The FDIC’s latest Quarterly Banking Profile for the period ending December 31, 2011, released February 28, 2012 (here), reflects a generally improving banking landscape and a continuing reduction in the number of problem institutions. But though the industry is showing improvement, the number of problem banks, though down from immediately prior periods, still
Failed Bank Litigation Questions: Standard of Liability and Affirmative Defenses
During the current bank failure wave more banks have failed in Georgia than in any other state. For that reason, the recent dismissal motion ruling in the first failed bank case the FDIC filed involving a failed Georgia bank takes on a heightened level of significance. Northern District of Georgia Judge Steve C. Jones’s February
A Closer Look at Buffett’s Letter to Berkshire Hathaway Shareholders
The annual letter to Berkshire Hathaway shareholders of Warren Buffett, the company’s Chairman, is anticipated every year as much (or arguably more) for its commentary on the financial world and the economy as it is for its discussion of the company’s performance. This year’s letter (here), released on February 25, 2012, does not
Second Time Around on Say-on-Pay
The advisory shareholder vote required under the Dodd Frank Act went through its first cycle in 2011, and by and large most companies’ shareholders approved the companies’ executive compensation plans. Only about 45 companies (less than 2%) received negative “say on pay” votes from a majority of investors. But that does not mean that the
Taking a Look at the Limits of Indemnification
Indemnification is the first and most important line of defense for the protection of directors and officers. But corporate officials are not always entitled to indemnification. For example, under Delaware law, they cannot claim mandatory indemnification if their defense is not successful. And they cannot seek permissive indemnification is they did not act in good
D&O Insurance: When is a Claim First Made?
Most management liability insurance policies these days are written on a claims made basis – -that is, they cover claims that are first made during the policy period. But what determines when a claim is first made? A February 15, 2012 decision from the Western District of Texas and applying Texas law took a look
D&O Insurance: Meditations on the Meaning of “Relatedness”
Of all the questions surrounding liability insurance, the one issue that seemingly ought to be most obvious is the amount of insurance potentially available to respond to claims. Indeed, the question of the amount of insurance potentially available for a single claim usually is relatively straightforward and usually is answered by reference to the limit
Takeover Litigation in 2011
In their paper “A Great Game: The Dynamics of State Competition and Litigation” (here), Ohio State Law Professor Steven Davidoff and Notre Dame Finance Professor Matthew Cain analyzed the M&A related litigation during the period 2005 to 2010. I discussed this article in a prior post, here. In a newly released February
BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion
In the wake of the disastrous April 2010 Deepwater Horizon oil spill, BP was hit with a wave of litigation from plaintiffs asserting claims of personal injury, wrongful death and property damage. The claimants also included BP shareholders raising allegations that they had been misled regarding BP safety efforts and processes. In a 129-page February
All the M&A-Related Litigation Reference Material in One Convenient Location
During last week’s PLUS D&O Symposium, several of the panels discussed the problems surrounding the current onslaught of M&A-related litigation – and appropriately so, as the surging levels of M&A litigation is one of the most distinct and troubling current litigation trends. During the course of the discussion at the conference, several of the