Earlier this week, a New York state court declined to second-guess an arbitrator’s decision that BDO, USA does not have to indemnify or pay the legal bills of its former CEO, Denis M. Field, in his criminal case.

As we have noted here before, the first battle in a legal dispute between a company and its former executive is often over whether the dispute will be decided by a judge (and, ultimately, a jury) or a private arbitrator. Field v. BDO underscores why the stakes for that battle are so high: if you don’t like the arbitrator’s decision, you almost certainly will be stuck with it. That’s because the standard that courts apply in reviewing arbitrators’ decisions – even decisions about what the law requires – is a very forgiving standard. By contrast, the standard that appellate courts apply in reviewing trial judges’ decisions is less forgiving, which means that losers in the courts have a better shot at reversing decisions they don’t like than losers in arbitration.

• Arbitration
• Arbitration and ADR
• Indemnification and Advancement
• The Basics

The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) required every public company to disclose its incentive-based compensation and to adopt a policy to recover from current and former executives, in the event of a restatement, any such compensation that would not have been awarded under the restated financial statements.  As a result of the Act, many public companies in America have adopted new compensation “clawback” policies, even though the SEC has yet to promulgate regulations as required by the statute and there is no effective date for implementing these requirements.

• D&O
• Dodd-Frank Act
• Executive Compensation
• Indemnification and Advancement

From the script for It’s A Wonderful Life (1946):

                        GOWER

                        Hope you enjoy it.

               George suddenly sees the old cigar lighter on the counter.

               He closes his eyes and makes a wish.

                                    GEORGE

                        Oh... Oh. Wish I had a million

                        dollars.

               As he snaps the lighter the flame springs up.

                                    GEORGE

                        Hot dog!

Can George’s wish for a million dollars (or more) actually be granted, when he and Uncle Billy may need it the most? 

• D&O
• Indemnification and Advancement
• Insurance

“Where’s that money, you silly, stupid old fool? Where's that money? Do you realize what this means? It means bankruptcy and scandal and prison! That’s what it means! One of us is going to jail... well, it’s not gonna be me!”

Who doesn’t remember those words from It’s A Wonderful Life, Frank Capra’s classic 1946 movie that gives small-town building-and-loan president George Bailey (Jimmy Stewart) the chance to see what the world would have been like if he had never been born.  Throw in an angel trying to earn his wings and great performances by Lionel Barrymore and Donna Reed, soak it in so much populism J. Edgar Hoover called it communist, and you have a wonderful holiday tradition (despite the movie’s unique history in copyright law). 

Anyone who has seen this movie remembers the ending.  After Bailey’s forgetful Uncle Billy (Thomas Mitchell) loses an $8,000 bank deposit, Bailey is threatened with arrest and his small building-and-loan is out of cash and facing collapse (their search for the missing money leads George to say the lines at the top of this piece – and for an explanation of why a building-and-loan needed to deposit its money in the bank in the first place, see here).  George’s goodwill with his customers and friends, however, leads them all to answer his wife’s call for a ground-up bailout of the bank.  Impressed, the bank examiner even puts a few of his own dollars into the bailout fund, and the sheriff rips up the warrant that Old Man Potter had sworn out for his arrest. 

Over the years, of course, there have been some other suggested endings – including this one from Saturday Night Live. 

I’d like to hypothesize another alternative ending, and use it to answer some questions that executives should consider.  Even if they don’t run their business using strings tied on their fingers. 

• Indemnification and Advancement

We previewed this question on Monday, in our first of three posts (see here, too) about the lawsuit recently filed by former Goldman Sachs vice president Sergey Aleynikov, who beat back a federal prosecution and is now fighting state criminal charges for allegedly stealing the investment bank’s "secret sauce" computer code. Aleynikov seeks a court order directing the investment bank to not only indemnify him for the attorneys’ fees that he incurred in the now-concluded federal case (the subject of Monday’s post), but also advance his attorneys’ fees as the ongoing state case (the subject of today’s post) proceeds.

Indemnification and advancement are similar but distinct concepts. They both involve a company paying (or reimbursing) the legal fees of a current or former officer or director pursuant to a state law, a company bylaw or a contract, but they differ with respect to the timing of payments and the conditions that must be met before payment begins.

• D&O
• Indemnification and Advancement

My colleague Ellen Marcus has written a great piece about Sergey Aleynikov, a vice president and computer programmer at Goldman Sachs who allegedly stole its proprietary computer code as he was heading out the door to work at a competitor.  Aleynikov was indicted and convicted for breaking Federal law when he did so – but a Federal appellate court overturned his conviction.  Now, though, he’s about to face New York State charges for the same alleged theft.  Aleynikov has sued Goldman Sachs, arguing the investment bank has an obligation to reimburse him for the legal fees he’s already incurred (indemnification) and pay his new legal bills as he fights the state charges (advancement).    

Ellen noted in her piece that the Aleynikov story “illustrates key concepts about indemnification and advancement.”  There is, though, another piece of this puzzle that the Aleynikov matter also illustrates.    

• Indemnification and Advancement
• Insurance

That’s the question presented by a recent lawsuit filed by Sergei Aleynikov, a computer programmer who was a Vice President at Goldman Sachs responsible for code relating to Goldman’s high frequency trading business (more on “HFT” here) before he left to work for a hedge fund – allegedly bringing Goldman’s “secret sauce” code with him.  We’ve observed before that contractual rights to indemnification can sometimes lead to head-scratching results, but, depending on the outcome, this case may take the cake.  Plus, it nicely illustrates key concepts about indemnification (our focus today) and advancement (our focus later this week).

• D&O
• Indemnification and Advancement
• Trade Secrets