The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

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Accompanying the various print media stories this past week about the latest judicial developments involving jailed former Tyco CEO Dennis Kozlowski was the iconic photo of Kozlowski draping his arms over the shoulders of a couple of beauties at his wife’s infamous $2 million birthday bash on Sardinia.

There’s something about this photo that captures the ego-centric excessive essence of the era of corporate scandals. Maybe it’s the look of self-impressed arrogance on Koslowski’s face. It certainly is no surprise that the pictures and videos from the birthday party were a featured part of Kozlowski’s criminal trial.

The reproduction of the picture in connection with last week’s story highlights the fact that if you happen to have your arms around a couple of babes at a $2 million birthday bash on Sardinia paid for by persons to whom you owe a fiduciary duty, it is a really bad idea to allow pictures. (In fairness, at his criminal trial Kozlowski argued that the company paid only half of the cost of the event, which ostensibly also had some business-related purposes.)

The universality of this "no pictures" principle suggested to me that it might be worthwhile to assemble in one place all of the lessons that may be derived from the various corporate scandals over the years.

First, there is what I will call the Fabulous Fab Rule, which is that it is a really bad idea to write emails so provocative that they wind up reproduced above the fold on the front page of the Wall Street Journal.

Second, there’s the the Gen Re Executives Rule, which is that it is a good idea, if you discussing by telephone a transaction to recharacterize a public company’s reported financial results, to remember that all telephone calls at your Irish trading desk are recorded.

Third, there is the Smartest Guys in the Room Rule, which is that if an analyst is asking a probing question that targets sensitive issues (like the fact that Enron released its financial results without a cash flow statement or a balance sheet), it is a bad idea allowing yourself to be recorded referring to the analyst as an "asshole." (Actually, Skilling’s statement was "Well, thank you very much, we appreciate that …asshole.")

There undoubtedly are many other similar rules in the same vein that might be added to this list, and I encourage readers that have additional thought along these lines to add them to the list using this blog’s comment feature.

The Faithless Servant: The news stories this past week about Kozlowski related to the December 1, 2010 order by Southern District of New York Judge Thomas Griesa in the lawsuit Tyco filed against Kozlowski about the approximately $100 million of compensation that Kozlowski claims the company owes him under certain deferred compensation agreements. Tyco contended that the agreements were fraudulently induced or that the benefits were otherwise forfeit under New York’s "faithless service doctrine."

Based on the jury findings in the criminal trial, Judge Griesa concluded that under the faithless servant doctrine, Kozlowski must forfeit compensation and benefits earned during his period of disloyalty. Judge Griesa also concluded that various agreements entered during the period of Kozlowski’s disloyalty were fraudulently induced.

However, Judge Griesa also held that Kozlowski was entitled to trial on the question of his entitlement to benefits earned prior to the time at which the jury determined his disloyalty began. He also concluded that Tyco was not entitled to summary judgement on the company’s claim for contribution for legal expense incurred in defending lawsuits arising from Kozlowski’s breach of fiduciary duty.

The December 3, 2010 Wall Street Journal article about Judge Griesa’s ruling can be found here.

O.K., We Missed the Bridge Implosion, But You Don’t Get to See an Angry Troll Everyday: This video has quickly gone viral. From the WGN Morning News, here’s live local television in all of its glory: