It
may
have
taken
40
years,
but
federal
courts
are
finally
pushing
back
on
the
legal
theory
that
the
CEOs
of
major
corporations
are
simply
too
important
to
testify.
Back
in
1985,
the
apex
doctrine
was
codified.
In
a
personal
injury
has
against
Chrysler,
top
exec
Lee
Iacocca
was
shielded
from
having
to
sit
for
a
deposition
because
he
was
a
“singularly
unique
and
important”
individual.
Since
then,
C-suite
individuals
like
Elon
Musk
and
Mark
Zuckerberg
have
invoked
the
doctrine
to
avoid
testifying
in
various
litigation.
However,
the
tides
are
changing.
As
federal
Judge
Iain
D.
Johnston
told
Bloomberg
Law,
“Single
moms,
single
dads,
who’ve
got
part
time
jobs,
are
taking
classes,
are
taking
kids
to
daycare—is
their
time
less
valuable
than
the
CEO
of
a
major
corporation
sitting
in
a
meeting?
There
should
be
a
healthy
skepticism
of
people’s
self-importance.”
Biglaw
partners
are
seeing
that
shift
happening
in
real
time.
David
Fertig,
a
partner
at
BakerHostetler
who’s
litigated
both
sides
of
the
apex
doctrine,
said
the
question
in
litigation
is
shifting
to
whether
the
apex
witness
has
unique
information
relevant
to
a
case,
rather
than
if
the
CEO
is
too
busy
or
otherwise
important
to
be
deposed.
In
some
instances,
legal
fights
ensue
over
limiting
the
scope
and
length
of
the
deposition,
rather
than
whether
the
deposition
can
happen,
Fertig
said.“There’s
increasing
concern
and
public
outcry
for
people
of
significant
wealth
and
power
to
answer
for
corporate
conduct,”
Fertig
said.
“Courts
have
therefore
shown
some
reluctance
to
the
idea
that
merely
by
virtue
of
their
status
as
senior
executives,
apex
witnesses
are
immune
from
deposition.”
And
Duane
Morris
partner
Gerald
Maatman
Jr.
said,
“There’s
no
free
pass
anymore.
There’s
no
presumption
that
just
because
you’re
the
CEO,
you
get
to
avoid
depositions.”
When
trying
again
to
invoke
the
doctrine
earlier
this
year,
Zuckerberg
wasn’t
as
successful
as
he
was
in
the
past.
And
he’s
not
the
only
CEO
ordered
to
be
deposed
this
year.
The
tech
titan’s
change
in
fortune
reflects
a
backlash
against
the
apex
doctrine
by
judges
swayed
by
populist
arguments
that
it
unfairly
favors
the
powerful.
McDonald’s
Corp.
CEO
Christopher
Kempczinski,
Microsoft
Corp.
CEO
Satya
Nadella,
activist
investor
Carson
Block,
Madison
Square
Garden
chief
James
Dolan,
and
now
Zuckerberg
all
lost
bids
in
the
past
year
to
duck
depositions
under
the
apex
doctrine
in
federal
courts.
It
may
not
be
as
radical
as
plaintiffs
attorneys
might
like
—
Robbins
Geller
attorney
Jason
Forge
said
“the
entire
concept
is
a
disgrace”
—
but
there’s
still
been
significant
progress
pushing
against
the
notion
that
corporate
executives
are
(sigh)
above
the
law.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of
The
Jabot
podcast,
and
co-host
of
Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email
her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter
@Kathryn1 or
Mastodon
@[email protected].