Background.  Corporate directors and officers may face potential personal liability for claims made against them in their roles for the companies they serve.   Corporations may purchase directors and officers (D&O) liability insurance to cover claims faced by directors and officers, but the first line of defense is within the corporation’s governing documents, in provisions providing for exculpation, indemnification and advancement of legal expenses. This article will discuss how such provisions may apply to protect directors and officers against personal liability.

Exculpation.  Under many state corporate laws, a company may (but is not required to) provide in its articles of incorporation that a director does not have monetary liability to the company for breaches of the fiduciary duty of care, e.g. simple negligence.  Exculpation may not be provided, however, for certain extreme misconduct, such as (depending upon the state) breaches of the fiduciary duty of loyalty, bad faith conduct, intentional misconduct or violations of law, or transactions where the director derives an improper personal benefit. 

*Issues with Exculpation.   The particular advantage of exculpation is that it allows the director to file a motion to dismiss litigation in the preliminary stages of the case, before extensive (and expensive) discovery is done.  But exculpation has limitations that cannot be eliminated by corporate action:

• Not Available to Officers.   As officers have a direct management role in the day-to-day operation of a company compared to the more detached oversight role of directors, exculpation (which absolves liability for the duty of care) is seen to be inappropriate for officers as a matter of policy. 

• Application by Courts Can Be Uneven.  There are some federal cases viewing state law exculpation as an affirmative defense to be argued later in the case, rather than a reason to dismiss the case in its first stages, and so the prospect of avoiding the time, effort and expense of litigation is diminished.  Some state courts also express varying degrees of hesitation to allow for exculpation, by itself, to dismiss an action, even when applying a clear statutory provision on the issue.

Indemnification.  Indemnification is an undertaking by the company to defend the director and officer against the cost of certain claims, including legal fees, litigation awards and settlement costs.  Indemnification provisions are usually derived from the state law under which the company is established, which grant the company the power to indemnify directors and officers against claims they face in such roles, subject to certain limits on intentional misconduct.  The acceptable standard of conduct for indemnification is often called the “minimum standard of conduct.”  For example. Delaware’s statute provides that a corporation may indemnify any director or officer if he or she:

• acted in good faith
• acted in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and,
• had no reasonable cause to believe that his or her conduct was unlawful, in the case of a criminal action or proceeding.

In practice, many liability cases are dismissed or settled out of court, rather than litigated to judgment, so issues of “minimum standards of conduct” are not judicially determined.  State laws usually require indemnification where a director or officer is successful in defending a claim on the merits (Delaware law uses the phrase “on the merits or otherwise”, which is helpful for settlement situations).  Many states, like Delaware, do not require that a director or officer be “wholly” successful to recover indemnification; rather, indemnification is mandated “to the extent” a director or officer is vindicated.  Indemnification provisions are set forth in a corporation’s articles of incorporation and bylaws. 

Advancement of Expenses.  As a claim against a director or officer can linger for years, the ability to retain and pay legal counsel is important to a vigorous and successful defense.  Companies often want their articles and bylaws to allow the company to step in to provide payment (or reimbursement) of such expenses as they are incurred by directors and officers.  A timing problem arises, however, in that advancement of expenses necessarily occurs prior to the final disposition of the case that may either prove or disprove whether the director or officer met the “minimum standard of conduct” necessary for indemnification.  To address this issue, most state laws permit a company to advance expenses, including attorneys’ fees, to directors and officers facing a claim, and many companies make this advancement of expenses mandatory (not just permissive) under their organizational documents.  An important caveat, however, is that to receive advancement of expenses the director or officer must undertake to repay to the company any amounts advanced if he or she is determined to be not entitled to indemnification, e.g. when it has been determined that they have acted outside of the minimum standard of conduct described above.  While the right to advancement of expenses is commonly thought of as an element of indemnification, it is a distinct and separate right and may be contested or litigated as such.

*Issues with Indemnification and Advancement of Expenses. A director’s or officer’s right to indemnification and advancement of expenses is subject to the company’s ability to pay, and several legal limitations.

• Bankruptcy Law Limits.  Claims against directors and officers more frequently occur when the company is under financial distress that leads to bankruptcy.  Once in bankruptcy, the right for advancement of expenses to defend a claim, and indemnification for amounts owed under the claim, become claims that are reviewed by the bankruptcy court.

• Is the Claim Allowed?  In bankruptcy, a claim for advancement of expenses and indemnification must first be deemed an “allowed” claim under Section 502 of the Bankruptcy Code.   Contingent claims for reimbursement, where the claimant shares liability with the bankrupt company, are often disallowed under bankruptcy law. For directors and officers, this can mean that a claim for indemnification is disallowed (though it may be reconsidered when no longer contingent, i.e. upon disposition of the case), while a claim for advancement of expenses may more likely be allowed.   

• What is the Priority of the Claim?   If a claim for indemnification or advancement of expenses is deemed allowed, then under Section 507 of the Bankruptcy Code the bankruptcy court must decide what priority the claim is given vis-a-vis other claims.  Thus, a director or officer effectively competes for payment with claims of other creditors. Typically, claims based upon conduct that occurred prior to the bankruptcy filing are deemed to be general unsecured claims, which likely diminish the chances for a full recovery.  

• Derivative Suits.  A shareholder of a corporation may make a claim---not for themselves but on behalf of the corporation--- alleging that directors and/or officers have breached their fiduciary duties such as the duty of loyalty.  For several reasons, these “derivative” claims are generally seen as not being subject to indemnification. Under Delaware corporate law, for example, the general indemnification statute (Section 145(a)) addresses third party actions, not derivative actions, which are addressed by Section 145(b).  Under Section 145(b), indemnification for derivative claims is allowed in Delaware only for defense costs (but not judgments or settlements), and no indemnification for defense costs is allowed if the party seeking indemnification has been found liable to the corporation (unless otherwise allowed by a court).  Additionally, from a practical perspective, it may seem nonsensical for a company to pay money damages to itself, which is what would occur if indemnification were allowed for a derivative claim.    

• “Fees on Fees”.  If a company disputes that it owes indemnification for defense costs or advancement of legal fees incurred, as may be the case where a director or officer has been accused of bad faith or where management is split into factions by a proxy fight, activist shareholder or transaction, the director or officer may resort to hiring an attorney and incurring legal fees and expenses to compel the company to pay his or her legal expenses (thus incurring legal fees to get paid legal fees, or “fees on fees”).  A Delaware Supreme Court decision has supported the recovery of legal fees incurred in an advancement of fees dispute where the indemnified party is successful.  Outside of Delaware, courts may follow the “American Rule” and not be inclined to award payment of legal fees incurred as damages incurred in connection with litigation, absent a clear obligation (typically contractual) to do so.

• Federal Limits.  There are several federal restrictions on indemnification.  For example:

• SEC Policies.  Concerned about the deterrent effect of holding individual wrongdoers accountable under securities laws, the Securities and Exchange Commission (SEC) has a general policy prohibiting corporate indemnification against violations of securities laws where the offending director or officer is found guilty or admits liability.  Courts have generally acknowledged this policy, at least in the case of the anti-fraud provisions of the securities laws. Historically, however, most securities law cases were either dismissed or settled prior to a judicial finding of guilt, and the SEC had allowed defendants to “neither admit nor deny” wrongdoing in connection with the settlement.  Moreover, even if company indemnification was not available, an officer or director could readily seek payment under the company’s D&O insurance policy (and insurance payments were not deemed against public policy).  Amplified by former SEC chair White’s initiatives in 2013 (where the SEC departed its longstanding practice of allowing “neither admit nor deny” approaches to settlement of securities law violation cases), the SEC has expressed a desire to make wrongdoing directors and officers personally “pay” for their securities law violations. 

• 1940 Act.  For investment companies like mutual funds, corporate indemnification of a director is not permitted under Section 17(h) of the Investment Company Act of 1940 (1940 Act) for “willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his [sic] office”—so called “disabling conduct.” These restrictions have also been applied to situations involving advancement of expenses.  In sum, the SEC staff believes that, to advance expenses to a director involved in an indemnifiable claim, a fund’s board must either (i) obtain assurances (such as insurance or collateral) that the advance will be repaid to the fund if the director is found to have engaged in disabling conduct or (ii) have a reasonable belief (determined by a majority of independent, non-party directors or based on a written opinion of independent legal counsel) that no disabling conduct is involved and that it will ultimately be determined that indemnification is permitted.  The staff clarified that in determining whether disabling conduct occurred, the director at issue could be afforded a rebuttable presumption that he or she had not engaged in disabling conduct, thus making this determination potentially easier to resolve.  

Actions to Consider.  There are several ways to reduce the risk for personal liability of directors and officers, considering the limitations of indemnity and advancement of expenses discussed above.  

• Review of Language in Articles and Bylaws.  Directors and officers should review the indemnification language provided in their company’s articles of incorporation and bylaws.  Key considerations are whether:

• indemnification is granted “to the fullest extent” allowed by law
• indemnification is mandatory or permissive, and if permissive who approves and upon what standards
• advancement of expenses is specifically provided, and if so to what extent
• any particular exclusions or conditions apply for obtaining indemnification
• former directors and officers may be covered
• the provisions in the articles and bylaws “work” together and don’t conflict
• there is a bar against retroactive application of future amendments or repeal of indemnification provisions (i.e., such changes cannot deny claims based on prior events). 

• D&O Liability Insurance. Companies can address real and potential shortcomings of indemnification and advancement of expenses by obtaining an appropriate director and officer liability insurance policy.  The “Side A” coverage of a D&O policy applies directly to director and officer claims, and together with the more particular “Side A differences in conditions (DIC)” coverage, a company can purchase a fairly comprehensive solution to director and officer concerns about personal liability.  See “Am I Covered? What You May Be Missing In Your D&O Liability Insurance” for a discussion of this topic.

• Indemnification Agreements.  A trend among public companies is entering into contracts with directors and senior officers to provide them with more explicit details as when and how rights to indemnification and advancement of expenses apply.   An indemnification agreement can add welcome clarity to the definition of what types of claims are (and are not) covered and the procedures by which application for payment can be made and granted. An indemnification agreement may, for example, provide:

• mandatory, rather than permissive, indemnification in certain defined situations, so the director or officer doesn’t have to guess whether the company will step up to protect him or her (especially helpful when there has been a change in management and/or the director or officer has left the company)
• a presumption in favor of indemnification (requiring the company to shoulder the burden of proof if it wishes to refuse to indemnify)
• clear procedures as to how a director or officer applies for indemnification or advancement of expenses, who makes (for the company) the decision whether indemnification applies, and timelines for response and payment
• how disputes regarding indemnification rights are settled, rights to appeal, and allowing for legal fees (“fees on fees”) to be recovered
• how defense of claims are handled (e.g., allowing the director or officer to select his or her own legal counsel)
• payment of costs incurred for less developed situations (such as investigations) or where there is not a claim directly against the director or officer, for example when they are called as a witness
• rights to specific D&O liability insurance coverage   
• protection against future adverse amendments to the indemnification provisions in the articles of incorporation or bylaws, as changes to the bilateral indemnification agreement requires the director’s or officer’s specific consent
• that it is non-exclusive (i.e., that indemnification and advancement of expenses under provisions in the company’s articles of incorporation and bylaws is also available).

Conclusion.  Companies should assess and understand the benefits and limitations of the exculpation, indemnification and advancement of expenses provisions in their governing documents.   This review, together with director and officer liability insurance and possibly indemnification agreements, are essential elements in managing against risks of personal liability for corporate directors and officers.

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