The scope of corporate responsibilities facing directors and officers has never been so broad. No matter how well-intentioned, every corporate decision carries the risk that a disgruntled shareholder or creditor may later claim the board’s action breached the duties of care, good faith or loyalty.
And we have seen them all – allegations of fraud, corporate waste, self-dealing, breach of fiduciary duty, over-compensation and a failure to consider all of the material facts. For-profit boards & companies face a challenging landscape in today’s difficult economic climate. It is a “dog-eat-dog” world and even the perception that a director or officer’s decision may have been affected by some perceived conflict-of-interest or with a corrupt motive too often results in a “file now, ask later” scenario.
We have defended all manner of D&O claims, as preferred counsel to several of the largest D&O carriers in the country, but also as corporate counsel to closely-held and family-run corporations when the board finds itself irretrievably divided. We understand the rules of corporate governance, the intricacies of the business judgment rule and the special circumstances that arise upon insolvency.
We have defended state and local public entities, public agencies and officials in federal and state court and before administrative agencies. The scope of the claims we have defended is as far-reaching as the governmental entities we serve, but has included civil rights, First Amendment, defamation and false light claims, ineffective-assistance-of-counsel claims against defense counsel and suits against elected officials, officers and judges.
Homeowners & Condominium Associations appreciate our approach to resolving their claims; in addition to defending more traditional claims for breach of fiduciary duty and fraud under an association’s D&O policy at the behest of several national D&O carriers, we also serve as general counsel to a number of associations – both big and small – in Northern Illinois. In this capacity, we provide advice and counseling to associations on issues that arise in day-to-day operations, negotiate contracts with vendors, advise the association on disputes internal to the board or with unit owners with a goal of litigation-avoidance, defend mortgage foreclosure actions (including the counter-prosecution of claims to foreclose liens for unpaid assessments), and prosecute actions for possession under Illinois’ Forcible Entry and Detainer Act.
Not-For-Profit Boards & Entities face unique challenges in government oversight, internal governance, employee relations and compensation. We have defended charitable organizations, trade associations, social clubs, condominium and homeowners associations. The nature of the disputes enveloping non-profits are as unique as the individualized interests they serve. We have defended negligence and wrongful death claims on behalf of a suicide hotline, and the Boy Scouts of America following its refusal to award the rank of Eagle to a scout who failed to meet the requirements before his eighteenth birthday (the cut-off date).
Whatever the dispute, our goal is the same – early resolution with an eye toward cutting off a claimant’s damages, bringing certainty to an otherwise unpredictable situation and cauterizing the expenditure of defense fees and costs. But we also recognize, particularly when it comes to our non-profit clients, that certain causes warrant a full fight. When a board has justifiable concerns with an early resolution strategy, whether it’s the risk of setting a bad precedent or subjecting it to bad press, we evaluate those concerns and our defenses early, stick to a carefully-crafted and agreed-upon plan and fight the claim.