It is one thing for a PE sponsor to be aware of the conflicts of interest and competing fiduciary duties that can arise when it appoints an employee to the board of directors of a portfolio company. Oft-overlooked, however, are the myriad scenarios that can trigger those types of risks, almost conjuring them out of thin air. If a sponsor can wrap its proverbial arms around the contexts presenting the greatest risks, then it can take steps to avoid or mitigate those risks before its board-appointed employee is put in a difficult – and potentially litigation-inducing – position. This final article in a three-part series describes certain common scenarios in which a privately owned portfolio company can create conflicts for sponsor-appointed board directors, including the presence of minority shareholders or transition periods in ownership. The first article
examined the risk of litigation, breaches of fiduciary duties and a failure to protect confidential information, and the second article
discussed board construction methods and policies that may mitigate some of the aforementioned risks. See our two-part series on avoiding parallel fund conflicts: “New SBAI Standards and Case Study Provide Guidance for Mitigating Conflicts
” (May 5, 2020); and “Specific PE, Real Estate and Private Credit Issues and Mitigation Tips
” (May 12, 2020).