Our committee has been active since we last met. Ongoing projects include planning, under Jim Wing's leadership, a CLE-eligible program at the Business Law
Section's Spring meeting in Los Angeles, sending out alerts of recent cases and other developments, updating our checklist for D&O insurance and
publishing this newsletter. A podcast on the attorney-client privilege as it relates to directors and officers is also in the works. Our committee will
meet in Los Angeles from 10:00 to 11:30 a.m. on Friday, April 11, 2014 in Plaza 3, Third level, at the JW Marriott Hotel. Our CLE, which is co-sponsored by
the Business and Corporate Litigation, Corporate Governance and Private Equity and Venture Capital Committees, is scheduled for 2:30 to 4:30 p.m. on
Saturday, April 12 in the Gold Ballroom, Salon 1, First Level, of the JW Marriott. Perhaps due to this level of activity and content-generation, I am
pleased to report that our committee is one of the fastest-growing committees of the Business Law Section. Thanks once again to our subcommittee chairs --
Frances Goins, Michaela Sozio and James Wing -- and the newsletter committee of Frances, Michaela and Corinne Amato, for their efforts in in keeping you up
to date on topics relevant to director and officer liability. I look forward to seeing you in Los Angeles.
Business Law Section Spring Meeting Information
The Director and Officer Liability Committee Meeting will be held on Friday, April 11, 2014 from 10:00 a.m. to 11:30 a.m. at the JW Marriott, Plaza 3,
The dial-in information is as follows:
Toll-free dial-in number (U.S. and Canada):
International dial-in number:
Spring Meeting CLE: Directors, Officers and In-House Counsel: You Think You're Covered, But You're Not (And What To Do About It)
April 12, 2014 at 2:30 p.m. to 4:30 p.m., Gold Ballroom, Salon 1, First Level, JW Marriott
This CLE is unique both in its focus and its panelists. The title is descriptive: "Directors, Officers and In-House Counsel: You Think You're Covered, But
You're Not (And What To Do About It)." It summarizes the results of the D&O Liability Committee's two-year exploration of the law and practice relating
to the advancement of defense costs to innocent executives and their counsel when they become, as a U.S. Supreme Court case put it, "ensnared in ambiguous
circumstances" that have criminal law implications. Experience teaches that these are the most stressful and potentially catastrophic claims that
executives and their counsel can face, and they are not prepared for the damage that frequently follows to their health, family relationships, career and
finances -- even if they are vindicated or not even charged.
The program will show how the common law of advancement has grown in a piecemeal fashion and remains fractured and complex. It will also demonstrate how
insurance coverage is only beginning to catch up. It will then suggest means to limit the possible damage.
The panelists have been selected to cover the waterfront. Francis Pileggi, a noted practitioner and Delaware law legal blogger from Eckert Seamans in
Wilmington, Delaware, will speak to the pitfalls and advantages of Delaware law and the twelve U.S. jurisdictions that are viewed as following it. Nancy
Adams of Mintz Levin in Boston, Massachusetts, a noted insurance practitioner, will illustrate the problems inherent in the laws of the 40+ Model Act
jurisdictions that require an executive seeking advancement to either waive critical Fifth Amendment rights as a condition to advancement or forfeit both
his or her job and right to advancement. She will also link those issues to cooperation clauses in D&O policies. James Wing of Holland & Knight in
Miami, Florida and Chicago, Illinois has defended executives caught in parallel civil and criminal proceedings and litigated advancement cases in which
Fifth Amendment concerns were paramount. He will provide attendees with a Fifth Amendment primer directed to executive risks in internal investigations. He
will also introduce our committee's current corporate counsel checklist as well as a 52 jurisdiction summary and analysis of advancement law as it relates
to the Fifth Amendment and other means by which executives' rights to advancement can be compromised.
In addition, Leslie Kurshan, chief executive of the management liability division of Marsh London, a major international insurance broker, will link these
points to current developments in both U.S. and international D&O insurance markets. Finally, Kara Altenbaumer-Price, management liability counsel for
USL Dallas, a major broker for cover for in-house counsel, will explore how these issues impact "employed lawyers" (the insurance-industry term) and
discuss particular issues unique to their protection when they are accused of aiding alleged miscreant executives.
The program promises to be both interesting and educational. The D&O Liability Committee encourages your attendance.
Lewis H. Lazarus
Morris James LLP
Chair, Directors and Officers Liability Committee
ABA Business Law Section