Manager Liability – Directors’ and Officers’ Liability and D&O Insurance

Claims against management and supervisory board members have been gaining importance for years. We understand these scenarios from all relevant perspectives and, based on our long-standing experience, provide optimal support. Our lawyers are sought-after advisers in directors’ and officers’ liability matters and have been involved in many of the high-profile compliance cases of recent years.

Growing Importance of Directors’ and Officers’ Liability

Increasing complexity and heightened expectations regarding lawful decision-making processes mean that potential liability of decision-makers is receiving ever greater scrutiny in damage scenarios. We provide targeted advice for every conceivable situation. Our experience covers the full spectrum: we represent companies, supervisory bodies and shareholders in enforcing claims, and we act for board members and managing directors facing liability allegations.

Prevention and Assessment

We advise clients before liability issues arise by assisting in the preparation and documentation of decisions. Careful, and where appropriate expert-supported, decision-making can help minimise liability risks.

Where potential liability is at issue, we analyse the facts and assess possible claims for damages. At this early stage, we also coordinate with D&O insurers to secure potential coverage positions – an aspect that is strategically crucial.

Advising Management

We frequently act for board members, supervisory board members and managing directors, defending them against potential liability claims both out of court and in litigation. Our clients include DAX executives as well as managing directors of mid-sized companies.

Contentious liability matters are often accompanied by the departure of the manager from the company, which typically requires asserting access rights to company information to properly assess the situation. We are intimately familiar with these processes from numerous cases and therefore proceed with precision and efficiency.

A further key issue for affected managers is safeguarding (provisional) coverage under their D&O insurance – particularly with respect to defence costs. We know the major market insurers from extensive experience and can usually establish clarity quickly. D&O insurers themselves regularly recommend us as counsel for insured persons.

Enforcement of Claims

Enforcing directors’ and officers’ liability claims on behalf of companies requires a comprehensive factual analysis and legal assessment, often in situations of significant factual and legal complexity. Before claims can be raised, certain procedural or corporate law requirements may need to be met – for example, obtaining a shareholder resolution or appointing a special auditor or special representative.

Our lawyers have extensive experience in litigating directors’ and officers’ liability claims, often in protracted proceedings. We also advise on settlements, which are typically preferable. In practice, however, settlements involving D&O insurers are often achievable only after a first-instance judgment.

D&O Insurance

D&O insurance plays a central role in liability matters. In our experience, insurers rarely settle claims outright. Instead, they generally provide defence coverage to resist asserted claims. Meaningful willingness to settle often arises only after a favourable first-instance decision.