Laura McNally is our Latest Featured Speaker!

Our latest featured speaker is Laura McNally from Loeb & Loeb!

Laura will be speaking at our upcoming 10th Annual Federal Court Boot Camp in Chicago on April 26th! She has been speaking for us since 2015. Her most recent presentation at our Jury Selection program received outstanding reviews from attendees, and we’re so glad to have her again!

Laura has successfully tried complex commercial cases in state and federal courts, as well as in arbitration. Her cases have included issues of contract, fraud, employee mobility, trade secrets, insurance coverage, product liability, fiduciary obligations, and legal malpractice. As Co-Chair of her firm’s Retail and Consumer Brands industry group, Laura has significant focus on legal issues facing this important sector of the economy. She has represented leading retailers and consumer product manufacturers on issues relating to consumer protection, defamation, and antitrust issues, and she has been quoted in the National Law Journal and Bloomberg News. In addition, she has filed amicus briefs in the United States Supreme Court on behalf of the U.S. Chamber of Commerce, the Retail Litigation Center, and the Streamlined Sales Tax Governing Board relating to issues affecting the retail and consumer products industry.

She is a frequent speaker on mediation advocacy, including at the Seventh Circuit Judicial Conference, and she has settled cases ranging from small commercial disputes to mass torts involving hundreds of parties to class actions filed against major international retailers.

In addition, Laura has represented many clients on a pro bono basis in civil rights matters, including the first case to establish AIDS-related disability discrimination before the District of Columbia Commission on Human Rights. Laura serves as the Chicago chair of her firm’s Pro Bono Committee.

Scot Wilson is our Latest Featured Speaker!

Our latest featured speaker is Scot Wilson from Robinson Calcagnie!

Scot will be speaking at our upcoming 15th Annual Federal Court Boot Camp in Los Angeles on May 3rd! He has spoken for us several times since 2013. At our How to Master the Deposition seminar in 2018, Scot received outstanding reviews from attendees. We’re glad to have you, Scot!

Scot has been an attorney since 2002. He has over 17 years of experience representing clients in personal injury‚ wrongful death, consumer protection, employment, business, and class action cases. In addition to personal injury and wrongful death cases, Mr. Wilson also handles class action cases. Scot was one of the trial lawyers in the landmark In re Tobacco II class action trial on behalf of California consumers in which Philip Morris was found to have fraudulently and deceptively marketed Marlboro “Light” cigarettes as being safer and healthier than regular cigarettes.

Before joining Robinson Calcagnie in 2010, Scot was previously a shareholder at a business litigation firm in Newport Beach for six years where he represented clients in business, employment, and class action litigation. Before that, he was an associate at an international law firm in Irvine for two years. Mr. Wilson previously clerked for Judge William J. Rea in the United States District Court for the Central District of California. He also served as a pro bono Deputy District Attorney with the Orange County District Attorney’s Office Trial Attorney Partnership Program.

Mr. Wilson has been admitted to practice in California since 2002 and has been admitted and handled cases in state and federal courts throughout the country.

In addition to being a member of the State Bar of California, he is a member of the Western Trial Lawyers Association (“WTLA”), Consumer Attorneys of California (“CAOC”), Orange County Bar Association (“OCBA”), Association of Business Trial Lawyers (“ABTL”), and Orange County Trial Lawyers Association (“OCTLA”). In 2015 and 2016, Scot was on the Board of Directors for the OCTLA. He is the author of the Recent Cases column in the CAOC’s Forum Magazine and is a member of the OCBA’s Administration of Justice committee

Scot has been named a Super Lawyer by Los Angeles Magazine for his work. In 2018, Mr. Wilson was a recipient the prestigious California Lawyer Attorney of the Year (“CLAY”) Award.

He frequently gives presentations to other lawyers regarding trial advocacy, deposition techniques, and emerging issues in personal injury, consumer protection, and class action lawsuits.

Danielle Gould is our Latest Featured Speaker!

Our latest featured speaker is Danielle Gould from Burke, Warren, MacKay & Serritella!

Danielle will be speaking at our upcoming 10th Annual Federal Court Boot Camp in Chicago on April 26th. This will be her first time speaking for us, and we’re looking forward to her presentation!

Danielle is an experienced litigator and practice leader in her firm’s Class Action Defense group. She represents companies and individuals in litigation matters involving commercial and business disputes, consumer fraud, false and deceptive advertising, unfair business practices, appraisal fraud, mortgage lending and loan servicing practices, employment disputes, and claims of negligent hiring and retention of employees. This includes having defended clients in more than fifty class action matters nationwide involving a variety of claims based on state common law, consumer fraud statutes, the Telephone Consumer Protection Act, the Fair Labor Standards Act, the U.S. Bankruptcy Code, the Truth in Lending Act, the Real Estate Settlement Procedures Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and Chicago’s Residential Landlord Tenant Ordinance.

Danielle has also represented individuals requiring pro bono representation in immigration matters. Prior to joining her firm, she practiced law at the Chicago office of Jenner & Block.

Ian Fisher is our Latest Featured Speaker!

Our latest featured speaker is Ian Fisher from Hahn Loeser & Parks!

Ian will be speaking at our upcoming 10th Annual Federal Court Boot Camp in Chicago on April 26th! He also spoke at last year’s Federal Court Boot Camp. Welcome back, Ian!

Ian represents commercial clients ranging from small entrepreneurs to Fortune 100 companies. He has successfully litigated cases involving real estate, antitrust, trade secret misappropriation, consumer and business tort disputes.

Ian has substantial experience with class-action and multi-district litigation proceedings and has successfully defended on appeal several trial court victories. He is skilled at identifying strategies that align with his clients’ business goals.

Having served as a general counsel for both a law firm and a small company, Ian has a unique understanding of in-house counsel’s perspective.

Illinois Super Lawyers has repeatedly ranked Ian as one of its “Top 100 Attorneys.” For more than 15 years, the Leading Lawyers Network has named Ian as a “Leading Lawyer” in both Commercial Litigation and Class Action/Mass Tort Defense, and he has been ranked more recently in Trade Secrets/Unfair Competition Law. He is also rated AV Preeminent® by Martindale-Hubbell, its top rating for ethical standards and legal ability.

 

 

Gary Guzzi is our Latest Featured Speaker!

Our latest featured speaker is Gary Guzzi from Akerman!

Gary will be speaking at our upcoming Insurance Bad Faith Cases program in Miami on April 12th! This will be his first time speaking with us. Welcome, Gary!

Gary serves as chair of Akerman’s Insurance Litigation Practice, a national team of 45 lawyers representing leading domestic and foreign carriers, self-insured corporations, municipalities, and related entities in insurance coverage and bad faith litigation. He protects the interests of national and international insurance carriers in bad faith disputes, coverage claims, rescissions and ERISA-governed policies.

With comprehensive experience in insurance disputes, Gary litigates life, disability, commercial general liability, directors and officers, errors and omissions, homeowner, business interruption, and auto claims. His bad faith experience includes both first-party claims such as wrongful denial, delay, improper appraisal invocation, and lowballing, as well as third-party claims such as failure to tender limits, failure to proactively negotiate, and improper settlement communications.

Gary also represents carriers in litigation pertaining to carriers’ rescissions of policies, including misrepresentations in applications, failure to update applications, and Stranger-Owned Life Insurance. Gary litigates cases involving life, disability, and similar policies governed by ERISA, including claims for breach of fiduciary duty and claims for benefits. Additionally, Gary advises carriers on proper techniques for claim handling, rescissions, and other aspects of carriers’ businesses.

Rochelle Wilcox is our Latest Featured Speaker!

Our latest featured speaker is Rochelle Wilcox from Davis Wright Tremaine!

Rochelle will be speaking at our upcoming Understanding SLAPPs program in San Francisco on April 5th. This is her first time speaking for us, and we’re thrilled to have her!

Rochelle, a California State Bar Certified Appellate Specialist, focuses her litigation and appeals practice on media law, including extensive experience with California’s anti-SLAPP law, defense of defamation, invasion of privacy and newsgathering claims, and access and reporter’s shield issues.

Rochelle’s practice also includes a full range of employment litigation on behalf of employers and general business litigation issues. She has broad experience in federal and state appellate courts in a wide array of issues and disputes.

Rochelle’s California Supreme Court experience includes participating in drafting six successful petitions for review, all of which had successful outcomes. She has been counsel for the winning party in her last eight cases before the California Supreme Court.

Fiduciary Duty Claims In Bankruptcy: Mitigating The Risks

Mitigating the risks of fiduciary duty claims in bankruptcy is something every attorney and corporate board member should think about – very early on.

Joseph Swanson and Donald Kirk represent company officers and directors in commercial litigation matters, navigating high-stakes cases involving fiduciary duty and bankruptcy.

Donald recently spoke for our Director & Officer Litigation webinar, and we’re so glad to have his and Joseph’s permission to share their article below.

 

Fiduciary Duty Claims In Bankruptcy: Mitigating The Risks

By Joseph Swanson and Donald Kirk

Businesses and other organizations fail from time to time. That is a reality of our capitalist system. In the vast majority of these cases, the failure occurs despite the best efforts of the business’ senior management and board. Market forces, macroeconomic trends or just bad luck are most often the cause of any particular business’ demise.

Unfortunately for the management and board, however, they may be blamed for the business’ failure. In a bankruptcy, the trustee, shareholders, employees and other third parties frequently look to hold the directors and officers responsible. In many cases, this comes in the form of a breach of fiduciary duty or similar claim. These claims are all the more likely when the failed business had a significant directors and officers insurance policy in place. Although defending these claims can be stressful for the directors and officers, as discussed below, there are protections in place for the defendants and strategies that can mitigate that anxiety, reduce their exposure, and ultimately resolve the case.

The Failure of Oversight Claim

Directors and officers generally owe fiduciary duties to fulfill their positions with care, loyalty and in good faith. These duties require directors and officers to (1) act with diligence and in an informed manner, and (2) put the organization’s interests ahead of their own (i.e., avoid personal conflicts of interest). This is true whether the organization is for-profit or not-for-profit.

In the wake of a business’ failure, the duty of oversight is the fiduciary duty most often at issue. As explained in In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996), a component of directors’ and officers’ fiduciary duties is an obligation to adequately oversee the organization, which includes establishing and monitoring compliance programs with regard to regulatory and legal obligations.

In cases subsequent to Caremark, the courts have stated that for liability to attach under the duty of oversight, the directors and/or officers must have “utterly failed to implement any reporting or information system or controls,” or, with such a system in place, “consciously failed to monitor or oversee its operations.” See, e.g., Stone ex rel. AmSouth Bancorporation v. Ritter, 911 A.2d 362 (Del. 2006).

As Caremark itself recognized, a failure of oversight claim is “possibly the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment.” Caremark, 698 A.2d at 967. To be viable, a Caremark claim requires conduct by the defendants that is more egregious than gross negligence, and that would mean an intentional failure to act despite a known duty to act. In other words, the plaintiff will need to show that the defendants knew they were not fulfilling their fiduciary duties.

Notwithstanding these exacting standards, plaintiffs routinely assert a failure of oversight claim against directors and officers. This may be because this claim, which resides within the duties of loyalty and good faith, generally falls outside any otherwise applicable exculpation provisions.

Fiduciary Duty Claims in Bankruptcy Proceedings

In a bankruptcy, particularly where the organization previously obtained a sizable D&O insurance policy, directors and officers may find themselves the targets of a duty of oversight claim. The trustee may contend that the failure by the directors and officers to monitor the organization and respond to various risks resulted in the organization’s demise. Further, the trustee will likely contend that the D&O insurance policy — and its proceeds — belong to the estate for the benefit of its creditors. In that situation, the directors, officers and carrier can expect to receive a demand letter from the trustee’s counsel asserting a claim on the policy. To make things worse for the directors and officers, that claim may be in addition to other claims, such as for securities violations, fraud and the like, asserted against those defendants by other parties.

Tips for Staying Out of the Crosshairs

The scenario outlined above is daunting for directors and officers of a failed organization. However, the following tips can not only help avoid the scenario in the first place, but can also mitigate the defendants’ risks and resolve the matter as efficiently as possible once a failure of oversight claim is asserted.

1. Fulfill the Duty of Oversight

Ideally, the directors and officers will avoid a claim altogether by discharging their fiduciary duty of oversight. To do so, these individuals should implement a reporting system and controls suitable for their organization and then monitor that system and controls for any red flags. That system and controls generally include regular board meetings with presentations on compliance and other high-risk subjects relevant for the organization. The board meetings should include input from consultants, as needed, such as for capital campaigns, executive compensation and other significant corporate transactions. Such meetings and presentations should be memorialized in minutes. Other hallmarks of a reporting system and controls are the use of outside auditors and the establishment and monitoring of reporting hotlines. Where an organization is experiencing significant financial strain, the directors and officers should be especially diligent and mindful of any duties they may have to creditors. The bottom line is that a documented record of attentiveness to these issues can be the best defense to an attempt by a plaintiff to assign blame for the organization’s failure to the directors and officers.

2. Obtain Sufficient Insurance Coverage

The directors and officers of any organization should consider the sufficiency of any D&O insurance policy that the organization obtains on their behalf. Issues to consider with any D&O insurance policy include the nature of claims to be covered, any exclusions to coverage, the retention amount, and the period within which any claim must be submitted to the carrier. Where appropriate, directors and officers should consider purchasing tail coverage, which will permit them to report any claims made after the policy has expired. Directors and officers should be particularly cognizant of the sufficiency of their coverage in times of financial distress for the organization.

3. Respond Vigorously but Efficiently to Any Claim

If a claim is made against the directors and officers, they should seek counsel who will respond vigorously but efficiently to the allegations. Efficiency is particularly important where the D&O policy is a “wasting” policy, whereby defense costs erode the policy’s limits. It is important that defense counsel in these matters have the ability to efficiently manage what is often a dynamic situation with multiple constituencies that include not only the clients, but the trustee and her counsel, counsel for the carrier, and counsel for any other claimants.

Counsel’s investigation should gauge the seriousness of the allegations. The investigation should include targeted client interviews and with third parties, as well as targeted document review. In our experience, the electronically stored information (ESI) at issue in these matters can be significant, so it is important to develop a plan to locate and review key documents as efficiently as possible. In responding to the allegations, defense counsel should never lose sight of the rigorous standard for a breach of oversight claim. Counsel should focus on whether any reporting system or controls were in place, and if so, whether the directors and officers responded to red flags. The trustee and her counsel will likely contend that the mere fact of the organization’s failure is proof of a lack of oversight. That position, however, ignores Caremark and its progeny, which dictate that plaintiffs must link the organization’s collapse to the alleged lack of oversight.

4. Consider Presuit Mediation

We have seen an emerging trend where the trustee and her counsel will propose a presuit mediation in an attempt to resolve the claims against the directors and officers. This approach has several benefits that defense counsel should consider. First, by engaging in this process, defense counsel may be able to resolve the claims without a lawsuit being filed, which would otherwise publicly name the defendants. For obvious reasons, this can be very attractive to directors and officers of a failed organization. Second, the process is likely to be less expensive than full-blown litigation, which means that fewer policy proceeds will be spent on defense costs. Third, preparing for the mediation allows counsel to understand the allegations, and whether they have any basis, sooner. This puts defense counsel in a better position to advise their clients and the carrier about the merits of the claims. This is very helpful if the mediation fails to resolve the matter.

The failure of a business or other organization is a traumatic event for many constituencies, including the directors and officers. A breach of fiduciary duty claim only makes that situation worse for those individuals. By following these tips, however, directors and officers — and their counsel — can seek to avoid that claim in the first place. And, if a claim is asserted, these tips can help to reduce the exposure and achieve a resolution.

Gary Watt is our Latest Featured Speaker!

Our latest featured speaker is Gary Watt from Hanson Bridgett!

Gary will be speaking at our upcoming Understanding SLAPPs program in San Francisco on April 5th. He recently spoke for us at our 4th Annual Advanced Appellate Conference, where seminar attendees raved about his presentation. We’re glad to have you again, Gary!

Gary serves as Chair of Hanson Bridgett’s Appellate Practice. He is a State Bar approved Certified Appellate Specialist, handling writs and appeals in all of the California appellate courts, including the California Supreme Court and the United States Court of Appeals for the Ninth Circuit. His practice also includes dispositive motions such as SLAPP, summary judgment, and post-trial motions. His appellate experience gives him unique insights into complex cases and esoteric disputes. He excels at issue spotting and arrives at thoughtful solutions to business problems. His practice includes risk management such as interpreting contracts, indemnity provisions, and more.

A passionate appellate lawyer and law professor, Gary has been on the faculty at U.C. Hastings College of the Law since 2001 teaching various appellate law courses and coaching intercollegiate moot court competition teams. Consistent with Hanson Bridgett’s commitment to pro bono work, Gary currently serves as Director of U.C. Hastings’ Ninth Circuit clinical program: the Hastings Appellate Project. As Director, he supervises law students in the pro bono legal representation of appellants. He is also a frequent lecturer at MCLE presentations throughout the Bay Area, and has taught hundreds of lawyers over the years on a vast array of appellate and litigation best practices.

Gary is also Chair of the Contra Costa County Bar Association’s appellate practice section. A prolific writer, Gary is a frequent contributor to the Daily Journal, The Recorder, and other legal publications, with over 75 published articles to date.