Recent D&O Claims Developments

Recent D&O Claims Developments

The D&O claims environment is now in an unusually uncertain state, largely due to the potential for unprecedented and wide-spread changes directly and indirectly caused by the new Trump administration. Many of the predicted changes may appear to lessen D&O exposures, including more conservative judges and a more business-friendly regulatory environment. But other changes will […]

Unanimous Supreme Court Sides with IRS

Unanimous Supreme Court Sides with IRS

The Supreme Court resolved unanimously a common estate tax issue for many closely-held companies. The issue in Connelly v. United States was “whether the corporation’s obligation to redeem [a deceased shareholder’s shares] was a liability that decreased the value of those shares.” The court concluded it was not. Family-owned companies will often purchase life insurance […]

Insurance Issues Arising After Mass Shooting Occurrences

Insurance Issues Arising After Mass Shooting Occurrences

There is no question that mass shooting incidents in this country are unfortunately continuing at a staggering pace. As of April 29, the crowd-sourced “Mass Shooting Tracker” project, which considers a mass shooting to include a single incident in which four or more people are shot in any incident, lists 163 incidents that fit this […]

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Insights

Corralling D&O Defense Costs: A Necessary Partnership Between Carriers and Insureds

Defense costs in D&O claims continue to increase dramatically, particularly in class actions alleging violations of federal securities laws. There are many reasons for this increase, but one of the primary reasons is the defendant insureds’ failure, for whatever reason,... Read More

Cyber Risks: New Focus For Directors

Cyber risks have become a major potential loss exposure for most corporations. Although nonexistent just a few years ago, most companies today are vulnerable to a growing list of threats relating to technology misuse. Not surprisingly, as businesses have become... Read More

Excess Policy Attachment: Policy Language Prevails

One of the most important issues under excess insurance policies relates to when liability attaches to the excess policy. In recent years, attachment disputes have arisen with increased frequency, particularly under excess D&O insurance policies. In many large D&O cases... Read More

Mergers & Acquisitions: A Minefield for Directors

When a company becomes involved in an actual or proposed merger or acquisition (“M&A”), its directors are thrust into a highly volatile and dangerous claims environment. Particularly with respect to directors of the acquired or target company, any decision to... Read More

Indemnification: Forgotten D&O Protection

In the current post-Enron environment, directors and officers increasingly realize, perhaps more than ever before, that absent strong financial protection, their personal assets are at risk if they are alleged to have committed wrongdoing in their capacity as a director... Read More

The Small Business Reorganization Act of 2019: A New Opportunity for Small Businesses in Financial Distress

On August 23, 2019, the Small Business Reorganization Act of 2019 was signed into law to make it easier for small businesses to successfully emerge from bankruptcy. For qualifying small businesses, the Act will ease the financial burdens of bankruptcy... Read More

Cyber Risks: New Focus for Directors (including SEC Disclosure Guidance)

Cyber risks have become a major potential loss exposure for most corporations. Although nonexistent just a few years ago, most companies today are vulnerable to a growing list of threats relating to technology misuse. Not surprisingly, as businesses have become... Read More

Municipal Bankruptcy in Ohio – Threshold Eligibility Requirements under the Bankruptcy Code and Ohio Law

Municipal income tax revenue is critical to a city’s budget. In Ohio, the collection of municipal income tax is generally based upon where the employee works rather than where the employee lives. However, with the Covid-19 pandemic, thousands of Ohioans... Read More

Trick or Treat: Are Observer Directors Really Directors in Disguise?

An increased number of corporations appear to be now considering or implementing the practice of utilizing “observer” or “advisory” directors who are not formally elected as directors but who participate at board meetings as non-voting attendees. A corporation’s apparent goal... Read More

Structuring Side A Programs: Traps for the Unwary

The popularity of Side A D&O insurance policies (which insure only non-indemnified losses incurred by directors and officers) continues to increase. As both outside directors and officers become more familiar with the extraordinary protections available through a broad and high-quality... Read More

The Business Judgment Rule Under Attack

The business judgment rule (BJR) has served for decades as the single most important protection against personal liability for directors and officers. First developed by courts over a century ago, this common law defense prevents courts from second-guessing the quality... Read More

Lawyer-Directors: An Endangered Species

Approximately 30% of the 250 largest industrial companies in the U.S. include on their boards of directors a lawyer, most of whom are partners in a law firm which represents the corporation. From the lawyer’s standpoint, this practice helps strengthen... Read More

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