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Individual liability podcast series: Episode 4

Marsh UK’s Head of Management Liability, Beth Thurston, is joined by Chris Warren-Smith, a partner at Morgan Lewis to discuss individual liability for directors and officers.

18/01/2022 · 4 minutes read

A legitimate concern for directors and officers, individual liability is a topic of regular discussion with our D&O liability insurance clients.

In this podcast series, we explore developing areas of individual liability with distinguished legal and underwriting experts.

Defences available to non-US companies sued derivatively in US courts

In episode four, Audra Soloway and Dan Sinnreich, litigators with Paul, Weiss, Rifkind, Wharton & Garrison LLP in the US, discuss several defences available to directors of non-US companies who are sued derivatively in US courts.

Key topics

The threshold defences that directors and officers of non-US companies can use to try to get these cases dismissed from the outset, including:

  • Arguments as to who is and isn’t permitted to bring shareholder suits.
  • Arguments that a court lacks personal jurisdiction over directors and officers to make judgements with respect to them.
  • The forum non-conveniens or ‘unsuitable tribunal’ defence.

The arguments directors and officers can make that a case is simply wrong on its merits. Of course, this is always dependent upon the facts of a case, including:

  • Arguments that factual allegations fail to state a claim as a matter of law.
  • A statute of limitations defence.
  • Cases where companies have charter provisions exculpating directors from all claims except those based on fraud, bad faith, or disloyalty.
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Related episodes

To listen to the other individual liability podcast episodes, please follow the links below:

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Episode 1 – Focus areas for 2021 and beyond
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Episode 2 – An underwriter’s view
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Episode 3 – Shareholder derivative suits against non-US companies in US courts
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Episode 5 – Derivative lawsuits in US courts against non-US domiciled companies – an insurer’s point of view

About our speakers

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Audra Soloway

Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP

  • United States

A partner in Paul, Weiss' litigation department and co-chair of its securities litigation and enforcement group, Audra Soloway focuses her practice on securities litigation, corporate internal investigations, and enforcement proceedings and regulatory defence.

Audra has extensive experience representing companies and their officers and directors in shareholder class actions, derivative litigations, and individual actions, as well as arbitrations.

Audra also represents clients in investigations and enforcement proceedings brought by the Securities Exchange Commission and state securities regulators.

Dan Sinnreich

Dan Sinnreich

Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP

  • United States

Dan Sinnreich is an associate in Paul, Weiss' securities litigation and enforcement practice group.

Dan represents clients in a wide range of commercial and corporate matters, including securities class actions, mergers and acquisitions litigation, and complex contractual disputes. He also has experience representing individual and corporate clients in civil and criminal securities investigations by United States governmental agencies.

Dan has represented high-profile clients in finance, banking, information technology, and consumer goods, among other industries, in both federal and state trial and appellate courts.

Stephanie Manson

Stephanie Pestorich Manson

Head of Management Liability

  • United Kingdom

Stephanie Manson leads the management liability team in Marsh’s FINPRO Practice in London. In this role she leads a team of over 100 management liability specialists and has a broad overview of all segments of D&O, EPL, PTL, and commercial crime insurance placed in the UK. She advises boards of directors and risk managers on D&O market issues and the ever-changing legal and regulatory developments in management liability.

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