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Practice paper

Legal considerations when advising on business continuity

Erika Andresen
Journal of Business Continuity & Emergency Planning, 17 (2), 130-139 (2023)
https://doi.org/10.69554/DYJK4581

Abstract

With the rise of climatic concerns and cybersecurity incidents comes the expectation that investments are made in business continuity measures. This expectation has legal teeth from the perspective of shareholders as well as regulatory bodies, contracting attorneys, vendors and supply chain entities. This paper explores the use of US legal system as a tool for enforcing liability and action from decision makers like the board of directors and C-suite officers, as well as between the parties of contracts. Shareholder derivative lawsuits, which occur predominately in the USA but have, as recently as 2020, started to include foreign-owned businesses, and breach of contract claims are two of the more prominent issues with business continuity tie-ins. This paper intends to arm the business continuity professional with a knowledge base about legal liability for failure to have a business continuity plan, an understanding of how disasters and disruptions will excuse the full performance of a contract and an ability to determine proper courses of action with respect to supply allocation after an incident.

Keywords: business continuity; shareholder derivative; force majeure; fiduciary duty; breach of contract; board of directors; cyber security; preparedness; supply allocation

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Author's Biography

Erika Andresen is a recovering lawyer, who has spent nearly two decades in both the corporate finance world and the military. Erika became a subject matter expert on national security and disaster preparedness/response while advising different commands and during high-risk situations in Afghanistan. Her work with actual disasters led her to attain a Master of Public Affairs (MPA). Erika left active duty in 2020 and has since started EaaS Consulting, LLC, with the goal of keeping businesses in business. To that end, she authored How to Not Kill Your Business: Grow Your Business in Any Environment, Navigate Volatility, and Successfully Recover When Things Go Wrong. Erika is also a professor of emergency management for the MPA programme at the University of Texas at El Paso.

Citation

Andresen, Erika (2023, December 1). Legal considerations when advising on business continuity. In the Journal of Business Continuity & Emergency Planning, Volume 17, Issue 2. https://doi.org/10.69554/DYJK4581.

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cover image, Journal of Business Continuity & Emergency Planning
Journal of Business Continuity & Emergency Planning
Volume 17 / Issue 2
© Henry Stewart
Publications LLP

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