Directors & Officers
Burnham Brown has an extensive history representing board members, officers and directors, in a variety of legal disputes. Our experience in this area of litigation includes claims under For Profit and Not For Profit Directors' and Officers' liability policies and other specialized policies including Global Financial Services/Investment Company Professional and Management liability policies and Media Special Risk policies. The theories of liability asserted in these cases encompass claims for wrongful exclusionary practices impacting members of organizations, breach of fiduciary duty, fraudulent business practices, false advertising, right of association, and retaliation. Our litigation experience extends beyond claims asserted against officers and directors of corporations to include claims against nonprofit entities and associations, and limited and general partnerships.
Areas of Expertise
- Breach of fiduciary duty
- Fraud and embezzlement
- Shareholder and partnership disputes
- Discrimination, retaliation, and abuse of board powers
- Improper assessment and collection practices by Homeowners Association Boards
Our attorneys have successfully defended lawsuits brought under a variety of state and federal statutes including the Sherman Act, the Lanham Act, the False Claims Act and California Business and Professions Code section 17200. In one large False Claims Act case we managed the complex litigation, involving five separate directors each with separate counsel, and negotiated a settlement with the Department of Justice, in Washington, DC. Burnham Brown attorneys are thoroughly familiar with the Davis-Sterling Act and requirements therein including ability to bring suit. Burnham Brown has also represented professional organizations that were sued for excluding professional members, including medical organizations.
Our trial attorneys have represented numerous residential associations, including HOAs and Condo HOAs, individual board members and property managers. Burnham Brown attorneys regularly handle claims involving failure to maintain reserves, improper assessments and collection practices, discrimination in application of association rules, discrimination, retaliation, abuse of influence, embezzlement of funds, and improper elections and board meetings. Burnham Brown attorneys have also litigated claims for declaratory relief concerning application of CC&Rs, and injunctive relief.
We have successfully prosecuted "business judgment rule" defenses on behalf of individual directors of various sized businesses and organizations. Similarly we have represented public figures and elected officials against charges of conflict of interest or other misfeasance. Our real estate and construction attorneys have experience and training in numerous aspects of the "business side" of real estate transactions including real estate brokerage standards of care and operations. In addition, Burnham Brown attorneys regularly defend real estate brokers, agents, property managers, appraisers and other real estate professionals. We have defended Life Insurance brokers in lawsuits involving errors and omissions and allegations of unpaid wages and commissions. Our attorneys have the knowledge and litigation experience to assess and plan the best and most efficient strategy to defend these matters, understanding that company reputations, resources, and bottom-line profits are at risk.
- Defended Condominium Association Board against claims for abuse of influence by board members, discrimination in housing, discrimination in application of design committee review rules, and embezzlement of funds.
- Defended ten officers in a shareholders derivative suit filed by two other officers, who alleged breaches of company bylaws, violation of fiduciary duties and fraud.
- Defended a 50% member of an LLC involved in the construction business in an arbitration alleging violations of fiduciary duties, acts of fraud and theft.
- Defended Homeowners Association against claims for breach of fiduciary duty, failure to maintain, inadequate reserves, and improper assessments and collection practices.
- Defended Condominium Association Board against claims for discrimination in application of rules such as architectural committee which permission is required from before allowing homeowners to make aesthetic changes to homes and in prioritization of use of available funds in repairs to common areas and individual units.
- Defended an individual who had acted as partner in several family partnerships who was accused of theft, violation of fiduciary duties and elder abuse. Our attorneys defeated a Temporary Restraining Order seeking to deny right to use property and obtained a Preliminary Injunction against the opposing party preventing that party from diverting funds from partnership accounts.
- Published decision: The Jack Russell Terrier Network of Northern California v. The American Kennel Club, Inc., The Jack Russell Terrier Club of America, et al., (2005) 407 F. 3d 1027 (successfully defended national breed club's "conflicting organization" rule prohibiting dual registration of terriers with both JRTCA and the American Kennel Club)
- Defended eight officers and directors of a prominent Chinese benevolent association sued in a derivative action. Burnham Brown resolved the case before an answer was filed and negotiated a settlement that included persuading plaintiffs to drop their six-figure attorney fees claim.
- Defended corporation's Board of Directors sued in a derivative action where the plaintiff was seeking to avoid his stock sale agreement. Our attorneys prevailed on a motion for summary adjudication on behalf of the corporation's Board of Directors.
- Defended non-profit organization from claims that one of its employees sexually touched one of its minor clients.
- Defended Homeowners Association Board in discrimination and harassment action by homeowners filed through HUD.
- Defended Homeowners Association Board against claims for retaliation for making complaints.
- Provide insurance coverage advice as personal counsel on a multi-million dollar claim involving investment advice, financial planning and disallowed tax shelters.