Taking a Look at the Limits of Indemnification

Indemnification is the first and most important line of defense for the protection of directors and officers. But corporate officials are not always entitled to indemnification. For example, under Delaware law, they cannot claim mandatory indemnification if their defense is not successful. And they...

D&O Insurance: Protecting Directors and Officers Before, During and After Financial Reorganization

The process of restructuring financially distressed companies is complicated and fraught with challenges. Among the many potentially complicating challenges that can arise is the possibility of claims against the company's management. Because of the risks involved with these kinds of claims,...

The Impact of the JOBS Act on D&O Liability

On March 27, 2012, the U.S. House of Representatives passed the Jumpstart Our Business Startups Act (of the JOBS Act as it is more popularly known). President Obama is expected to sign the Act shortly. The Act is intended to facilitate capital-raising by reducing regulatory burdens. The Act also...

Can Separate Settlements Improve the Securities Suit Settlement Process?

The negotiated resolution of securities class action lawsuits - and absent dismissal, there is rarely any other types of securities suit resolution - is always complicated and occasionally messy, and often involves inefficiencies and sometimes produces distortions and even excesses. Anyone who has...

Fidelity Insurance and the Timing of the Employer's Responsibility for an Employee Defalcation

On August 1, 2011, in a 2-1 decision characterized by a testy but interesting exchange between the majority and the dissent, the Sixth Circuit held that a fidelity policy provided coverage for nearly one million dollars a bank employee stole from client brokerage accounts. For those who (like me) are...

Delaware Supreme Court: Insured's Payment of Defense Expenses Does Not Trigger Excess Insurer's Payment Obligations

On September 7, 2012, the Delaware Supreme Court, applying California law, held that Intel's excess insurer's defense obligations were not triggered where Intel had settled with the underlying insurer for less than policy limits and had itself funded the defense fees above the settlement amount...

D&O Insurance: When Can a D&O Insurer Recoup Amounts It Has Paid Out?

As Alison Frankel recently reported in her On the Case blog ( here ), the insider trading charges to which former Morgan Stanley hedge fund manager Joseph "Chip" Skowron pled guilty cost the company a lot of money. And, as demonstrated in the lawsuit the company recently filed against...

Motion to Dismiss Granted in Barclays LIBOR-Scandal Securities Suit

In a May 13, 2013 order ( here ), Southern District of New York Judge Shira Scheindlin granted defendants' motion to dismiss the LIBOR-scandal related securities suit that had been filed against Barclays and two of its former executives following the company's entry into a massive LIBOR-related...

More Thoughts About Corporate Officials' Defense Cost Advancement Rights

An important accessory to the indemnification rights of directors and officers is their right to have their defense expenses advanced while the claims against them are pending, before their ultimate right to indemnification has been determined. A frequently recurring issue is the question of when the...

When the Business Judgment Rule Isn't Available to Protect Directors

A recurring issue in the litigation the FDIC has filed against the directors and officers of failed banks is the question of whether or not officers – as opposed to directors – can rely on the business judgment rule as a defense under applicable state law. A July 8, 2013 decision by Judge...

Protection for Public Company Directors and Officers: Indemnification and Insurance

In an environment where public company directors and officers face increasing scrutiny and expanding liability exposures, the indemnification and insurance protections available to them are increasingly important. A July 15, 2013 memorandum from the Gibson Dunn law firm entitled “Director and Officer...

D&O Insurance: No Coverage for Attorney Fee Award to Underlying Plaintiffs if Underlying Claim Not Covered

Does a D&O insurance policy provide coverage for attorneys’ fees awarded in settlement of a breach of contract class action? That was the question before the court in an insurance coverage action brought by the Screen Actors Guild (SAG) against its D&O insurer. In a July 11, 2013 decision...

Outside Director Accountability

Outside corporate directors named as defendants in D&O litigation are rarely required to pay settlements or judgments out of their own personal assets, as prior research has shown. But the question of how frequently outside directors are held liable is a different question from the question of whether...

D&O Insurance: Because Policy Clauses Conflict, D&O Insurer Must Cover Interrelated Claims

My beat here at The D&O Diary requires me to read many insurance coverage decisions. I am well accustomed to the idea that the court opinions can be varied lot. But every now and then I run across a decision that is a real head-scratcher. A July 16, 2013 decision out of a Texas intermediate appellate...

When the D&O Insurer Denies Coverage

A D&O insurer’s denial of coverage for a claim against corporate officials can leave the individuals in a very difficult position, as illustrated by a recent high-profile case in the U.K. According to an August 4, 2013 Financial Times article entitled “Call to Reform Directors’...

Bankers' Professional Liability Insurance Does Not Cover Overdraft Fee Class Action Settlement

A recurring question under the management liability insurance protection that banks typically acquire is the extent of the protection afforded under their policies’ professional liability provisions. One particular question that often arises is whether the policy affords coverage for customers’...

Advisen Releases Private Company D&O Study

There is a great deal of information available about the liabilities of publicly traded companies, as well as about the D&O insurance implications arising from those liabilities. It can be a bit of a challenge to locate the same of information concerning private companies. For that reason, it is...

D&O Insurance: Insured vs. Insured Exclusion Unambiguously Precludes Coverage for FDIC Failed Bank Lawsuit

One of the recurring D&O insurance coverage issues that has arisen during the current wave of failed bank litigation has been the question whether coverage for an action by the FDIC in its role as receiver of a failed bank against a failed bank’s directors and officers is precluded by the Insured...

More About the D&O Insurance Implications of the SEC's New Admissions Wrongdoing Requirements

Numerous questions surround the SEC’s new policy requiring enforcement action defendants in “egregious” cases to admit to wrongdoing in order to settle with the agency, rather than simply agreeing to neither admit nor deny the agency’s allegations. As I discussed in a prior post...

More About D&O Insurance and Bankruptcy

Although D&O insurance represents an important risk management tool for every company, the protection that a D&O insurance policy affords directors and officers is particularly important in the bankruptcy context, when the company is no longer able to indemnify the individuals. Yet, as industry...

Top Ten D&O Stories of 2013

The world of directors and officers liability has long been characterized by rapid change. But even given these well-established dynamics, 2013 was a particularly eventful year, with several different developments that could impact the D&O arena for years to come. The list of the Top Ten D&O...

Even if Fraud on the Market is Dumped, Don’t Cut Back on D&O Insurance

It is hard to prognosticate the outcome of the Halliburton case now before the U.S. Supreme Court. But while we can’t be sure what the outcome will be, we can start to think about what will happen if the Supreme Court overturns Basic. In an interesting February 7, 2014 post on the Harvard Law School...

Health Care Reform and the Antitrust Laws: Big Concerns for Health Care Organizations and Their D&O Insurers

In a recent industry study concluding that health care organizations face increasing rates for management liability insurance, as well as tightening terms, one of the explanations suggested for these restrictive conditions is that the carriers are concerned that as health care organizations respond to...

More About D&O Insurance Coverage for Subpoena Response Costs

As I have previously noted on this blog, a recurring insurance coverage issue is whether or not the costs incurred in responding to a regulatory or enforcement subpoena represent covered defense under a D&O insurance policy. In an interesting March 27, 2014 memo entitled “D&O Coverage for...

First Circuit: D&O Insurer Must Advance Failed Bank Directors and Officers’ Defense Expenses

In an interesting March 31, 2014 opinion ( here ), the Unites States Court of Appeals for the First Circuit, applying Puerto Rico law, affirmed a district court’s ruling that the D&O insurer for the failed Westernbank of Mayaguez, Puerto Rico must advance the bank’s former directors’...