Chapter 1 FIDUCIARY DUTIES OF DIRECTORS
1.01 Introduction
1.02 Common Law Breach of Fiduciary Duty
1.03 Statutory Bases for Liability
Appendix 1-1 Federal Home Loan Bank Board—Accountability of Directors and Officers; Policy Statement
Appendix 1-2 The Director's Guide: The Role and Responsibilities of a Savings Institution Director
Appendix 1-3 FDIC Policy Statement
Chapter 2 LIABILITIES OF BANK AND THRIFT COUNSEL
2.01 Introduction
2.02 Malpractice
2.03 Aiding and Abetting Breach of Fiduciary Duty
2.04 Fraud
2.05 Attorney-Director
2.06 Theories Based on Breaches of State Attorney Conduct Rules
2.07 Liability Based on Breaches of the SEC's Reporting Requirements
2.08 Actual and Constructive Knowledge
2.09 Scope-of-Representation Issues
2.10 Proximate Cause
2.11 Affirmative Defenses
2.12 Damages
Appendix 2-1 Federal Deposit Insurance Corporation, 12 C.F.R. Part 366 Minimum Standards of Integrity and Fitness for an FDIC Contractor
Appendix 2-2 ABA Formal Opinion 98-410: Lawyer Serving as Director of Client Corporation
Chapter 3 ADMINISTRATIVE ENFORCEMENT
3.01 Introduction and History
3.02 Definitions
3.03 Civil Money Penalties
3.04 Cease and Desist Orders
3.05 Removal and Prohibition/Suspension Orders
3.06 Other Administrative Tools to Influence the Composition of the Board and Management
3.07 Administrative Hearings
Appendix 3-1 The Federal Reserve Board: Conduct of Administrative Hearings
Appendix 3-2 FDIC: Conduct of Administrative Hearings
Appendix 3-3 OCC: Conduct of Administrative Hearings
Appendix 3-4 Former OTS: Conduct of Administrative Hearings [Recodified, Without Substantive Change, at 12 C.F.R. Part 109 (Federal Savings Associations), and at 12 C.F.R. Part 308 (State Savings Associations)
Appendix 3-5 NCUA: Conduct of Administrative Hearings
Appendix 3-6 Joint Statement on Enforcement of Bank Secrecy Act/Anti-Money Laundering Requirements
Appendix 3-7 Report on Enforcement Actions and Professional Liability Claims
Chapter 4 DIRECTORS' AND OFFICERS' INSURANCE
4.01 Introduction
4.02 Directors' and Officers' Liability Insurance: A Definition
4.03 D&O Insurance: Liability Versus Indemnity
4.04 D&O Insurance Distinguished from Fidelity Bonds
4.05 Typical Policies
4.06 General Rules of Construction
4.07 Coverage
4.08 Standard Exclusions
4.09 Recently Developed Exclusions
4.10 Making a Claim
4.11 Reservation of Rights
4.12 Advancement of Attorneys' Fees and Costs of Litigation
4.13 Cooperation
4.14 Settlements
4.15 Suits to Establish Coverage
4.16 Rescission
4.17 Cancellation
4.18 Subrogation of Insurer
4.19 Priority of FDIC to D&O Proceeds
Appendix 4-1 1991 CNA Directors and Officers Financial Institution Reimbursement Policy
Appendix 4-2 1988 National Union Fire Insurance Company of Pittsburgh, Pa. Directors and Officers Insurance and Company Reimbursement Policy
Appendix 4-3 1986 Aetna Designated Insured Persons and Company Reimbursement Policy
Appendix 4-4 1988 Lloyd's of London Directors and Officers and Company Reimbursement Indemnity Policy
Appendix 4-5 1992 Directors and Officers Liability and Company Reimbursement Policy
Appendix 4-6 1993 CNA Directors and Officers Liability Policy
Appendix 4-7 2000 AIG Executive and Organization Liability Insurance Policy
Appendix 4-8 1995 AIG Directors, Officers and Corporate Liability Insurance Policy
Appendix 4-9 2005 Chubb Financial Institution Portfolio: Executive Liability and Entity Securities Liability Coverage
Appendix 4-10 2017 Travelers Directors, Officers, and Organization Liability Coverage for Financial Institutions
Chapter 5 FIDELITY BOND CLAIMS
5.01 Introduction and Overview
5.02 Definition and Development of the Financial Institution Bond
5.03 Overview of Standard Bond Form 24
5.04 FIB Definitions
5.05 Exclusions
5.06 Who Is Insured: Changes in Control and Other Considerations
5.07 Financial Considerations
5.08 Causation
5.09 Discovery
5.10 Notice of Loss
5.11 Cooperation
5.12 Misrepresentation and Its Effects
5.13 Termination and Cancellation
5.14 Subrogation
5.15 Coverage of Third-Party Claims
5.16 Insuring Agreement (A): Dishonesty
5.17 Other Coverages Provided Under Standard Form 24
Appendix 5-1 Financial Institution Bond
Appendix 5-2 Insuring Agreement: Progressive Insurance Company (Form No. TSB5018e, 01/04)
Appendix 5-3 Standard Form No. 24 (2011)
Appendix 5-4 From American Bankers' Association Monograph, Bank Insurance Survey (1988)
Appendix 5-5 Distribution of Countrywide Loss Experience; Data Summaries of Fidelity Classification Experience Twelve Years (1977–1988)
Appendix 5-6 Subject Index of Riders for Financial Institution Bond, Standard Form No. 24
Appendix 5-7 Rider
Appendix 5-8 Cause of Loss Experience Statement; Combined Coverage Blanket Fidelity Bonds; All Reporting Companies—Countrywide Calendar Year 1987
Appendix 5-9 Application for a Financial Institution Bond, Standard Form No. 24 for Commercial Banks, Savings Banks and Savings and Loan Associations
Chapter 6 INDEMNITY
6.01 Overview
6.02 History
6.03 The Delaware Indemnification Statute
6.04 Federal Regulatory Limitations on Indemnification for Financial Institutions
Appendix 6-1 Indemnification Statutes on a State-by-State Basis
Appendix 6-2 Current MBCA on Indemnification
Appendix 6-3 Text of Section 145 of Title 8 of the Delaware Code
Appendix 6-4 Indemnification of National Bank and Federal Savings Association Institution-Affiliated Parties, as amended by 85 Fed. Reg. 83735 (Dec. 22, 2020) (effective April 1, 2021)
Appendix 6-5 OCC Investment Securities Letter No. 43, on the Advancement of Expenses [Superseded]
Appendix 6-6 New FDIC Statute on Indemnity That Came in 1990 Crime Control Act: 12 U.S.C. 1828(k)(5)–(6)
Appendix 6-7 Indemnification of Directors, Officers and Employees (federal savings associations)(removed, effective April 1, 2021)
Appendix 6-8 FDIC Regulations Governing Indemnification: 12 C.F.R. Part 359
Table of Cases
Index
