Navigating D&O Fiduciary Duties in the Zone of Insolvency
Avoiding and Defending Fiduciary Duty Claims and Maximizing D&O Insurance Coverage
A live 90-minute CLE video webinar with interactive 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 creditors may enforce those duties. The webinar will offer strategies to avoid and defend against breach of fiduciary duty lawsuits and analyze the impact of bankruptcy and insolvency on existing D&O insurance coverage.
Outline
- 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
- Indemnification
- 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
Benefits
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 on 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?
Faculty
Andrea R. Cunha
Partner
K&L Gates
Ms. Cunha is a partner in the Austin office and a member of the firm's health care and FDA practice Group. She... | Read More
Ms. Cunha is a partner in the Austin office and a member of the firm's health care and FDA practice Group. She concentrates her practice on health care transactions and regulatory compliance counseling, advising both buyers and sellers of physician practices, dental practices, hospitals, home health and hospice agencies, laboratories, telemedicine providers, skilled nursing facilities, long-term care facilities, and other ancillary health care providers. As an experienced restructuring attorney, Ms. Cunha represents clients looking to purchase or sell distressed assets, both through out-of-court workouts and formal bankruptcy proceedings.
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Andrew G. Dietderich
Partner
Sullivan & Cromwell
Mr. Dietderich is co-head of S&C’s Global Finance & Restructuring Group. His practice focuses on the... | Read More
Mr. Dietderich is co-head of S&C’s Global Finance & Restructuring Group. His practice focuses on the legal challenges faced by companies and their stakeholders during periods of change, activist attention or financial distress. Mr. Dietderich is a generalist lawyer with experience in most areas of transactional law. He also started S&C’s lauded corporate restructuring practice and is recognized in Chambers as a “strategy genius, who is able to boil down complex concepts into things clients can easily understand.” Mr. Dietderich has represented debtors, strategic partners and proactive creditors in some of the largest and most challenging corporate restructurings in U.S. history, including Garrett Motion, Eastman Kodak, Chrysler, Caesars and General Growth Properties.
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Brian J. Koenig
Shareholder
Koley Jessen
In his commercial bankruptcy and financially-distressed transactions practice, Mr. Koenig counsels a variety of clients... | Read More
In his commercial bankruptcy and financially-distressed transactions practice, Mr. Koenig counsels a variety of clients including creditors, debtors, bankruptcy trustees, creditor committees, and post-bankruptcy investors, to help them evaluate risks, minimize their exposure, maximize their recoveries, structure transactions, and cost-effectively resolve issues. His experience includes: formulating strategies to assist banks and companies dealing with financially-distressed and bankrupt customers to maximize their recoveries; negotiating out-of-court workout and forbearance agreements; counseling creditors, debtors, and investors in commercial transactions and foreclosures, including mortgage foreclosure proceedings, strict foreclosure actions, and UCC sales; and litigating matters in state and federal courts, including actions under guaranties, replevin actions, avoidance actions, objections to discharge, dischargeability actions, preference claims, subordination claims, and equitable recharacterization claims, among others.
CloseEarly Discount (through 08/26/22)
Cannot Attend September 21?
Early Discount (through 08/26/22)
You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.