Your go-to-market vendor decisions are now a personal legal risk

In 2023 and 2024, Delaware fundamentally changed the rules on fiduciary duty. The threshold for breach was lowered to negligent oversight, and the duty itself was extended far beyond the board and CEO — to all corporate officers, with individual liability for breach.

For CMOs, that means personal accountability for GTM vendor decisions. Traditional consulting relationships that can’t actively mitigate risk or prove causal impact now create a level of negligence exposure that could end careers.

Approving a consulting engagement without risk mitigation systems isn’t just a budget risk — it’s a personal legal risk under Delaware law.

Why marketing leaders are especially vulnerable

CMOs face unique exposure because:

• GTM spend is material to company performance (often 20%-40% of budgets), making it squarely within fiduciary oversight requirements. 
• Attribution has been historically weak in marketing, making it harder to demonstrate adequate oversight of vendor performance.
• Vendor recommendations directly influence major operational decisions about messaging, positioning, channel strategy and resource allocation.
• Traditional marketing consultants explicitly disclaim responsibility for business outcomes while charging premium rates for strategic advice.

If you’re a company that spends $12 billion on its go-to-market efforts, without any ability to test, calibrate and mitigate GTM risks, you’re a prime target for a derivative shareholder suit with a high likelihood of success. 

The reason is this: Wasted spending materially deflates EPS, and your failure to redeploy that spending to successful investments materially limits the positive EPS impact the company could have created.

Dig deeper: AI is transforming GTM teams into fiduciary powerhouses

The fiduciary partnership solution

In January 2023, the Delaware Chancery Court advanced a pivotal argument in the McDonald’s Corp. case. The court held that modern business is so complex that the board and CEO alone can no longer deliver adequate fiduciary oversight. That responsibility now requires the active involvement of all corporate officers — those closest to operational reality. To enforce this shift, the court extended the fiduciary duty of oversight to all corporate officers, including personal liability for breach.

By extension, this means the employees within an officer’s organization must also comply with this doctrine, even if they don’t carry individual liability. Vendors must also align with this standard.

This transforms the vendor relationship into a legally accountable partnership, bound by contract to uphold fiduciary obligations. It brings GTM partners into the same category of professional responsibility already expected of lawyers, many investment advisors and others with legal duties to their clients. While vendors aren’t fiduciaries by statute, requiring fiduciary-level commitment through contracts is something every legal and procurement department should now insist on.

What every CMO must require from vendors now

To protect themselves in the new fiduciary environment, CMOs must hold vendors to higher standards. At minimum, demand the following.

• Causal validation of methodologies before engagement begins. Just as you wouldn’t run advertising campaigns without A/B testing, you can’t approve consulting strategies and campaign investments without credible causal evidence they are likely to work in your market context.
• Support for causal systems that isolate a vendor’s impact from the impact of other vendors, market conditions, seasonal effects and other external variables, all while displaying their synergistic performance.
• Performance-linked compensation that adjusts based on a mixture of fees, short-term compensation based on KPI attainment and longer-term compensation based on causal contribution to different specified areas of business performance.
• Perpetual accountability through continuous causal evaluation systems that maintain vendor engagement through full implementation cycles rather than ending at project delivery.
• Mutual compliance measurement that tracks both vendor and client execution quality, creating mutually self-governing relationships where compensation adjusts based on contextual performance rather than subjective personal assessments.

The new vendor evaluation process

Traditional vetting isn’t enough. CMOs now need a vendor evaluation process that aligns with fiduciary duty and legal accountability. Start here.

Threshold question: 

• Will this vendor assume fiduciary responsibility under Delaware law?

If they decline, they’re a career risk. If they accept, evaluate their accountability systems:

• What evidence can they provide that their frameworks have been causally validated?
• How do they measure and attribute their specific contribution to business outcomes?
• What compensation structure ensures they remain accountable for sustained results?
• Do they carry professional insurance that covers fiduciary breaches?
• Do they provide mutual accountability systems that measure client compliance alongside vendor performance, eliminating blame assignment disputes?

Dig deeper: 5 signs your GTM is too risky and what to do about it

Turning legal compliance into strategic advantage

Early adopters of fiduciary vendor relationships gain significant advantages:

• Career protection through demonstrable oversight systems that satisfy Delaware fiduciary requirements.
• Board credibility by implementing measurable accountability for major operational investments.
• Budget efficiency through performance-based compensation that pays vendors for actual value delivery rather than time and materials.
• Strategic agility through continuous optimization systems that adapt to changing market conditions rather than rigid project implementations.
• Objective performance measurement through mutual accountability frameworks that eliminate the traditional consultant excuse of “client didn’t execute properly” while protecting you from vendor underperformance claims.

How to operationalize fiduciary vendor standards

Accountability doesn’t happen overnight. Use this rollout plan to embed fiduciary compliance into your GTM partnerships over time:

• Phase 1 (Immediate): Add fiduciary commitment requirements to all new vendor RFPs and contract negotiations.
• Phase 2 (6 months): Implement causal validation requirements for existing vendor relationships at renewal.
• Phase 3 (12 months): Establish perpetual evaluation systems that adjust vendor compensation based on sustained performance metrics.

What the GTM vendor market looks like post-ruling

This shift isn’t just changing internal policies — it’s reshaping the vendor landscape. The implications are significant:

• Premium positioning: Vendors who can assume fiduciary responsibility will command higher rates while providing greater accountability.
• Market bifurcation: Traditional consultants who won’t accept legal responsibility become commodity service providers, not strategic partners.
• Insurance evolution: E&O insurance coverage is already evolving to cover fiduciary-style risk in complex advisory roles. Many GTM vendors already carry professional liability coverage to backstop their commitments — just like attorneys, accountants and RIAs (registered investment advisors) do, extensible to cover fiduciary duty coverage.

Dig deeper: Why assumption-based GTM strategy is facing a powerful reckoning

Protecting yourself from fiduciary fallout

In a post-McDonald’s world, no CMO can afford to work with vendors who refuse to stand behind their advice with actual skin in the game. That includes contractual accountability and professional liability insurance that covers advisory and performance risk. If your vendor can’t show you a comprehensive liability policy, they’re not ready for the fiduciary era. 

The strategic imperative? Build your GTM vendor portfolio around legally accountable partners who stake their professional liability on your success. Traditional consulting relationships without fiduciary commitment have become unacceptable career risks.

Your next vendor selection decision isn’t just about marketing performance — it’s about protecting your company and yourself in a dramatically different fiduciary landscape.