Self-study: Fiduciary Duties of Directors and Officers of Distressed Companies

To whom are duties owed? Who can bring what kind of lawsuit? Are the rules the same for corporations and LLCs? This course answers these and other key questions regarding critical responsibilities of directors when facing a distressed situation. Taken into account are recent decisions have brought clarity to this area, some of them contradicting the common understanding (at least among non-experts). Based on the January 9, 2013, webinar.

Learning Objectives

After completing the course participants will be able to:

• Describe the two basic fiduciary duties.
• Identify three basic requirements to qualify for protection under the business judgment rule.
• Explain the difference between duties owed to the entitiy versus those owed to creditors.
• Define and discuss the implications of operating agreements related to duties toward LLCs.
• Explain how invsolvency impacts a directors' duties for subsidiaries
• Discuss the difference between "claims made" vs. "incurrence" insurance policies and identify three types of coverage for directors and officers.

Speakers

Edwin Ordway, CIRA, Capstone Advisory Group, LLC (Moderator)—Ed Ordway specializes in providing financial restructuring advisory and investigative services to companies, creditors, equity holders and third-party purchasers in the workout and financial communities. Mr. Ordway has also served as a court appointed examiner and as a trustee, and has provided expert testimony concerning bankruptcy matters. Prior to co-founding Capstone, Mr. Ordway was a Senior Managing Director at the Policano & Manzo legacy practice at FTI Consulting for fourteen years, most recently as co-leader of FTI’s national restructuring practice. Previously, he spent five years as Chief Operating Officer of Knickerbocker Associates, a real estate development and investment company with projects valued in excess of Worldwide $100 million. He was also with a major auditing firm for eight years.

Daniel Armel, CIRA, Baymark Strategies LLC—Dan Armel has over 35 years of corporate advisory and financial restructuring experience, including ten years as a banker (from 1978 to 1985, Dan ran a group within Morgan Guaranty Trust that structured and negotiated complex financings for natural resource and construction projects around the world); eight years as a partner-in-charge of Coopers & Lybrand’s Western Region Business Reorganization Services practice; and the last 19 years as Chairman of Baymark Strategies. Since 1993, on behalf of Baymark’s equity fund and private investor clients, Dan has both advised and served on boards of directors in guiding their companies through difficult transition periods. In these situations, Dan is frequently called upon to develop and assist management in implementing new business plans, and often to formulate and negotiate refinancings, recapitalizations, or a sale of a business.

Ben Logan, Esq., O'Melveny & Myers LLP—Ben Logan is a partner in O'Melveny’s Los Angeles office and the senior member of O’Melveny’s Restructuring Practice. The primary focus of his practice is chapter 11 reorganizations and out-of-court workouts, representing major creditors and business debtors. Ben is recognized by Chambers and Partners USA as one of the leading insolvency/corporate recovery lawyers in California, was selected by his peers for inclusion in The Best Lawyers in America, is listed in the PLC “Which Lawyer Handbook” as a “Highly Recommended” insolvency and restructuring lawyer, and also is listed in the Legal Media Group’s Expert Guides as a leading insolvency and restructuring lawyer. Chambers reports that Ben is "extremely talented" and “a seasoned and highly respected authority in the bankruptcy field,” “takes an extremely practical approach” and that he is “highly engaging and communicative, which makes him superb when it comes to highly fraught multiparty situations where building consensus is a must. He can also take on an army of attorneys alone and win.”