Emerging Economic Force and Litigation Target

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1 Advisen Management Liabilityj PLAINTIFFS BAR TAKES AIM Nonprofit Organizations Emerging Economic Force and Litigation Target Regulators, bankruptcy courts, and even donors take aim at NPOs By Christopher Duca Nonprofit organizations (NPOs), an emerging economic force in the United States, are facing new exposures and claims arising only in part from the recessionary climate and a changing legal landscape. In addition, they are also growing to be the next target of the plaintiffs bar and regulators by virtue of their economic strength. The National Center for Charitable Statistics (NCCS) reports that the number of NPOs has grown 30 percent over the past decade to 1.5 million. The report notes that in the aggregate, NPOs account for 9 percent of wages and salaries and 5.4 percent of U.S. gross domestic product, based on 2010 data from the Bureau of Economic Analysis of the U.S. Department of Commerce. Further, more than 25 percent of adults have volunteered through an NPO, contributing 15 billion hours annually with an economic impact of nearly $280 billion, NCCS reports. Despite the aggregate sector growth, the recessionary climate has placed strain on NPO resources because Plaintiffs lawyers and regulators are increasingly targeting nonprofits as their numbers grow and managers of these organizations face tough challenges in a recessionary economy. 57 December 2011 ADVISEN.COM

2 donations are declining at the same time as demands for services expand. Nonprofits are being forced to make tough decisions with their limited resources in a landscape of ever increasing challenges and demands. Chartered For Good Globalization means that NPOs need to be diligent about grants made at the behest of foreign government officials, even for charitable purposes to avoid unintended violations of the FCPA. NPOs are chartered to serve the public good and are required to operate an organization with appropriate oversight and governance. The management of an NPO is structured similarly to any private entity with a board of trustees or directors overseeing operations. Generally, each director owes fiduciary duties to the organization, which include a duty of loyalty and a duty of care. terest of the NPO, in accordance with its charter and federal, state and local laws. With this duty, there is an inherent responsibility to be informed and to provide oversight regarding the financial management, protection of assets and operational performance. By virtue of their positions generally, and these duties specifically, directors and officers of NPOs can find themselves exposed to potential litigation in a number of arenas. The bottom line is that NPOs are not immune to the heightened litigation landscape and are now actually a target. Beyond Employment Claims: Here Come The Regulators To date, claims brought by the U.S. Equal Employment Opportunity Commission or by employees alleging discrimination, wrongful termination or sexual harassment represent the greatest proportion of claims filed against NPOs and their directors and officers. While it is expected that employment claims will continue to be the highest frequency type of claim, there are also a number of new exposures that NPOs are facing due in part to the growth and success of the sector, globalization, interconnectiveness and the financial crisis. Among other things, globalization means that NPOs need to be diligent about grants made at the behest of foreign government officials, even for charitable purposes. If an NPO does not do its diligence, it runs the risk of violating the Foreign Corrupt Practices Act (FCPA). (continued next page) 58 December 2011 ADVISEN.COM

3 Advisen Management Liabilityj Quick Facts The National Center for Charitable Statistics, a national clearinghouse of data on the nonprofit sector in the United States, reports that as of August 2011, there were 1,574,674 tax-exempt organizations, including: 959,698 public charities 100,337 private foundations 514,639 others, including chambers of commerce, fraternal organizations and civic leagues. The FCPA contains anti-bribery prohibitions and requires thorough diligence and accurate book-keeping and internal controls. The Department of Justice (DOJ) has the power to allege violations of the FCPA that may target NPOs and their directors and officers. Defense costs and civil and criminal fines and penalties involving an allegation of an FCPA violation can be costly and burdensome to defend with potentially substantial personal liability ascribed to the individual directors and officers and could threaten the long-term viability of an NPO. Attempting to steer clear from such problems, a U.S.-based microfinance institution (MFI) sought the DOJ s opinion on whether a grant it was compelled to make by a foreign regulator would raise red flags under FCPA. The U.S. MFI, which provides loans and other basic financial services to the world s lowest-income entrepreneurs, was in the process of converting all of its local operations to commercial entities that are licensed as financial institutions. The conversion would permit subsidiaries to attract capital and expand services to include offerings such as savings accounts and microinsurance. The transition for one Eurasian subsidiary, however, was complicated by the requirement of a local regulating agency, which insisted that the local subsidiary make a grant to a local microfinance institution providing a list of potential recipients. The NPO undertook a lengthy three-step due-diligence process to vet the list. The due diligence was meant to not only identify a recipient that it felt to be appropriate for the NPO s stated mission, but also to drill down to identify any ties a potential recipient may have to government officials. In the end, on July 16, 2010, at the request of the U.S. MFI, the DOJ opined that the NPO conducted an appropriate amount of due diligence and structured the transaction in such a way to prevent FCPA violations. As a result, the DOJ does not presently intend to take any enforcement action with response to the NPO s request for review. However, it is important to note that a high level of due diligence should be performed in order to avoid potential violations. Bankruptcy Troubles There are also new risks that have been unearthed in tandem with the global financial crisis. For example, during 2011, the risk of litigation brought by a bankruptcy trustee seeking recoveries against an NPO and its directors and officers on behalf of (continued next page) 59 December 2011 ADVISEN.COM

4 creditors and other claimants has emerged. For instance, dozens of NPOs have been sued by the Madoff bankruptcy trustee, seeking millions of dollars in clawback investment return recoveries. The allegations against these NPOs include fraudulent transfer under the New York Debtor and Creditor Law and U.S. Bankruptcy Code. Talking Point! Advisen Consultant Bill Brown notes that risk management strategies for nonprofits should include careful attention to indemnification agreements and other protections for directors and officers. Broad indemnification agreements as well as bylaw and/or contractual provisions addressing limitations of liability are a first line of defense. In another example, a U.S. Bankruptcy Judge for the District of Arizona recently authorized a bankruptcy trustee for the NPO Yavapai County Farm & Agriculture Association, Inc. to employ special counsel to pursue errors and omissions claims based on a breach of fiduciary duty and negligence arising from the conduct of certain directors and officers of the NPO. According to local press reports, the trustee is accusing the board of failing to properly oversee day-to-day operations of debtor and failing to implement reasonable and necessary financial controls, among other things. Nonprofit Monopolies? NPOs must also be aware of the antitrust laws. Consider, for example, how social media fosters exchanges of ideas, even among competitors. When such informal communications stray into pricing, they can expose associations and their members to potential violations of the antitrust laws. Another specific area where nonprofits face risk of allegations of violating antitrust laws is when they are involved with authentication and registration. For example, The Andy Warhol Foundation for the Visual Arts, Inc. and its subsidiary the Andy Warhol Art Authentication Board, Inc. and its directors and officers were sued by owners of what were works of art by Andy Warhol in a class action for alleged violations of the federal Sherman Antitrust Act, New York s Donnelly Act and section 43(a) of the Lanham Act, which generally prohibit restraint of trade and monopolies. (Joe Simon-Whelan v. The Andy Warhol Foundation for the Visual Arts Inc., 07-cv-06423, U.S. District Court, Southern District Manhattan) The suit alleged that in order to increase the rarity and value of Warhol works, the defendants conspired to limit the number of approved Warhols. While the complaint was ultimately dismissed per stipulation, nearly $7 million in defense expenses were incurred. The foundation is in litigation with its D&O insurer for coverage as defense costs may be excluded due to policy coverage restrictions, such as a professional services exclusion. (continued next page) 60 December 2011 ADVISEN.COM

5 On October 19, 2011, The Andy Warhol Foundation for the Visual Arts, Inc. announced that, after 16 years, the Andy Warhol Art Authentication Board, Inc. would be dissolved in early Bad Press And Donor Actions Another example of a mass action (however, with a different type of claimant), was brought by an NPO s life blood its donors. This public relations nightmare scenario involved a class action lawsuit that was filed in federal court on May 11, 2011, against the Central Asia Institute and its executive director and board member after an April 2011 investigation that aired on the television program, 60 Minutes. The broadcast raised questions about the veracity of claims that the Institute used millions of donation dollars to set up more than 140 schools in Pakistan and Afghanistan, as well as concerns about the financial arrangement between the Institute and its executive director. The lawsuit was filed on behalf of donors, alleging fraud and misrepresentation in soliciting donations to the Central Asia Institute. Christopher Duca is President and Chief Executive Officer of Navigators Management Company, a provider of management liability insurance to nonprofit organizations and publicly traded and privately held corporations located worldwide. He may be reached at navg.com or visit Navigators management liability information page at Managing The Risks Whether or not the claims described in this article are covered under a directors and officers liability policy will depend upon the specific facts of the case and the terms and conditions of the D&O liability policy. What is known is that these emerging risks broaden claims to include severity exposures to new frontiers of litigation beyond the historical garden-variety employment practices claims. Boards of directors and officers of NPOs need to be aware of the heightened exposure of serving on a board even as an uncompensated volunteer. A D&O insurance policy is intended to be the last line of defense for an NPO and its board. Loss control, risk management and good corporate governance need to be a priority for the NPO. Directors and officers should consult with their insurance broker and outside counsel to implement robust risk management practices and to review their D&O liability policy to manuscript wordings to meet their unique emerging needs and exposures for coverage. 61 December 2011 ADVISEN.COM

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