On December 13, 2011, the US District Court for the Central District of California held in FDIC v. Perry that officers are not protected by the business judgment rule in California. This issue was raised by the defendant, Matthew Perry, in his motion to dismiss claims brought by the FDIC, as receiver for Indymac Bank.

The FDIC claimed that Perry, as the CEO of Indymac, breached his duties to Indymac and acted negligently in allowing Indymac to generate and purchase risky residential loans for sale in the secondary market. The FDIC alleged that these actions were beyond what a reasonable banker would have done and that Perry's actions resulted in losses in excess of $600 million to Indymac.

Perry moved to dismiss these claims by arguing that the FDIC failed to allege facts that would overcome the business judgment rule. Perry argued that the business judgment rule should apply to him because it was meant to protect both officers and directors from judicial second guessing of business decisions made on behalf of a corporation. The District Court, however, disagreed and denied Perry's motion.

In reaching its decision, the District Court relied on several factors, including:

While the District Court's decision only applies to California, it highlights the question of whether officers should receive the same protections as directors under the business judgment rule. Although some jurisdictions have specifically addressed this issue (and in many cases have found the business judgment rule to apply to officers as well), there are still some jurisdictions in which this issue has not been clearly settled.