The James Hardie Case - A Timely Reminder to Consider Your D&O Cover and Deeds of Indemnity, Insurance and Access

The Supreme Court decision that James Hardie directors and officers were in breach of their duties resulting in the imposition of substantial banning orders and financial penalties, coupled with the Court's decision not to exonerate them, is a timely reminder that directors and officers should periodically review their D&O Insurance and Deeds of Indemnity, Insurance & Access.

·        Does your D&O Insurance comply with the requirements of your Deeds of Indemnity, Insurance and Access? If not, which of them has to change?

·        Does your D&O insurance provide cover for legal representation at investigations and inquiries and criminal prosecution defence costs, involving ASIC, ASX, APRA or other commissions, tribunals and regulatory agencies?

·        Will you be able to retain solicitors and Counsel of your choice?

·        If ASIC launches proceedings for breach of duty - as it did against all James Hardie directors, the company secretary/general counsel and CFO, or if shareholders or others bring claims to recover losses - who will pay your civil defence costs?

·        Does the insurance cover pecuniary penalties, compensation orders, and the regulatory agency's legal costs?

·        Indemnity, Insurance & Access Deeds:
- what protection is it reasonable to expect?
- what are your rights and obligations?
- is your deed up to date and compliant with your Constitution and the   Corporations Act?