Recent Posts

D&O Insurance: Liberalization Endorsement Allows Insureds to Rely on New Policy Form’s Enhanced Insured vs. Insured Exclusion Carve-Back
Posted on 30 Jun 2014 by Kevin M. LaCroix

On June 19, 2014, in a case involving so many unusual coverage issues that it seems more like a law school exam question than an actual coverage dispute, New York (New York County) Supreme Court Judge Melvin Schweitzer, applying New York law, granted... Read More

Survey: Existing and Potential Bank Directors Unwilling to Serve Due to Fear of Personal Liability
Posted on 30 Apr 2014 by Kevin M. LaCroix

Banking industry commentators have long contended that aggressive efforts by the FDIC and others to hold bank developers liable is having a chilling effect on the willingness of existing and potential directors to serve on bank boards. An April 2014 American... Read More

Liability Exposures of Audit Committee Chairs
Posted on 18 Apr 2014 by Kevin M. LaCroix

One frequently asked question is whether members of a corporate board’s audit committee face heightened liability exposures. Two recent SEC enforcement actions seem to underscore that audit committee chairs do face liability exposures. Though both... Read More

Corporate Employment Practices and D&O Liability Exposure
Posted on 13 May 2014 by Kevin M. LaCroix

I am sure most readers were as fascinated as I was by the allegations in the high profile case involving alleged hiring practices among some of the most prominent companies in Silicon Valley. The lawsuit asserted that the companies – including,... Read More

The Short-Termism Debate: Are There D&O Liability Issues Involved, Too?
Posted on 26 Aug 2015 by Kevin M. LaCroix

In recent months, commentators from across the political spectrum, largely in response to perceived excesses of activist investors, have called for changes to discourage “ short-termism ” – that is, the perceived excessive focus of businesses... Read More

Ninth Circuit: Embezzler Executive’s Knowledge Can Be Imputed to Company in Innocent Third Party-Filed Securities Suit
Posted on 28 Oct 2015 by Kevin M. LaCroix

For purposes of determining the scienter of a corporate entity defendant under the federal securities laws, a company’s executives’ knowledge generally is imputed to company. There is an exception to these general principles – the “... Read More

Taking Control of Cybersecurity: A Practical Guide for Officers and Directors
Posted on 7 Jul 2015 by Foley & Lardner LLP

Major cybersecurity attacks of increased sophistication — and calculated to maximize the reputational and financial damage caused to the corporate targets — are now commonplace. These attacks have catapulted cybersecurity to a top priority... Read More

Should There Be More Litigation Against Corporate Officers? (Uh, No.)
Posted on 17 Feb 2015 by Kevin M. LaCroix

Over the past fifteen years, there has been a steady progression of corporate scandals, from Enron to options backdating to the excesses that led to the global financial crisis. These debacles were followed by waves of shareholder litigation. However... Read More

Board Member Ouster For Catastrophic Incident?
Posted on 3 Jun 2014 by Dave Tate

Wouldn’t it be nice if you could be a board or board committee member without worry or concern? Well . . . you can’t unless you are oblivious to issues and risks, but of course you can and should endeavor to be proactive and ahead of the game;... Read More

Data Breach-Related Derivative Lawsuit Filed against Home Depot Directors and Officers
Posted on 10 Sep 2015 by Kevin M. LaCroix

In early 2014, when plaintiffs initiated data breach-related derivative lawsuits against the boards of Target Corp. ( here ) and Wyndham Worldwide ( here ), there was some speculation that these cases might be the first of what could become a wave of... Read More

The “Myth” of Outside Director Liability and the Critical Importance of D&O Insurance
Posted on 23 Oct 2015 by Doug Esten

In the world of corporate governance, there are a number of common presumptions about board structure and practices. However, according to a recent paper, many of these presumptions may in fact represent corporate governance “myths.” In their... Read More

Looted Art, Provenance, and D&O Claims
Posted on 19 May 2014 by Kevin M. LaCroix

The recent discovery in the Munich apartment of Cornelius Gurlitt of a massive trove of Nazi-looted art has drawn renewed attention to the fraught and murky world of art provenance – that is, the ownership history of art works, which can be critical... Read More

Tenth Circuit: D&O Insurance Policy’s Insured vs. Insured Exclusion Unambiguously Precludes Coverage for FDIC’s Failed Bank Claims
Posted on 11 Aug 2015 by Kevin M. LaCroix

In an important decision concerning D&O insurance coverage in connection with failed bank claims, the Tenth Circuit, applying Kansas law, held that a D&O policy’s insured vs. insured exclusion unambiguously precluded coverage for claims... Read More

Dismissal Granted in Cyber Breach-Related Derivative Suit Filed Against Wyndham Officials
Posted on 21 Oct 2014 by Kevin M. LaCroix

Along with the separate derivative lawsuit filed against Target Corporation’s board, the cyber breach-related derivative action filed against Wyndham Worldwide Corporation’s board has been closely watched as representative of a potential new... Read More

D&O Insurance: Later Securities Suit and Prior FDIC Failed Bank Claim Held Unrelated, Securities Suit Not Covered
Posted on 10 Jun 2014 by Kevin M. LaCroix

On May 8, 2014, Southern District of New York Judge Deborah Batts, applying New York law, held that a there was not a sufficient “factual nexus” between a securities suit filed after the expiration of a failed bank’s D&O insurance... Read More