Opinion
No. S14Q0623.
2014-09-22
FEDERAL DEPOSIT INSURANCE CORPORATION v. SKOW et al.
Jeanne Simkins Hollis, Steven Paul Smith, Atlanta, Colleen J. Boles, Kathryn Norcross, Minodora D. Vancea, James S. Watson, Chris D. Kiesel, Kyle M. Keegan, Keegan, Denicola, Kiesel, Bagwell, Juban & Lowe, LLC, Baton Rouge, Charles B. Lee, Miller & Martin PLLC, Chattanooga, for appellant.Robert Riles Ambler Jr., John Gregory Perry, James E. Connelly, Jennifer Saffold Collins, Womble, Carlyle, Sandridge & Rice, PLLC, David Balser, Merritt Ellen McAlister, Ellen Claire Carothers, Jeffrey S. Bucholtz, David M. Barnes, King & Spalding LLP, Tracy Lee Klingler, Jeffrey Ronald Baxter, James Barton Manley Jr., Jill Cox Kuhn, McKenna, Long & Aldridge LLP, Aaron Mitchell Danzig, Edward Alexander Marshall, Richard Andrew Mitchell, Arnall, Golden & Gregory, Atlanta, R. Randy Edwards, Paul Anthony Piland, Cochran & Edwards, LLC, Smyrna, Stanley Harold Pollock, Garner Couch & Ezell LLP, Atlanta, Kirk DeBardeleben Smith, Haskell Slaughter Young & Rediker LLC, Frank M. Young III, Birmingham, for appellees.
Certified questions answered.
Jeanne Simkins Hollis, Steven Paul Smith, Atlanta, Colleen J. Boles, Kathryn Norcross, Minodora D. Vancea, James S. Watson, Chris D. Kiesel, Kyle M. Keegan, Keegan, Denicola, Kiesel, Bagwell, Juban & Lowe, LLC, Baton Rouge, Charles B. Lee, Miller & Martin PLLC, Chattanooga, for appellant. Robert Riles Ambler Jr., John Gregory Perry, James E. Connelly, Jennifer Saffold Collins, Womble, Carlyle, Sandridge & Rice, PLLC, David Balser, Merritt Ellen McAlister, Ellen Claire Carothers, Jeffrey S. Bucholtz, David M. Barnes, King & Spalding LLP, Tracy Lee Klingler, Jeffrey Ronald Baxter, James Barton Manley Jr., Jill Cox Kuhn, McKenna, Long & Aldridge LLP, Aaron Mitchell Danzig, Edward Alexander Marshall, Richard Andrew Mitchell, Arnall, Golden & Gregory, Atlanta, R. Randy Edwards, Paul Anthony Piland, Cochran & Edwards, LLC, Smyrna, Stanley Harold Pollock, Garner Couch & Ezell LLP, Atlanta, Kirk DeBardeleben Smith, Haskell Slaughter Young & Rediker LLC, Frank M. Young III, Birmingham, for appellees.
John Robert Bielema Jr., Michael Peter Carey, Bryan Cave, William Wright Banks, Jr., Senior Asst. Atty. Gen., Atlanta, Joseph J. Reilly, Katherine B. Katz, BuckleySandler LLP, Washington, LLP, Stephanie Burnham, Asst. Atty. Gen., amici curiae.
HUNSTEIN, Justice.
In this civil action involving alleged negligence and breach of fiduciary duty on the part of former officers and directors of a now-defunct state-chartered Georgia bank, the Eleventh Circuit Court of Appeals has certified the following questions for resolution by this Court:
(1) Does a bank director or officer violate the standard of care established by OCGA § 7–1–490 when he acts in good faith but fails to act with “ordinary diligence,” as that term is defined in OCGA § 51–1–2?
(2) In a case like this one, applying Georgia's business judgment rule, can the bank officer or director defendants be held individually liable if they, in fact as alleged, are shown to have been ordinarily negligent or to have breached a fiduciary duty, based on ordinary negligence in performing professional duties?
In a similar case presenting questions certified by a federal district court, this Court has recently considered the interplay between the Georgia Banking Code's provisions prescribing the responsibility of bank directors and officers, OCGA § 7–1–490, and Georgia's common law business judgment rule. Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 761 S.E.2d 332 (2014). Our opinion in Loudermilk is dispositive of the questions presented here, which we answer as follows.
(1) A bank director or officer may violate the standard of care established by OCGA § 7–1–490, even where he acts in good faith, where, with respect to the process by which he makes decisions, he fails to exercise the diligence, care, and skill of “ordinarily prudent men [acting] under similar circumstances in like positions.” OCGA § 7–1–490; Loudermilk, 295 Ga. at 591, 761 S.E.2d 332. As we noted in Loudermilk, “process” in this context refers to the mode by which one deliberates and ascertains the facts relevant to the decision at hand. Id. at 584–86, 591–92, 761 S.E.2d 332. As we also recognized, the level of diligence required is only that “as would be exercised by ‘ordinarily prudent’ officers and directors of a similarly situated bank.” Id. at 595, 761 S.E.2d 332.
(2) In a case like this one, the bank officer or director defendants may be held individually liable if they are shown to have violated the standard of care established by OCGA § 7–1–490, as construed in Loudermilk, supra.
Certified questions answered.