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D&O Liability Policies: A Potential Asset for Troubled Companies
One has only to open the newspaper, access the Internet, or turn on a television or radio to get a glimpse of the current turbulent economic climate. Businesses are cutting back or cutting jobs in an effort to survive, and the ongoing viability of many corporations and institutions appears to be in jeopardy. Historically, this type of economic climate is predictive of increased bankruptcy filings, liquidations, and other insolvencies. Under the appropriate circumstances, a company's directors' and officers' liability policies are potential corporate assets that should not be forgotten or ignored.
Directors' and officers' liability policies provide protection to officers and directors for claims against corporate officers and directors arising out of “wrongful acts” taken in their official capacities. “Wrongful acts” are defined in the policy itself, but typically extend to both acts and omissions, subject to stated exclusions. A wrongful act is typically defined as “breach of duty, neglect, error, misstatement, misleading statement, omission, or their misconduct as a director or officer.” A wide variety of activities may be covered, such as negligent omissions in proxy materials, misrepresentations of financial conditions and operations, violations of state law, overstating the corporation's net worth and future prospects, breaches of fiduciary duty, certain claims of self-dealing, misrepresentation, and constructive fraud.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.