Duty of Loyalty

Duty of loyalty is a director's responsibility to act at all times in the best interests of their company. The duty of loyalty is one of the two primary fiduciary duties required to be discharged by a company's directors, the other being the duty of care. The duty of loyalty requires a director to be completely loyal to the company at all times. It also imposes the responsibility to avoid possible conflicts of interest, thereby precluding a director from self-dealing or taking advantage of a corporate opportunity for personal gain. Violation of the duty of loyalty may expose the director to a court order to pay restitution and stiff fines.

The duty of loyalty imposes a number of additional responsibilities upon directors of a company. They are required to keep confidential, and not disclose or use, any information that they come across in their official capacity as directors. They also have to report all conflicts of interest, whether actual or potential, real or perceived, to the Board of Directors, and obtain legal advice in cases where it is unclear whether or not a conflict exists. In cases where a conflict does exist, the director should be fully transparent about it and disclose all relevant information.

A director's duty of loyalty has three main components:

1. They must not usurp corporate opportunities for their own personal gain.
2. They must avoid having a personal interest in transactions between the corporation and another party.
3. They must keep the corporation's information private.

While these may seem like onerous requirements, a director who is completely loyal to the company will have no problem in adhering to the duty of loyalty. But problems will arise when directors place their own interests above those of the company, or have an undisclosed conflict of interest.

Assume the director of a pharmaceutical company learns in advance that one of its most promising drug candidates has failed to meet the primary endpoints of a pivotal Phase 3 trial. The press release about this negative development is scheduled to be released after market close the next day. The director immediately places an order to sell his substantial share holdings at the current market price, as the stock price is bound to slump when the news is released. By doing so, the director has used confidential information for his own enrichment, opening himself up to insider trading charges and violating the duty of loyalty.