Directors' & Officers' Directors' & Officers'

Matter Examples

Directors' & Officers'

ASX LISTED COMPANY

We acted on behalf of D&O insurers in relation to a claim for indemnity by the insured director of an ASX listed company. 

It was accepted that the insured had incurred extremely significant legal costs in defending an action brought against it by the Australian Securities and Investments Commission (ASIC).

We raised arguments in defence of the claim for indemnity based on alleged pre-contractual non-disclosure by the insured in reliance on what we alleged were breaches of the insured’s duty of utmost good faith and that duty’s interaction with section 54 of the Insurance Contracts Act.

The matter was resolved at mediation.

 

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (ASIC) AND AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (ACCC) INVESTIGATIONS

We acted as coverage counsel in relation to high-profile ASIC and ACCC investigations and prosecutions arising out of anti-competitive conduct in the transport and port logistics industry.

We monitored and developed a legal strategy (in conjunction with the insurer and the insured’s legal representatives) to resolve the matters as quickly as possible. We also monitored defence counsel’s legal spend over the course of the matter, which resulted in cost savings for the insurer in excess of $300,000.

 

CLASS ACTIONS

We advised an insurer in relation to claims made under D&O and prospectus liability policies following the collapse of a large vocational training provider.

The collapse gave rise to investigations by the Australian Securities and Investments Commission (ASIC) and three related class actions. We provided indemnity advice in relation to a number of complex issues, and then acted in close conjunction with defence counsel to protect the insurer’s position by minimising their exposure and reducing their defence costs.

By providing the insurer with clear liability advice at an early stage, it was possible for the insurer to put in place accurate claim reserves and to form a view of the merits of adopting an early settlement strategy.

 

CONTENTIOUS PROCEEDINGS

Our lawyers acted for an insurer and advised it on policy indemnity in contentious proceedings brought by a claimant against former directors of a gas distribution company for alleged price fixing and fraudulent conduct.

We negotiated an ‘extra policy’ arrangement with the insured directors and officers, which preserved the insurer’s rights in the event of a finding of fraudulent behaviour (not covered by the insurance policy) but gave the directors and officers sufficient time and resources to conduct their defence.

Our lawyers liaised with the counsel appointed by various defendant officers to ensure the matter was settled on favourable terms at an early juncture and minimised the prospect of potential regulatory investigations.

 

DIRECTORS OF MINING COMPANIES

Our lawyers defended directors of mining companies in ASIC hearings following the post-Global Financial Crisis collapse in commodity prices and subsequent large corporate failures.

 

DISCRIMINATION AND WRONGFUL DISMISSAL

We acted for a D&O insurer of a board of directors sued for the alleged discrimination against and wrongful dismissal of a fellow director.

The matter was notified to the insurer when the case was approaching trial, with the parties having already engaged in extensive settlement negotiations.

Under the circumstances, we had to work quickly and closely with defence counsel to investigate liability and quantum issues, and to negotiate a resolution for the insurer. This involved limiting their liability based on prejudice arising out of a missed opportunity to settle the matter earlier.

 

LLOYD’S SYNDICATE

Our lawyers acted on behalf of a Lloyd’s syndicate D&O insurer in relation to a non-disclosure and representation case for directors of a credit operation that failed to disclose an adverse Australian Securities and Investments Commission (ASIC) investigation in early policy years.

 

MANAGING AND MONITORING LEGAL REPRESENTATION

We acted for a D&O insurer of a number of directors, officers and employees of racing control bodies who were served with notices to co-operate with the Commission of Inquiry into the Racing Industry. Each was separately represented.

The Commission’s activities spanned a period of eight months from its initial investigations to findings.

We were responsible for managing and monitoring the legal spend of the five law firms appointed to represent the insureds over that period.

 

NOT-FOR-PROFIT ORGANISATIONS

Our lawyers acted for an officer of a significant not-for-profit organisation in proceedings in the Supreme Court of Western Australia relating to commercial transactions between related not-for-profit entities. The multi-million dollar dispute was listed for a two-week trial but was settled on favourable commercial terms shortly before trial, following protracted negotiations and a comprehensive assessment of the evidence and potential liability risks.

 

RESPONSIBLE ENTITY AND FRAUD

We defended a claim brought by a financier against the responsible entity of a high-yield fund and its director.

The claimant alleged in excess of $3 million in losses as a result of being misled into accepting a valueless second-priority share of a loan.

The claim, which was settled on commercially favourable terms for our client, involved our examining complex causation and indemnity issues arising out of the allegations that the insured had acted fraudulently.

 

SHAREHOLDER LITIGATION

Our lawyers advised a London market D&O insurer on coverage issues for multiple claims resulting from a US$70 million litigation in the United States.

In this case, the claims arose from shareholder litigation against the former CEO and director of a series of companies that operated a chain of international residences.

 

 

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