Violations of the Law

Sometimes in the popular press or in the media (movies, television, etc) you will see discussions about how directors of the corporation might have a fiduciary obligation to pursue corporate profits even if to do so requires the corporation to adopt a policy of violating the law.  Nothing can be further from the truth.  Delaware courts, as well as other state courts, have repeatedly and unequivocally ruled that directors who adopt corporate policies to violate the law are not acting in the best interests of the corporation and are therefore disloyal directors.  

Given that certificates of incorporation limit the purpose of the corporation for "any lawful purpose for which a corporation may be organized." If a corporate board pursues as a corporate policy activities which are illegal or contrary to a positive law, then such acts are also ultra vires, or outside the scope of permitted activities for corporate activity.

In addition, directors are not exculpated from financial liability under §102(b)(7) for "acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law."  Consequently, a director who intentionally causes the firm to violate the law has violated their duty of good faith (i.e. loyalty) to the corporation and may be subject to financial liability.