

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