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In an August 2007 press release, Marsh warned “the financial services sector, including insurance companies, hedge funds, banks and ratings agencies, that they may be exposed to greater directors’ and officers’ liability (D&O) and errors and omissions (E&O) liability claims in the wake of the current subprime mortgage crisis.”As more companies begin to feel the pinch of the credit crunch and investors tally up their losses, however, litigation against directors and officers of companies outside of the financial sector is likely to increase.

Moreover, even if a board’s conduct is allegedly outside the scope of exculpation, the litigation likely will settle before the plaintiff’s case proves too much and places the alleged damages outside of the company’s indemnification or D&O liability insurance policies.

The charitable nonprofit form creates unique issues of corporate governance.

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Moreover, if cases continue to settle prior to adjudication on the merits, which I suspect they will, dismissal of the litigation at the motion to dismiss or summary judgment stage may be the only means to avoid payments under D&O policies.

If a board authorized investments in mortgage-backed securities, collateralized debt obligations, collateralized loan obligations or similar investment vehicles without understanding the structure of, or risk inherent in, those vehicles, has the board committed a conscious disregard of its known duties?

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