Bank Directors', Officers', and Lawyers' Civil Liabilities, Second Edition by John K. Villa List Price: $630.00 Eligible for Free Standard Shipping on U.S. Prepaid Orders Imprint: Aspen Publishers ISBN: 9781454801085 Looseleaf: 1,958 pages Publication Cycle: Updated semi-annually Last Updated: 6/3/2013 Automatic Supplementation More Info.

Description Bank Directors', Officers', and Lawyers' Civil Liabilities, Second Edition is an essential resource for any attorney who is litigating or attempting to settle cases brought by the federal and state banking regulators against directors, officers, and legal counsel of financial institutions. It provides current analysis of the new law emerging from the courts, the Supreme Court's landmark decision in O'Melveny & Myers v. FDIC and the demise of the federal common law regarding failed financial institutions. Directors' and officers' liability insurance and bank fidelity bonds are also covered in detail. John K. Villa guides you through the complexities of litigating an action - and discusses ways to reduce the chances of litigation - with strategic recommendations for all key players. This authoritative treatise answers essential questions such as: When is a bank director indemnified? How is the statute of limitations applied? What added responsibilities does a lawyer assume by becoming a bank director; does federal or state law control? What are acceptable courses of conduct for the bank? What must agencies prove before a court will enforce an administrative subpoena for financial data? How does the Sarbanes-Oxley Act of 2002 affect those banks that constitute a public company? Table of Contents CHAPTER 1. FIDUCIARY DUTIES OF DIRECTORS Common Law Breach of Fiduciary Duty What Law Applies? Statutory Bases for Liability 12 U.S.C. §§93 and 503 12 U.S.C. §501a 12 U.S.C. §1833a Other Banking Statutes Sarbanes-Oxley Act of 2002 CHAPTER 2. LIABILITIES OF BANK AND THRIFT COUNSEL Introduction FDIC Investigations, the Decision to Sue and Settlement Document Demands and Administrative Subpoenas Malpractice Aiding and Abetting Breach of Fiduciary Duty Fraud Attorney-Director The Standard of Care Applicable to Attorney-Directors Conflict of Interest Issues Defense Considerations Policy Considerations Theories Based on Breaches of State Attorney Conduct Rules Ethical Rules as a Basis for Liability Generally Conflicts of Interest Duty to Disclose or “Blow the Whistle” Duty to Withdraw Going “Up the Ladder”—Model Rule 1.13—Disclosure Within the Client Entity Liability Based on Breaches of the SEC's Reporting Requirements Attorneys Subject to Reporting Obligations Conduct Triggering the Reporting Requirements Extent of Reporting Obligations Relationship to State Disciplinary Rules Actual and Constructive Knowledge Scope-of-Representation Issues Generally Kaye Scholer Proximate Cause Affirmative Defenses Affirmative Defenses Based on the Conduct of the Agency as Receiver or Assignee Affirmative Defenses Based on the Conduct of the Regulators Statute of Limitations Damages CHAPTER 3. ADMINISTRATIVE ENFORCEMENT Definitions Individuals Subject to Administrative Actions “Violation” “Appropriate Federal Banking Agency” “Unsafe or Unsound Practices” “Any Written Agreement Entered into with the Agency” Civil Money Penalties Civil Money Penalties After FIRREA General Civil Money Penalty Authority General Civil Money Penalty Practice and Procedure Violations of the Federal Reserve Act Violations of the National Bank Act Violations of the Change in Control Act Violations of the Bank Tying Act Holding Company Act Violations Other Civil Money Penalty Authority Cease and Desist Orders Jurisdiction for Cease and Desist Orders Current Cease and Desist Authority Cease and Desist Order Disclosure Obligations Temporary Orders to Cease and Desist Capital Directives Penalties for Violations of Cease and Desist Orders or Capital Directives Asset Freezes Removal and Prohibition/Suspension Orders Pre-FIRREA Statute 12 U.S.C. §§1818(e), (g), (j) After FIRREA Consequences of Suspension, Removal or Prohibition Order—And Failure to Comply Persons Under Indictment or Convicted of Crimes Other Administrative Tools to Influence the Composition of the Board and Management Agency Disapproval of Directors and Senior Executive Officers of Certain Depository Institutions Prompt Corrective Action Administrative Hearings Hearing Rules of Practice and Procedure Review of Final Agency Decisions CHAPTER 4. DIRECTORS' AND OFFICERS' INSURANCE Introduction Duties of Bank Officers and Directors State Indemnification Laws Directors’ and Officers’ Liability Insurance: A Definition History of D&O Insurance D&O Insurance: Liability Versus Indemnity Characteristics of Liability Insurance Characteristics of Indemnity Coverage Characteristics of D&O Insurance D&O Insurance Distinguished from Fidelity Bonds Typical Policies Major Underwriters Structure General Rules of Construction Coverage Wrongful Act Loss Calculating “Loss” Discovery Period Retroactive Coverage and Retroactive Dates Coverage of Potential Claims: “Notice of Circumstances” Standard Exclusions The Dishonesty Exclusion Personal Profit Short Swing Trading Profits Other Insurance or Failure to Maintain Insurance Recently Developed Exclusions “Insured vs. Insured” Exclusion The Regulatory Exclusion Hostile Takeover Exclusion Prior Notice Exclusion Prior Litigation Exclusion Making a Claim Timing Adequacy: The Notice/Prejudice Rule and Notice of Circumstances Provisions Reservation of Rights Requirements Purpose Advancement of Attorneys' Fees and Costs of Litigation Defense Costs As Additions to the Limit on Liability Coverage of Criminal Attorneys' Fees Allocation Cooperation In General Invoking the Fifth Amendment Attorney-Client Privilege Settlements Insurer's Duty to Settle Policy Provisions Collusion Bad Faith Settlement By Less Than All Insureds Allocation Suits To Establish Coverage Declaratory Relief Effect of the No-Action Clause Direct Actions Against the Insurer Rescission Misrepresentation Effect on Other Directors Cancellation Grounds, Notice, and Limitations Non-Renewal Subrogation of Insurer Insurer's Subrogation Rights Against Outside Third Parties Priority of RTC or FDIC to D&O Proceeds CHAPTER 5. FIDELITY BOND CLAIMS Definition and Development of the Financial Institution Bond Definition Development Overview of Standard Bond Form 24 Standard Form 24 Loss-Sustained Bonds Duration of the Bond Rules of Construction and Waiver FIB Definitions Employees Forgery Loans Property Exclusions Forgery Exclusion Civil Disturbance and Nuclear War Director Exclusion Loan Exclusion Losses Based on Customer Services Trading Losses Exclusions Resulting from Bank Errors Uncollected Funds Credit Card and ATM Losses Extortion Exclusions Restricting the Basic Insuring Agreements Potential Income Damages Expenses Miscellaneous Who Is Insured: Changes in Control and Other Considerations Changes in Control Joint Insureds Ownership Financial Considerations Limit of Liability Deductible Valuation Effect of Other Insurance Apportionment of Excess Recoveries Causation Discover Pre-1980 Efforts to Define Discovery A Definition of Discovery When Will Discovery Be Imputed to the Bank? Notice of Loss Mechanics Proof of Loss Effect of Inadequate Notice Collecting Indemnity Notice of Legal Proceedings and Election to Defend Cooperation Misrepresentation and Its Effects Termination and Cancellation Termination of the Bond in Its Entirety Termination Upon Discovery Subrogation Definition Subrogation Rights Against a Banks' Officers and Directors Timing of the Subrogation Remedy Coverage of Third-Party Claims Insuring Agreement (A): Dishonesty Individuals Covered Conduct Covered The Financial Benefit Requirement and Typical Employee Benefits Financial Benefit Test in Loan Losses Other Coverages Provided Under Standard Form 24 Insuring Agreement (D): Check Forgery Insuring Agreement (E): Securities Forgery Insuring Agreements (B) and (C): Property Losses Insuring Agreement (F): Counterfeit Currency CHAPTER 6. INDEMNITY Overview Indemnification Defined Purpose Public Policy Constraints Insurance Distinguished History Early State Laws Delaware and the Model Act Delaware and Model Acts Diverge Impact of Director Liability Crisis on State Indemnification Statutes The Delaware Indemnification Statute Overview Coverage Scope Procedures for Awarding Indemnification Advance Indemnity Payments Authority to Purchase D&O Insurance Nonexclusivity Federal Regulatory Limitations on Indemnification for Financial Institutions OCC Indemnification Requirements OTS Regulations FDIC's Indemnification Role Also Contains Over 50 Appendices—Including Policy Statements, Guidelines, and Key Primary Source Documents