Practice Areas & Industries: Eversheds Sutherland (US) LLP


Director & Officer Liability Return to Practice Areas & Industries

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Practice/Industry Group Overview

When directors and officers face shareholder litigation, bankruptcy adversary proceedings, investigations or government scrutiny, Sutherland helps.

In today’s turbulent economy, directors and officers may find themselves in the cross hairs of federal and state regulators, creditors and trustees in bankruptcy proceedings and angry shareholders. It may be in the form of a shareholder class action or a derivative suit. It might involve an internal investigation arising from a whistleblower allegation. Or it may be any of a number of government regulators, enforcement attorneys and prosecutors. That’s where Sutherland attorneys can help. We understand the issues at stake and the players involved, and we guide directors and officers through the many questions posed by enforcement, compliance, investigative, supervisory and litigation matters. We know what regulators look for, the risks and benefits of cooperating with authorities and under what terms and the most effective defense strategies. We are also proactive with clients to minimize the possibility of future liability issues, and assess insurance coverage that may be available to respond to future risk scenarios.

We have particular depth representing directors and officers of public and private companies, public hospitals, accounting firms, brokerage firms and banks and financial institutions in investigations by the Department of Justice (DOJ), Securities Exchange Commission (SEC), Federal Deposit Insurance Corporation (FDIC), Financial Industry Regulatory Authority (FINRA), Commodities Future Trading Association (CFTC) and other federal and state regulators. We also advise directors and officers facing whistleblower investigations, financial reporting issues, securities and financial fraud claims, employment investigations, shareholder derivative suits and Foreign Corrupt Practices Act (FCPA) issues.

The core strength of our practice is our ability, experience and willingness to litigate when reasonable solutions are not possible. We provide clients with a seamless transition from investigation to defense in state and federal courts and in administrative proceedings. Our deep industry knowledge and regulatory experience enable us to understand the dynamics within each agency and allow us to devise the strategies that lead to an efficient resolution.

Why Sutherland
Regulatory and corporate background.
Our team includes former senior attorneys for the SEC, FINRA and DOJ, as well as a former general counsel and executive vice president of a bank. We have a deep bench of litigators versed in accounting issues. This well-rounded perspective allows us to understand and address the issues directors and officers face in the most difficult circumstances.

Interdisciplinary team. We bring together attorneys from Sutherland’s transactional, litigation and financial services practices to address every potential issue and explore every option.

Insight. We know what activities will trigger the interest of regulators. We have particular strength recognizing issues in the banking, financial services, accounting and securities industry realm, including the use of derivatives to hedge financial risks and the fair value of assets such as collateralized mortgage obligations, collateralized loan obligations and other asset-backed debt instruments.

Industry relationships. We work with all the players to find a successful, minimally disruptive outcome for our clients.

Trial experience. While we can negotiate and mediate liability issues, our attorneys also have significant courtroom experience. We won’t hesitate to litigate on behalf of our clients when that is their best option. Our litigators are experienced in director and officer, securities fraud, financial and bankruptcy-related litigation.

Thought leaders. Our lawyers frequently write and speak on topics regarding director and officer liability.

Proactive advice. Along with counseling clients who already face liability issues, we work with directors and officers to ensure they do not become ensnared in regulatory and enforcement activity.

Nuts and Bolts
Sutherland provides comprehensive services to clients facing director and officer liability, including:

  • Director and officer litigation
  • Federal regulatory investigations and litigation
    • Department of Justice
    • Securities and Exchange Commission
    • Federal Deposit Insurance Corporation
    • Federal Reserve Board
    • FINRA
    • CFTC
    • Public Accounting Oversight Standards Board
    • Consumer Financial Protection Bureau (CFPB)
    • The Office of the Comptroller of the Currency (OCC)
    • The Office of Thrift Supervision (OTS)
    • The National Credit Union Administration (NCUA)
  • Banking and financial institution investigations and actions
    • We advise directors and officers about grounds for liability, types and amounts of claims that can be brought by regulators and how to defend and defeat those allegations; the handling of shareholder and derivative claims; securities fraud litigation; bankruptcy-related litigation and indemnification.

Take Action
Sutherland’s dynamic and experienced director and officer practice maintains a particular focus on the banking, financial services and securities industry sectors.

Selected Experience

Sutherland defends numerous directors and officers of troubled and failed financial institutions.
Sutherland is representing the top executives of a large commercial bank who have been accused of improper revenue recognition and inadequate loan loss reserves.

Sutherland counsels Fortune 100 CFO in disclosure case.
Sutherland represents a Fortune 100 company’s CFO who has been charged by the SEC and the DOJ with improper revenue recognition and inadequate disclosures.

Sutherland defends external director in bankruptcy adversary proceeding.
We represented the external director of a failed private company in bankruptcy adversary proceedings alleging breach of fiduciary duties and negligence against a number of former officers and directors of the debtor.