Recent Posts

Failed Bank Battles: Is D&O Insurance Coverage the Real Frontline?
Posted on 13 Sep 2011 by Kevin M. LaCroix

A recent negotiated resolution of an FDIC failed bank lawsuit suggests disputes over D&O insurance coverage may represent the real frontline in the failed bank litigation wars. The compromise was reached in the lawsuit the FDIC only recently filed... Read More

Georgia Federal Court Rules FIRREA Blocks Jurisdiction for Failed Bank’s D&O Insurer’s Declaratory Judgment Action
Posted on 12 Mar 2014 by Kevin M. LaCroix

As part of our beat here at The D&O Diary , we have to read a lot of judicial decisions. We are well acquainted with the fact that court rulings vary quite a bit, but every now and then we read an opinion that makes us stop and say – “... Read More

D&O Insurance: Insured vs. Insured Exclusion Applicability to FDIC Failed Bank Claim Held Ambiguous
Posted on 13 Oct 2014 by Kevin M. LaCroix

As I have previously noted on this blog, one of the recurring D&O insurance coverage issues arising during the latest bank failure wave has been the question whether the Insured vs. Insured Exclusion precludes coverage for claims brought by the FDIC... Read More

When the Business Judgment Rule Isn't Available to Protect Directors
Posted on 16 Jul 2013 by Kevin M. LaCroix

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... Read More

Should Bank Directors’ Fiduciary Duties Be Expanded?
Posted on 14 Aug 2014 by Kevin M. LaCroix

A recurring question is whether bank directors should be held to a more stringent fiduciary duty than are the directors of other kinds of companies. The question has been raised in the current wave of failed bank litigation, as the FDIC has tried to argue... 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

D&O Insurance: Eleventh Circuit Holds Insured v. Insured Exclusion’s Applicability to FDIC Failed Bank Claims Ambiguous
Posted on 18 Dec 2014 by Kevin M. LaCroix

Going all the way back to the S&L crisis, a recurring insurance coverage issue that has arisen in the failed bank context has been the question of whether or not coverage for a claim brought by the FDIC in its capacity as receiver of a failed bank... Read More

What to Watch Now in the World of D&O
Posted on 7 Sep 2011 by Kevin M. LaCroix

Every fall since I first started writing this blog, I have assembled a list of the current hot topics in the world of directors' and officers' liability. This year's list is set out below. As should be obvious, there is a lot going on right... Read More

"No Judge Has Ever Said 'Boy, Can That Guy Turn a Phrase'"
Posted on 3 Feb 2012 by Kevin M. LaCroix

Recent sharply-worded accusations that the FDIC had failed to preserve documents attracted quite a bit of media attention. For example, a January 27, 2012 Wall Street Journal article reported the charges of counsel for two former IndyMac bank executives... Read More

Failed NC Bank Execs Granted Summary Judgment on All FDIC Claims
Posted on 16 Sep 2014 by Kevin M. LaCroix

On September 11, 2014, in a sharply worded order that will give heart to the FDIC’s many other failed bank litigation targets, Eastern District of North Carolina Judge Terrence Boyle, applying North Carolina law, granted the summary judgment motion... Read More

Fourth Circuit Affirms Dismissal of All Claims Against Failed Bank’s Directors, Revives Negligence Claims Against Bank’s Officers
Posted on 20 Aug 2015 by Kevin M. LaCroix

On August 18, 2015, in an interesting opinion that takes a close look at exculpatory bylaw issues and the business judgment rule under North Carolina law, the Fourth Circuit affirmed in part and reversed in part the district court’s dismissal of... Read More

Meanwhile, Back at the FDIC Failed Bank Litigation Ranch
Posted on 29 Jul 2015 by Kevin M. LaCroix

As the global financial crisis has receded further into the past and as other issues have crowded to the top of the agenda, the remaining vestiges from the credit crisis have faded into the background. But though the peak of the crisis is now nearly seven... Read More

D&O Insurance: FDIC’s Claims Against Failed Bank’s Directors and Officers Not Related to Earlier Claims, Trigger Separate Policy Period
Posted on 11 Jul 2014 by Kevin M. LaCroix

On July 9, 2014, in yet another in the ever growing line of cases examining whether or not separate D&O claims involve interrelated wrongful acts, District of Puerto Rico Judge Gustavo Gelpi , applying Puerto Rico law, held that the FDIC’s claims... Read More

D&O Policy Excluding “Receiver” Claims Bars Coverage for FDIC Failed Bank Lawsuit
Posted on 22 Apr 2014 by Kevin M. LaCroix

In an interesting April 7, 2014 opinion ( here ), Magistrate Judge Stanley A. Boone of the Eastern District of California, applying California law, held that a D&O insurance policy’s insured vs. insured exclusion precludes coverage for claims... Read More