Jay Cohen on the Delaware McDonald’s Decision [Podcast]


By Adam Turteltaub

For years Caremark has set the standard for expectations for board members. The notable Delaware case made clear that boards should exercise reasonable care in overseeing an organization. In practice that includes obtaining information about the organization’s compliance efforts and responding when signs of potential violations are found.

As Jay Cohen, of counsel at the law firm Giordano, Halleran & Ciesla, PC explains, now a new decision (In re McDonald’s Corporation Stockholder Derivative Litigation) extends that same duty of oversight to corporate officers within their area of expertise. This significantly raises the bar for executives when it comes to ensuring the organization is operating in a compliant manner.

Perhaps even more significantly, only two executives at a corporation – the CEO and Chief Compliance Officer – are expected to exercise oversight throughout the entire organization. This, he argues, has the impact of increasing both the scope and importance of the compliance role within the organization.

So, what should organizations and their compliance teams do in the wake of this decision?  Jay recommends that organizations raise the stature of the compliance team. Second, look at recruiting individuals for compliance who have a history in leadership to match the role. Third, build the compliance program around impact, not just activity.

Listen in to learn more about what the McDonald’s decision says, and what it means for your compliance program.