Navigating D&O Fiduciary Duties in the Zone of Insolvency
Avoiding and Defending Fiduciary Duty Claims and Maximizing D&O Insurance Coverage
Recording of a 90-minute CLE webinar with Q&A
This CLE webinar will provide bankruptcy counsel with a review of fiduciary duties directors and officers owe shareholders and creditors as a company faces insolvency, offer strategies to avoid and defend against breach of fiduciary duty lawsuits, and analyze the impact of bankruptcy on existing D&O insurance coverage.
- D&O duties … from “facing bankruptcy” to “filing bankruptcy”
- Duties to shareholders
- (Potential) duties to creditors
- Conflict in case law regarding fiduciary duties
- Strategies to avoid and defend against breach of fiduciary duty lawsuits
- When can directors and officers be sued and by whom?
- Retain independent counsel to the board
- Retain outside experts
- Business judgment rule and “entire fairness” test
- Disguised “deepening insolvency” claims
- Claim preclusion
- Derivative suits
- Impact of bankruptcy on D&O insurance coverage
- D&O insurance proceeds—who owns?
- Effect of automatic stay on insurer’s ability to advance defense costs
- Insured vs. insured policy exclusion
- D&O coverage for companies emerging from bankruptcy
- Policy provisions that provide maximum protection to directors and officers
The panel will review these and other key issues:
- What strategies can counsel for directors and officers employ to defend against breach of fiduciary duty lawsuits?
- How can corporations avoid and defend derivative lawsuits arising from director and officer actions?
- What D&O insurance policy provisions provide maximum protection for directors and officers in the event of the company’s bankruptcy?
Samuel S. Cavior
Pillsbury Winthrop Shaw Pittman
Mr. Cavior’s practice focuses on representing debtors and creditors under Chapter 11 of the U.S. Bankruptcy Code... | Read More
Mr. Cavior’s practice focuses on representing debtors and creditors under Chapter 11 of the U.S. Bankruptcy Code and in out-of-court financial restructurings. Recently, Mr. Cavior assisted in the successful reorganization of the third largest petrochemical company in the world. Other past matters include the representation of debtors and would-be debtors in retail, asbestos, telecommunications, healthcare, energy, financial services and airline Chapter 11 cases, and of creditors and other interested parties in bankruptcies and other distressed situations.Close
Michael E. Foreman
Mr. Foreman is a restructuring lawyer, with considerable experience and expertise in financial restructuring and... | Read More
Mr. Foreman is a restructuring lawyer, with considerable experience and expertise in financial restructuring and corporate bankruptcy, transactions (M&As, divestitures and major contracts) and corporate governance issues, and dispute resolution. He has extensive experience in the C-suite and boardroom, across the negotiation table and in court, as both a corporate transactional lawyer and business litigator.Close
Alexander D. Hardiman
Pillsbury Winthrop Shaw Pittman
Mr. Hardiman is an experienced litigator, focusing on insurance coverage litigation and dispute resolution, with... | Read More
Mr. Hardiman is an experienced litigator, focusing on insurance coverage litigation and dispute resolution, with an emphasis on commercial general liability insurance, directors' and officers' (D&O) insurance, fiduciary liability insurance, errors and omissions (E&O) insurance, as well as property insurance issues.Close