When a company’s directors and officers are primarily responsible for its managerial functions and fiduciary duties, both the company and the directors and officers can face liability in the event of losses or damages resulting from wrongdoing. Companies need to protect both themselves and their directors and officers against all possible claims.
Examples of D&O Claims
Typically, D&O claims arise from situations in which directors or corporate officers are alleged to have failed to perform their management duties lawfully:
- A company was sued for a business tort when it tried to recruit a competitor’s employee who was bound by a non-compete agreement
- Corporate officers were alleged to have failed to disclose material information to investors
- A company made charges immediately before filing for bankruptcy, fraudulently misrepresenting its ability to pay what was charged
The Financial Impact of D&O Claims
When a company and its directors or officers are sued jointly or severally, litigation costs alone can amount to tens or hundreds of thousands of dollars. Likewise, if a company loses a suit, they and their directors and officers may be ordered to pay hundreds of thousands of dollars.
Companies need to ensure that their insurance coverage will apply to claims made directly against directors and officers. It’s advisable that they work with an insurance carrier who can advise them about their risk exposure and necessary coverage levels.