Director and Officer Liability Practice

While Bailey Cavalieri LLC is new to the legal community, our directors and officers (D&O) lawyers are not. From their often cited two-volume treatise Liability of Corporate Officers & Directors (7th Edition, LexisNexis Matthew Bender Publishing) 2002, to their representation of clients in high-profile D&O claims including Enron, WorldCom, Adelphia, and Qwest, our D&O lawyers are experienced in all facets of D&O liability, indemnification and insurance. The breadth of our practice encompasses virtually every issue that relates to the risks confronting today’s corporate officers and directors.

Drafting Insurance Policies

Our lawyers have drafted most of the standard D&O policy forms and endorsements currently used in today’s insurance marketplace. We are regularly called upon to propose and draft changes to these policies to meet the needs of an ever-changing market. In addition, we have substantial experience in drafting employment practices liability (EPL), ERISA fiduciary, and various types of professional liability (E&O) policies and endorsements. As a result, we offer our clients a policy drafter's insight in resolving the numerous issues that arise in financially protecting corporations and their executives in a variety of contexts.

Insurance Underwriting Consultation

In this post-Enron era, the significance of sound, comprehensive underwriting is heightened. Carriers are probing deeper in their investigations and corporations are challenged in how to respond appropriately and effectively. Disclosures during the application process can create significant issues in a later claim. We regularly assist clients during this underwriting process with the goal of minimizing subsequent surprises. We also provide analysis and assistance to carriers in connection with their Loss Mitigation Underwriting activities (i.e., underwriting insurance for existing claims or known events).

Coverage Claims Counsel

The centerpiece of our D&O practice is representing our insurance company clients from the initial notice of a claim through ultimate resolution. Our lawyers have acted as coverage counsel in thousands of matters. In that capacity, we assist clients in making coverage determinations, drafting coverage correspondence, administering policy proceeds, monitoring underlying litigation, interfacing with defense counsel, participating in mediations, and facilitating settlements.

Coverage and Bad Faith Litigation

Unfortunately, insurance litigation has increased in frequency in recent years. Our D&O litigators regularly represent carriers in mediations, arbitrations, and lawsuits involving insurance coverage issues. We have been involved in proceedings relating to virtually all of the significant provisions of a D&O insurance policy, including rescission, severability, corporate indemnity, numerous exclusions, notice, and the application of the bankruptcy automatic stay to D&O policies and their proceeds. Our D&O lawyers have successfully defended bad faith claims for clients who have prevailed in obtaining declaratory judgments supporting coverage determinations.

Expert Witnesses in D&O Litigation

Several of our D&O lawyers are recognized nationally as leading experts on liability, insurance, and indemnification issues. Our credentials include:

Authors of Liability of Corporate Officers & Directors (7th Edition, LexisNexis Matthew Bender Publishing) 2002;
Speaking nationally on corporate officers’ and directors’ liability and insurance;
Contributing authors, Handbook for Corporate Directors (McGraw-Hill 1985);
Authors of numerous articles on D&O liability and insurance; and
Authors of numerous booklets printed by Chubb Group of Insurance Companies and National Union Fire Insurance Co. regarding loss prevention practices and liability exposure analysis.

D&O Loss Prevention

Because our lawyers bear daily witness to the traps and pitfalls confronting today’s directors and officers, we are well-equipped to counsel against them. In the aftermath of Sarbanes-Oxley, D&O Loss Prevention is of heightened importance. We regularly advise both companies and boards how to navigate and minimize the risks of new corporate reality. We have authored the following booklets addressing D&O Loss Prevention, printed by Chubb Group of Insurance Companies:

Independent Directors Liability Loss Prevention;
Directors and Officers Securities Litigation Loss Prevention;
Directors and Officers Liability Loss Prevention;
Directors and Officers Liability Loss Prevention for Nonprofit Organizations;
Directors and Officers Liability for Financial Institutions; and
ERISA Fiduciary Liability Loss Prevention.

D&O Legal Audits

To cope effectively with the complex and rapidly changing legal environment, our attorneys have created a comprehensive insurance program review, which includes evaluating the terms, amount, and types of insurance products maintained. By reviewing existing policies for gaps and adequacy, we strive to ensure that our clients maintain programs consisting of solid, cost-effective insurance, with integrated risk coverage consistent with current market conditions.

D&O Insurance Alternatives

For a variety of reasons, corporations have sought alternatives to traditional D&O insurance. While D&O insurance tends to be the best, most comprehensive risk shifting method for protecting corporate directors and officers, our lawyers have helped design creative alternative arrangements tailored to a company’s particular needs.