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CEO Leadership Network PROTECTING YOUR DIRECTORS AND OFFICERS FROM LIABILITY Sponsored by.

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Presentation on theme: "CEO Leadership Network PROTECTING YOUR DIRECTORS AND OFFICERS FROM LIABILITY Sponsored by."— Presentation transcript:

1 CEO Leadership Network PROTECTING YOUR DIRECTORS AND OFFICERS FROM LIABILITY Sponsored by

2 CEO Leadership Network Real time feedback and interactivity Q/A pod, chat pod Handouts Take-away Pod Questions to Hillary

3 CEO Leadership Network Joseph O’Neil Partner Peabody and Arnold Damian Brew Managing Director and National Claims Advocacy Practice Leader Marsh Inc

4 Peabody & Arnold LLP   Marsh USA 4 ZURICH D&O WEBINAR December 7, 2011 by E. Joseph O’Neil, Peabody & Arnold LLP and R. Damian Brew, Marsh USA

5 Peabody & Arnold LLP   Marsh USA 5 Presenters E. Joseph O’Neil Partner, Peabody & Arnold LLP R. Damian Brew Managing Director, Marsh USA - Financial and Professional Liability Practice (FINPRO)

6 Peabody & Arnold LLP   Marsh USA 6 Employment Practices Claims Have you been involved in a discrimination, harassment or wrongful termination clam?

7 Peabody & Arnold LLP   Marsh USA 7 Employment Practices Claims Over the last 20 years employment practices claims have become pervasive Gender, race and disability discrimination Sexual harassment Wrongful termination and whistleblower suits

8 Peabody & Arnold LLP   Marsh USA 8 Employment Practices Claims At risk parties include: The company itself Directors and officers Managerial employees and co-workers Potential claimants include: Disgruntled employees, former employees or applicants of employment Customers or clients Regulatory agencies (EEOC and state equivalent)

9 Peabody & Arnold LLP   Marsh USA 9 Ways To Mitigate Exposure EPL Insurance Either stand alone or as part of D&O Have a reliable and responsive “go to” law firm for EPL issues as they come up. Pay attention to warning signs: Abnormally high turnover in a particular area Multiple complaints about an individual Consider paying severance for releases (even if it hurts). Maintain accurate employee evaluations.

10 Peabody & Arnold LLP   Marsh USA 10 Bankruptcy Have you worked for a company when it went bankrupt?

11 Peabody & Arnold LLP   Marsh USA 11 Exposure of D&Os in Bankruptcy Breach of fiduciary duty owed to creditors when company is insolvent. Mismanagement claim by trustee, unsecured creditors or litigation trust. Fraud claims by lenders or vendors.

12 Peabody & Arnold LLP   Marsh USA 12 Mitigating Bankruptcy Exposure for D&Os Have insurance that applies when company cannot indemnify. Avoid making big claims as a creditor. Make sure distress company stays current on tax obligations. If you stay with a company during and after bankruptcy, make sure the Plan releases you for pre-petition conduct.

13 Peabody & Arnold LLP   Marsh USA 13 Mergers and Acquisitions Have you worked for a company while it merged into, or acquired, another company?

14 Peabody & Arnold LLP   Marsh USA 14 Merger and Acquisition Claims Activity Allege that company’s board of directors sold or plan to sell the company at terms unfavorable to shareholders Transactions Affected: Management Buyouts Going Private Transactions Mergers with Other Companies

15 Peabody & Arnold LLP   Marsh USA 15 Mergers and Acquisition Claims Allegations Breach of fiduciary duty to shareholders –Loyalty, care or good faith Auction Process was flawed or Conflict of Interest Federal Suits May Raise Proxy Issues Characteristics Filed in State Court-Multiple Jurisdictions Settle Quickly with Defense Costs Low (Historical) Plaintiffs seek injunctive relief-measure to improve returns to shareholders

16 Peabody & Arnold LLP   Marsh USA 16 D&O Risk Avoidance Best Practices Advisors: Counsel, Bankers, Accountants Diligence D&O Insurance: Key Terms Securities Claim Adequate Limits Dedicated D&O only coverage Claims Process

17 Peabody & Arnold LLP   Marsh USA 17 Securities Suits Traditional Source of Largest D&O Exposure Arises under Federal Securities Laws ’33 Act: Prospectus Liability ’34 Act (10(b)5 Liability) Aftermarket Disclosures

18 Peabody & Arnold LLP   Marsh USA 18 Securities Claim Trends NERA’s Recent Trends in Securities Class Action Litigation: 2011 Mid-Year Review Click here to view the report

19 Peabody & Arnold LLP   Marsh USA 19 Issues For D&Os Selection of Defense Counsel Importance of D&O Insurance Role of Counsel, Insurers and Broker Pre-Claim Steps to Mitigate Risk Selection of Insurer Policy Form Insurers’ Claims Handling Philosophies

20 Peabody & Arnold LLP   Marsh USA 20 Key D&O Policy Terms Fraud/Personal Profit Exclusions Definition of Claim Representations and Severability Notice-claims made Consent to Settlement, Counsel Covered Defense Costs

21 Peabody & Arnold LLP   Marsh USA 21 For more information: E. Joseph O’Neil R. Damian Brew

22 CEO Leadership Network TIME FOR YOUR QUESTIONS Write into the Q/A pod

23 CEO Leadership Network THANK YOU


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