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 premium 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" to "filing" bankruptcy
- Duties to shareholders
- (Potential) duties to creditors
- Conflict in case law regarding fiduciary duties
- Potential claims
- Identifying the existence of a potential claim against the former directors and officers
- Interpreting the applicable insurance policy
- Investigation, prosecution, and resolution of such claims
- 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 an 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?
Brett M. Amron
Mr. Amron advises clients in complex business and bankruptcy litigation matters with an emphasis on director and... | Read More
Mr. Amron advises clients in complex business and bankruptcy litigation matters with an emphasis on director and officer liability, breach of fiduciary duty, partnership and shareholder disputes, fraud, and avoidance and recovery of preferential and fraudulent transfers. Mr. Amron represents court-appointed fiduciaries, trustees, receivers, corporations, shareholders, individuals, creditors’ committees, and secured and unsecured creditors. Mr. Amron speaks and writes frequently on various topics related to his practice.Close
Michael E. Foreman
Managing Director and Head of NY Office
Mr. Foreman is a senior corporate restructuring professional and independent director, who combines major law firm... | Read More
Mr. Foreman is a senior corporate restructuring professional and independent director, who combines major law firm partnership experience (including over 20 years with Proskauer Rose LLP) with C-Suite business acumen. His experience includes acting as a trusted advisor to clients facing significant challenge and transformation--financial distress, business crisis, financing workouts and replacement, senior management, and corporate governance transition and litigation. He provides multidisciplinary solutions that draw on his combined experience in corporate restructuring, bankruptcy, governance, and dispute resolution.Close
Alexander D. Hardiman
Pillsbury Winthrop Shaw Pittman
Mr. Hardiman has successfully litigated, arbitrated and settled hundreds of complex insurance coverage claims. He... | Read More
Mr. Hardiman has successfully litigated, arbitrated and settled hundreds of complex insurance coverage claims. He represents and advises corporate and individual policyholders in insurance coverage matters, including CGL claims, D&O insurance, fiduciary liability insurance, E&O insurance, and property insurance issues. Mr. Hardiman has extensive experience helping clients secure policy coverage for defense of class actions and product contamination and environmental hazard cases, as well as for governmental actions including antitrust claims and SEC investigations.Close