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
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.
- 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
- The 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 the 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
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
Benjamin D. Tievsky
Pillsbury Winthrop Shaw Pittman
Mr. Tievsky represents policyholders exclusively in insurance coverage matters involving general liability,... | Read More
Mr. Tievsky represents policyholders exclusively in insurance coverage matters involving general liability, environmental exposures, cyber liabilities, director and officer claims, and losses involving property damage and business interruption.Close