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Beyond Chapter 11: Entity Coverage for Directors and Officers
More than 90% of public companies purchase “entity coverage” as part of their directors' and officers' (D&O) insurance policies. Entity coverage protects the company itself ' as opposed to its directors and officers ' against securities claims. During the last 2 years, however, it would have been difficult for the director of any public company to avoid hearing that entity coverage creates an undue risk of depriving the director of D&O coverage if the company for which he or she serves files for bankruptcy. One major D&O insurer distributed a paper containing this gratuitous advice to the directors of every public company in the country. Many legal seminars and D&O coverage proposals prepared by brokers also warn of this danger. Not surprisingly, CEOs and general counsel often are questioned by their boards about D&O coverage in the event of bankruptcy.
The dire warnings find little support in bankruptcy case law. In a number of recent major bankruptcies, including Enron, courts have allowed directors and officers access to the proceeds of their D&O policies despite the presence of entity coverage. The Southern District of New York's decision in In re Adelphia Communications Corp., 298 B.R. 49 (S.D.N.Y. 2003), follows this trend. Adelphia's directors and officers were charged with fraud in numerous civil and criminal proceedings. The directors and officers sought relief from the automatic stay to access the proceeds of their D&O policies to pay for their defense of these fraud cases. Although Adelphia's D&O policies contained entity coverage for Adelphia itself, the securities actions had been stayed as to Adelphia, and thus Adelphia had not sought reimbursement of any defense costs relating to those actions.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.