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D&O Indemnification, Fee Advancement, and Insurance: Individual Accountability for Corporate Misconduct

Leveraging Provisions in Corporate Bylaws, D&O Agreements, and Insurance Policies to Maximize Protection for Directors and Officers

This program is cancelled

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Thursday, May 23, 2024 (in 5 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE course will examine the impact of the Department of Justice's (DOJ) renewed "all-or-nothing" approach and restoration of the Yates Memo for director and officer (D&O) indemnification, fee advancement provisions, and D&O insurance policies. The panel will provide guidance to corporate counsel for drafting and/or updating corporate bylaws and other governance documents, stand-alone agreements, and D&O insurance policies to ensure their provisions on indemnification and advancement of legal fees provide adequate protection to directors and officers in the event of a DOJ enforcement action.

Description

During the Trump administration, the DOJ moved away from the Yates Memo's "all-or-nothing" approach to disclosures and returned to a policy of giving discretion to prosecutors while retaining a focus on individual accountability. Under the Biden administration, the DOJ has renewed some of the same themes expressed in the Yates Memo, whereby corporations seeking any cooperation credit in civil or criminal investigations must provide all information concerning all persons involved in corporate misconduct. This means corporations must identify all participants in the illegal activity regardless of their position, status, or seniority, and provide the DOJ with all nonprivileged information relating to that misconduct. This applies to both current and former employees and third parties.

With the DOJ's renewed strict approach, corporate directors and officers are scrutinizing their boards' indemnification, fee advancement, and D&O insurance policies to ensure that adequate protective measures are in place in the event that the DOJ initiates an investigation.

Counsel drafting or updating D&O indemnification and fee advancement provisions should ensure that they clearly outline who is entitled to indemnification and advancement of fees, the scope of indemnity, any limitations on the right to indemnity, and that the advancement provisions allow for payment of fees throughout the life of the case.

Counsel must also anticipate potential statutory and case law limitations, enforcement hurdles, and the interplay of indemnification provisions with D&O insurance coverage.

Listen as our authoritative panel discusses the impact of the DOJ's return to the Yates Memo era on D&O indemnity, fee advancement, and insurance coverage. The panel will review considerations and best practices for corporate counsel drafting or reviewing corporate bylaws and other governance documents, stand-alone indemnity and advancement agreements, and D&O insurance policies to ensure maximum protection for directors and officers in the event of a DOJ enforcement action.

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Outline

  1. Renewed "all-or-nothing" approach and its implications for D&O indemnification, advancement, insurance
  2. Best practices for drafting/updating governance documents, standalone agreements, insurance policies

Benefits

The panel will review these and other key issues:

  • What concerns have the DOJ's renewed "all-or-nothing" approach raised for corporate officers and directors as it relates to D&O indemnification, advancement, and insurance?
  • What are some best practices for drafting D&O indemnification and advancement provisions to ensure that adequate protections are in place for directors and officers?
  • How do D&O indemnification provisions interplay with a typical D&O insurance policy in terms of the scope of protection that each provides?

Faculty

Beskin, Julia
Julia Beskin

Partner
Schulte Roth & Zabel

Ms. Beskin has extensive experience litigating in the Delaware Court of Chancery, including disputes related to limited...  |  Read More

Dubow, Jay
Jay A. Dubow

Partner; Co-Leader Securities Investigations + Enforcement Practice Group
Troutman Pepper

Mr. Dubow focuses his practice on complex business litigation, with a special emphasis on defending against shareholder...  |  Read More