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 video webinar with Q&A

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Conducted on Thursday, November 5, 2020

Recorded event now available

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Course Materials

This CLE course will provide bankruptcy counsel with a review of fiduciary duties of loyalty and due care owed by directors and officers to the corporation and shareholders as a company heads into insolvency and when those duties may be enforced by creditors. The webinar will offer strategies to avoid and defend against breach of fiduciary duty lawsuits, as well as analyze the impact of bankruptcy and insolvency on existing D&O insurance coverage.


When companies fail, whether due to market forces, macroeconomic trends, bad luck, or other problems, frequently management and officers are blamed for that failure--often in the form of a claim for breach of fiduciary duty or similar allegation. This is especially true if assets have been transferred to address the situation.

Shareholders and creditors frequently challenge actions taken by a company that led to financial insolvency. Directors and officers must head off such claims because a breach of duty by directors and officers can lead to lawsuits against the corporation. Case law, particularly the seminal Delaware case Bridgeport Holdings Inc. Liquidating Trust v. Boyer, guides directors and officers of companies facing bankruptcy on their fiduciary duties and offers practical steps for directors and officers to shield themselves from liability.

When a business becomes insolvent, and officers and directors are sued, legal battles arise over whether the proceeds of a D&O policy belong to the estate or the individual directors and officers. Though they may have assumed they had adequate coverage, directors and officers may face significant out of pocket legal fees to establish their right to insurance proceeds.

Listen as our authoritative panel of attorneys explains the fiduciary duties of directors and officers when a company faces insolvency and offers their differing perspectives on how to identify the existence of a potential claim against the former directors and officers, interpret the applicable insurance policy, and how to investigate, prosecute and, if possible, resolve such claims. The panel will also address strategies to avoid and defend against breach of fiduciary duty lawsuits, including D&O insurance coverage issues that arise in bankruptcy.



  1. D&O duties from "facing" to "filing" bankruptcy
    1. Duties to shareholders
    2. (Potential) duties to creditors
    3. Conflict in case law regarding fiduciary duties
  2. Potential claims
    1. Identifying the existence of a potential claim against the former directors and officers
    2. Interpreting the applicable insurance policy
    3. The investigation, prosecution, and resolution of such claims
  3. Strategies to avoid and defend against breach of fiduciary duty lawsuits
    1. When can directors and officers be sued, and by whom?
    2. Retain independent counsel to the board
    3. Retain outside experts
    4. Business judgment rule and "entire fairness" test
    5. Disguised "deepening insolvency" claims
    6. Claim preclusion
    7. Derivative suits
    8. Indemnification
  4. Impact of bankruptcy on D&O insurance coverage
    1. D&O insurance proceeds: who owns?
    2. Effect of the automatic stay on an insurer's ability to advance defense costs
    3. Insured vs. insured policy exclusion
    4. D&O coverage for companies emerging from bankruptcy
    5. 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?


Amron, Brett
Brett M. Amron

Bast Amron

Mr. Amron advises clients in complex business and bankruptcy litigation matters with an emphasis on director and...  |  Read More

Foreman, Michael
Michael E. Foreman

Foreman Law

Mr. Foreman is a restructuring lawyer, with considerable experience and expertise in financial restructuring and...  |  Read More

Tievsky, Benjamin
Benjamin D. Tievsky

Pillsbury Winthrop Shaw Pittman

Mr. Tievsky represents policyholders exclusively in insurance coverage matters involving general liability,...  |  Read More

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