By William E. McNally and Barbara E. Cotton

There is much academic and judicial discussion of the potential liability of directors for tortious and other acts, but little focus on the potential liability of directors for criminally or near criminally culpable acts. (These “near criminally culpable” acts are frequently in the nature of intentional torts.) This article will therefore seek to provide this focus.

A difficulty is that the case law does not articulate that a different standard is being applied to impose civil liability on directors when their conduct goes beyond that which
is relatively benign and becomes criminally or near criminally culpable. A close reading of the case law indicates that many courts are applying different standards, however, and, in general, a lower threshold for liability for criminally or near criminally culpable behaviour.

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