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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Corporate Law

Date & Time
  • event Date

    Tuesday, December 12, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will address recent trends in the law pointing toward increased exposure for corporate officers and directors. D&Os are finding themselves increasingly in the crosshairs of government enforcement investigations as well as litigation brought by shareholders, customers, and business partners.

Faculty

Steven M. Cady
Partner
Williams & Connolly LLP

Mr. Cady focuses on civil and criminal trials, principally in matters relating to financial services, health care, technology, government investigations, and national security. He has tried numerous cases and has filed and litigated lawsuits throughout the country.  In recent years, Mr. Cady has tried a month-long civil jury trial defending a national bank, has served as lead outside counsel for companies and non-profit organizations, has led the defense against class actions involving hundreds of millions of dollars, and has led the prosecution of multi-million dollar lawsuits on behalf of people and companies that have been wronged. 

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Ryan T. Scarborough
Partner
Williams & Connolly LLP

Mr. Scarborough defends financial institutions, law firms, corporations, and their directors and officers against threatened or actual litigation from government regulators, consumers, shareholders, and competitors. He has litigated against the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Federal Housing Finance Agency, and other financial regulatory agencies. He has been recognized by The Legal 500 for his work in handling Financial Services litigation, advising financial institutions and high-ranking executives across a range of litigation and enforcement actions.

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Daniel I. Wolf
Partner
Gilbert, LLP

Mr. Wolf focuses his practice on resolving complex insurance coverage issues for policyholders.  Leveraging over a decade of experience litigating and negotiating with insurers, he works closely with clients to develop and implement strategies to maximize their insurance recoveries.  He also counsels clients on risk management and insurance procurement issues.  His practice is particularly focused on D&O insurance–where he draws on his prior experience litigating securities fraud and derivative lawsuits at a New York firm–as well as other financial lines of coverage (including E&O, fiduciary, EPL, cyber, and transactional risk insurance), topics on which he writes and speaks regularly.

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Description

D&Os owe statutory and common law duties to shareholders, including fiduciary duties of care and loyalty. As long as they take reasonable steps to inform themselves and discharge their duties, D&Os are supposed to be protected by the business judgment rule. But this protection is not absolute, and even allegations of violations or breaches of fiduciary duties can lead to an expensive, time-consuming lawsuit with potentially devastating personal liability for directors, officers, and LLC managers.

Listen as our panel of experienced litigators discusses lessons learned from recent actions by federal and state regulators to hold individual D&Os liable for corporate misconduct. In addition, the panel will address recent cases where courts have made it easier to sue directors or officers in their individual capacities. The panel will provide practical guidance on how to mitigate personal liability and fund the defense of individuals without waiving the privilege by utilizing indemnification provisions and D&O insurance.

Outline

  1. Director and officer liability
    • Fiduciary duties
    • Business judgment rule: statute/common law
      • Limitations at the MTD stage
    • Exposures
      • Damages
      • Disgorgement
      • Penalties
  2. Recent efforts to impose liability on individual D&Os
    • Government enforcement actions
      • DOJ
      • SEC
      • Other regulators
    • Individual shareholder actions
      • Direct shareholder actions
      • Derivative shareholder actions
  3. Mitigating personal liability
    • Indemnification
      • Limitations
      • Discretionary nature of advancement
    • D&O insurance
      • Understanding Side A and Side B coverage
      • What constitutes a "claim" and when to provide notice
      • Key exclusions: regulatory exclusion; insured-versus-insured exclusion; conduct exclusion
  4. Best practices
    • Indemnification
    • D&O insurance
    • Mitigating risk of privilege waivers in communications with insurers

Benefits

The panel will address these and other key issues:

  • Primer on the basics of D&O liability
  • The trend for individual D&O exposure in government enforcement actions
  • How D&Os can mitigate risk, including when a state allows shareholders to file direct claims of personal liability
  • Exceptions and exclusions that D&Os should be aware of in D&O insurance policies