Director and Officer Liability in Financial Institutions: A Deskbook, with 2017 Cumulative Supplement

This treatise gives practitioners the knowledge they need to protect those in financial institutions at the forefront of liability—directors and officers—and defend them against civil, criminal, and administrative proceedings, by either governmental or private parties.



Meet The Author


A comprehensive guide to civil, criminal, and administrative liability in the director and officer liability field

Financial institutions are at the center of much of the white collar litigation, involving a number of prominent areas including liability for failing banks, thrifts, and other financial institutions; Bank Secrecy Act and other anti-money laundering activities; consumer privacy; and consumer protection against unfair practices by financial institutions. Bloomberg BNA’s Director and Officer Liability in Financial Institutions: A Deskbook is designed to protect those at the forefront of liability, directors and officers, and to offer the practitioner a guide in defending them against civil, criminal, and administrative proceedings by either governmental or private parties. The Deskbook is the only reference that covers all three major types of liability.

This new guide provides an understanding of the liability that may arise in several areas, exploring what lawsuits have been filed seeking damages; whether criminal exposure exists; what criminal statutory provisions may be triggered by conduct at issue; and whether administrative agencies are likely to bring charges, triggering yet another area of liability.

The Deskbook explores recent developments that have created today’s climate of increased regulation and enforcement and analyzes criminal, civil, and administrative cases relating to the existing financial crisis, including the mortgage-backed security litigation. In addition, it discusses areas unrelated to the financial crisis, including how each of the following areas impact directors and officers in the discharge of their duties:

  • The new Consumer Financial Protection Bureau (CFPB) and its role in policing unfair, deceptive, and abusive practices violations
  • The Safeguards Policies issued by the Federal Trade Commission, and likely agency initiatives directed at directors and officers of financial institutions regarding privacy policies
  • Enforcement related to money laundering, including having appropriate policies in place directed to anti-money laundering activities, as well as the filing of suspicious activity reports
Director and Officer Liability in Financial Institutions: A Deskbook is an invaluable resource for readers hoping to understand not only what the courts have ruled in recent liability instances, but also the likelihood that agencies will bring a case. The Deskbook provides a particular focus on affirmative defenses and themes that have proven useful in defending against liability charges. This reference offers practitioner’s tips in defending cases and includes useful forms, such as an Indemnification Agreement and a Protective Order, an index and case table, and a table of state laws dealing with duties and responsibilities of directors and officers.

The 2017 Cumulative Supplement discusses:

  • The U.S. Supreme Court's granting of cert in Kokesh v. SEC, regarding disgorgement in an SEC enforcement action and the statute of limitations
  • The constitutionality of the Consumer Financial Protection Bureau in PHH Corp. v CFPB
  • FinCEN enforcement action based on insufficient empowerment of Bank Secrecy Act Officers related to anti-money laundering programs
  • Reckless conduct and willfulness under the Fair Credit Reporting Act
  • The requirement to form a compliance committee in the settlement agreement of In the Matter of Wells Fargo Bank
  • Delaware court cases considering whether the failure to supervise is actionable against directors



Bloomberg BNA authors and editors are practicing professionals with insider perspectives and real-life experience. Learn more about this book’s authors and editors.
Samuel Rosenthal is a partner of Nelson Mullins Riley & Scarborough in the Washington, D.C. and New York offices. He is a member of the White Collar Defense & Government Investigations Team. He has represented individuals and entities involved in a range of white collar criminal matters, regulatory issues, and federal civil and administrative proceedings. He also represents clients in diverse industries concerning antitrust matters, including both civil and criminal proceedings. In addition to representing various private individuals and entities, Mr. Rosenthal has represented governmental entities, including the Government National Mortgage Association (GNMA), as well as the U.S. Senate while serving as an associate independent counsel. He is a former chief of the Department of Justice Appellate Section of the Criminal Division.


View full tables of contents and read the book’s preface or introduction.


Read what others have to say about this Bloomberg BNA book.

Every bank director, officer, auditor, accountant, and consultant to the bank who might conceivably find themselves facing liability charges would be well advised to keep this essential book on their desk. The exposure is serious enough to warrant self-education, rather than just relying on formal legal advice. 

Nahum Goldmann, President, ARRAY Development, Ottawa, Canada

ABA Banking Journal, February 7, 2014

In short, Rosenthal’s book is a comprehensive, practical and helpful guide for financial institution directors and officers written by a knowledgeable and experienced practitioner. For anyone called upon to address liability and enforcement issues, having this book at hand will be like having a hotline to a skilled and trusted advisor. This book is an essential resource that everyone involved in D&O liability issues should have on their desks.

Kevin M. LaCroix, Esq.

The D&O Diary

Director and Officer Liability in Financial Institutions: A Deskbook is an insightful and thorough analysis of the challenging issues that directors and officers face in this critical industry. Because financial institutions are subject to private lawsuits as well as investigation by a myriad of state and federal agencies, anyone working in this industry, including accountants, auditors, and attorneys will find this work to be an invaluable resource. 

Jonathan S. Feld, Partner, Dykema Gossett PLLC, Chicago, IL

Mr. Rosenthal has captured the essence of the bank and financial institutional challenges of the current regulatory cycle. What happened to lending as the primary focus of risk? As we can expect more regulation and a greater chance of legal actions, the Deskbook deals with a number of timely issues, such as additional “risk” elements that cannot be easily managed. Rosenthal presents a balanced approach in discussing these growing kinds of risk. 

H. Buchanan Howard, CEO, Independent Community Banks, Corporate Finance for the Industry, Dallas, TX

Sam Rosenthal’s timely and extensive treatise is an excellent resource for anyone tasked with preventing or litigating civil, criminal, and regulatory claims against financial services executives. 

Hank Asbill, Partner, Jones Day, Washington, DC

My long time law partner and friend Sam Rosenthal’s new book is a remarkable achievement and an indispensable tool for any lawyer involved in financial services, corporate litigation, counseling, compliance and risk management. His concise, readable, authoritative volume offers historical, statutory, and practical analysis of stunning breadth and depth. If I were teaching or studying the subject, I would want to have Rosenthal’s book on my desk, because I expect that judges, regulators and lawyers everywhere will rely on it. 

Nicholas W. Allard, Joseph Crea Dean and Professor of Law, Brooklyn Law School, Brooklyn, NY

Money transmitters always seem to be in the crosshairs of governmental enforcement efforts. We are sometimes treated as allies but, more often, we are seen as targets. There has been a spate of prosecutions and enforcement actions directed in particular at money transmitters, located both here and on foreign soil. Mr. Rosenthal has represented money transmitters in a variety of criminal and administrative matters and has regularly shared his keen insights into this important area at NMTA conferences. Director and Officer Liability in Financial Institutions: A Deskbook is the most comprehensive work I have ever seen dealing with directors and officers who work in financial institutions. It is a resource that should be of great benefit to anyone who works at or advises financial institutions in this complex area. 

David Landsman, Executive Director, National Money Transmitters Association, Great Neck, NY

Director and Officer Liability in Financial Institutions is an essential tool in navigating the complex statutory and regulatory environment that confronts financial executives, regulators, attorneys, auditors, accountants, inspectors general, and prosecutors. It provides a clear, cogent chart to avoid the rocks and shoals that confront today’s directors and officers. 

Hon. William H. Campbell, Chief Executive Officer, Atlantic Financial Navigation, LLC, Formerly Assistant Secretary for Management and CEO, U.S. Department of Veterans Affairs, Washington, DC

Sam Rosenthal has written a comprehensive treatise for both the most experienced practitioner and those with limited experience who need to understand the fundamentals and details of the complexities of D&O practice and litigation. Business lawyers, civil litigators, white collar defense counsel, and government counsel all will find it invaluable. D&O issues are often at the core of complex parallel proceedings, and this treatise provides proper legal background, support, and guidance for the myriad of complex issues often not readily apparent to most counsel. Written by an experienced attorney who has had a distinguished career both with the U.S. DOJ and in private practice, the treatise combines in-depth detailed explanations which will be of critical use on a daily basis for anyone whose practice might touch this area of the law. 

Scott L. Fredericksen, Foley & Lardner LLP, Washington Office Managing Partner, Washington, DC

Rosenthal brings a combination of practical experience, clear thinking, and strong writing to an important subject. His book is a valuable contribution in an era when officers and board members are under increasing scrutiny. 

William Hassler, Partner, Steptoe and Johnson, Washington, DC

Director and Officer Liability in Financial Institutions: A Deskbook is indispensible for legal practitioners defending a D&O liability case and—more importantly—those seeking to avoid such cases in the first place. The Deskbook covers the waterfront, discussing civil, criminal, and administrative liability in equal measure. It is sure to become the go-to resource for lawyers involved in this burgeoning area of legal practice as well as the directors and officers they serve. 

Robert D. Luskin, Partner, Patton Boggs LLP, Washington, DC