Time to Check Your Director and Officer Insurance Coverage
May 25, 2005
It has become clear that not all D&O insurance coverages are created equal, and in many instances, your policy may not provide the coverage that you count on. Clearly, in recent years, liability exposure for corporate directors has significantly increased. Earlier, outside directors not only were thought to be shielded by the application of the business judgment rule, but also protected by liability exculpation provisions contained in articles of incorporation, indemnity provisions providing up to the maximum allowed by state law (and in many instances individual indemnification contracts), as well as D&O insurance coverage on top of or to supplement or fund those protections. The erosion of protection not only for outside directors but also directors and officers generally, is a direct result of the corporate scandals that have erupted over the last several years, in one case creating the largest corporate bankruptcy in history, all due in large measure to fraudulent activity on the part of some.
Is SOX Worth It?
May 25, 2005
With the imminent phase-in of the SEC rules implementing Section 404 of the Sarbanes-Oxley Act of 2002 (SOX), which requires public companies to issue a management report and submit auditor attestation regarding the adequacy of the company's internal controls over financial reporting, the public debate over the cost-benefit analysis of SOX has intensified. The Sarbanes-Oxley Act and its implementing rules have provoked much controversy in their attempt to strike the right balance between protecting investors and unnecessarily cannibalizing scarce corporate resources owned by those same investors. While the SEC has historically offered concessions to smaller public companies due to the relatively higher regulatory burdens placed on them, it remains to be seen whether the SEC will continue to be sensitive to the burdens on smaller public companies in the implementation of SOX.
'Information Security 101'
May 25, 2005
Recent headlines have reported a startling number of security breaches and information thefts. A major university notified 120,000 of its alumni after a computer containing fundraising information including addresses and Social Security numbers was hacked by an unknown intruder; a subsidiary of the Lexis Nexis group announced that the records of 32,000 individuals may have fallen into the hands of thieves using the passwords of legitimate subscribers; Bank of America reported the loss of backup tapes containing the financial records of up to 1.2 million federal employees; payroll outsourcer PayMaxx faced allegations that it had exposed 25,000 customer records, including W-2 information, online; and cell phone provider T-Mobile released information about a hacker who was able to exploit a security weakness in a commercial software package to access customer records, sensitive government documents, private e-mail and candid celebrity photos.
The Benefits of Booker for Cooperating Defendants
May 24, 2005
The Supreme Court's decision in <i>United States v. Booker</i>, 125 S.Ct. 738 (2005), brought significant changes to federal criminal procedure. Mandatory sentences under the federal Sentencing Guidelines (Guidelines) became advisory, and with this change came some subtle but important opportunities for criminal defendants who cooperate or provide "substantial assistance" in prosecutions. Now, convicted corporations and employees may be able to provide more input to courts about their cooperation with or assistance to the government. This may make sentencing judges more willing to grant downward departures from sentences calculated by Guidelines formulas.
The Corporate Attorney-Client Privilege Survives
May 24, 2005
The dangers to the proper functioning of the corporate attorney-client privilege in the wake of recent federal and state law enforcement activities have been well-documented and widely discussed. The year is only half over and already two reports on the issue have been produced and a third major inquiry is underway. A survey by the Association of Corporation Counsel disclosed that 30% of the respondents' corporate clients had "personally experienced an erosion in protections offered by privilege/work product." A similar survey of outside counsel conducted by the National Association of Criminal Defense Lawyers reported 47% of corporate clients had experienced such an erosion. Both organizations have taken up the difficult task of 'debunking the myth' that assertion of the privilege is inappropriate or a sign of guilt.
Enforcement Against Market-Driven Misconduct
May 24, 2005
Government plays a critical role in the design of some free markets and in the operation of many. The recent energy debacle in California resulted in part from defective governmental design of California's markets for wholesale and retail electricity. Even where markets are shaped largely by private-sector activity, government often has a critical role in influencing the incentives that guide conduct in those markets. In particular, law enforcement agencies, especially regulatory agencies, have a critical responsibility for the proper functioning of competitive markets within their jurisdiction -- the responsibility to elaborate and enforce applicable laws so as to constrain market forces from driving participants into socially undesirable conduct.
In The Courts
May 24, 2005
National rulings of interest to you and your practice.
Chapter 11 Plan Exclusivity under the Revised Code
May 24, 2005
The filing of a case under Chapter 11 of the Bankruptcy Code bestows certain "inalienable" rights upon a debtor. In addition to the hallmarks of a bankruptcy case, such as the automatic stay's "breathing space" and the "fresh start" of a discharge, debtors have traditionally enjoyed rather protracted periods of "plan exclusivity." Plan exclusivity, as it is commonly referred, is that period in a Chapter 11 case in which the debtor has the "exclusive" right to file a plan of reorganization. With the passage of the amendment to Bankruptcy Code section 1121, Congress has encroached upon this particular "inalienable" right.
Financial Contract Amendments to Bankruptcy Code
May 24, 2005
Esoteric and arcane, the financial contract provisions of the new Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 -- those dealing with repurchase agreements, securities contracts, swap agreements, forward and commodity contracts -- have been given short shrift by a mainstream media focused on the more "newsworthy" consumer provisions of that legislation. However, to bankruptcy practitioners focusing on larger commercial cases or involved in the capital markets, these amendments are important and deserve a close look.
