Redressing Risk Oversight Failure in UK and US Listed Companies: Lessons from the RBS and Citigroup Litigation

Abstract

In the decade since the onset of the 2007–2008 financial crisis, there have been numerous calls for the directors of failed or rescued banks to be held liable for the significant losses that these collapses inflicted on investors and the general public. In the UK, the high-profile RBS Rights Issue Litigation has come to represent something of a fulcrum of domestic concerns in this regard. Notwithstanding their mixed results, securities law actions alleging disclosure failure have been a fairly popular avenue of attempted redress for investors who were burned in the crisis, as exemplified most pertinently by the successful US litigation emanating from the implosion of Citigroup in 2008. By contrast, directors’ duties actions premised on alleged risk oversight failure in collapsed banks have enjoyed only limited success in the United States, and no real success whatsoever in the UK. This is a remarkable fact, given that the director’s corporate law duty of care would prima facie seem the most direct and overt means of redressing investor losses in such instances. The implication is that in UK (as in US) listed companies today, the duty of care is being progressively usurped in this regard by alternative securities law mechanisms, rendering corporate law increasingly redundant as a meaningful lever of director accountability.