I am pleased to publish below a guest post from Bruce Vanyo, Richard Zelichov and Christina Costley of the Katten Muchin Rosenman law firm These three attorneys’ post addresses a new approach that plaintiffs’ lawyers are taking to “say on pay” challenges – that is, a preemptive attack in the form of a lawsuit
The Looming “Fiscal Cliff” and Business Risk
Next Tuesday, the country will elect its President for the next four years. Exactly one week later, Congress will return to take up a critical piece of deferred business that could dramatically affect the country for the next four years and even beyond, regardless of who wins the Presidential election.
In a culmination
D&O Insurance: Layers and Tears
One of the critical issues in building a D&O insurance program is the question of how to structure the insurance. Among the more complex issues is how to divide the program between “traditional” D&O insurance coverage and Excess Side A DIC insurance (which in effect provides catastrophic protection for individual directors and officers in certain
District Court: Insured vs. Insured Exclusion Does Not Preclude Coverage for FDIC’s Claims Against Failed Bank’s Directors and Officers
A significant side-effect from the current bank failure wave has been the FDIC’s assertion of claims against the former directors and officers of many of the failed banks. The FDIC’s claims have in turn raised significant questions of insurance coverage under many of the failed banks’ D&O insurance policies. As discussed in a prior post
Proposals to Address the M&A-Related Litigation Problem
The growing problem of M&A-related litigation has been well-documented on this site (refer for example here). The prevalence of M&A litigation has grown to the point that virtually every M&A transaction involves litigation, and often involving multiple lawsuits in multiple jurisdictions. These growing problems have been well-documented (refer for example here and here)
Goldman Sachs, Fabulous Fab, and Morrison’s Second Prong
In its June 2010 decision in the Morrison v. National Australia Bank, the U.S. Supreme Court enunciated a "transactions" test to determine the applicability of the U.S. securities laws. The Court said that the U.S. securities laws apply only to "transactions in securities listed on domestic exchanges and domestic transactions in other securities." Lower courts
With More Third-Year Anniversaries Looming, Is the FDIC Ramping Up the Failed Bank Litigation?
After a nearly three-month period in which the FDIC filed no new lawsuits against the former directors and officers of a failed bank, the agency has in recent days filed two new suits, both involving banks that were approaching the third anniversary of their closure. The FDIC’s latest lawsuit, filed in the Northern District of
Thinking About the Limits of Corporate Officials’ Defense Cost Advancement Rights
In addition to indemnification, corporate directors and officers also may have the right under applicable law and corporate by-laws to have their costs of defense advanced before the ultimate right to indemnification has been determined. A question that often arises is whether a corporation may withhold advancement. A recent decision from the Ontario Superior Court
Catching Up on What’s News
An overabundance of airplane time and a shortage of Internet access (not the mention my day job’s unrelenting requirements) have kept The D&O Diary on the blogging sidelines despite a host of noteworthy events in recent days. The march of events moves ever onward, but before the sands of time envelop recent notable events altogether
Former IndyMac Officers Cannot Rely on Business Judgment Rule as Defense in FDIC Failed Bank Lawsuit
On October 5, 2012, in the latest in a series of decisions addressing the question whether or not corporate officers (as differentiated from corporate directors) are entitled under California law to rely on the protections of the business judgment rule, Central District of California Judge Dale Fischer held that former officers of the failed IndyMac