Lawsuits filed by the Federal Deposit Insurance Corporation (FDIC) against chief executives of failed financial institutions have outpaced new filings in any period of the past three years, shows a new research study.

According to economic analyst Cornerstone Research, at least 32 suits were filed so far this year, and the rate is increasing as time passes: there were 10 lawsuits filed in the first quarter, 15 in the second quarter, and seven already filed in the third quarter.

“There is a huge outcry in Washington about why there are not more criminal convictions coming out of the financial crisis, so the government is putting more emphasis on pursuing civil cases than sentencing for bail,” says Geoffrey Fallon, a D&O educator for the Risk and Insurance Management Society (RIMS).

Nearly 490 financial institutions have failed since the onset of the economic crisis in 2007.

If the filing of new lawsuits continues at this pace, there will be 53 at the end of the year—more than double the 26 filed in 2012, and nearly 70 percent of all FDIC D&O lawsuits filed since 2010.

Only three lawsuits were resolved in 2013: United Security Bank, which settled with the FDIC for $0; Bank of Wyoming, which settled for $2.5 million; and Columbian Bank and Trust Company, which settled for $5.2 million. One of these was filed in 2013, one in 2012 and one in 2011.

The report says most bank failures occurred between the third quarters of 2009 and 2010, but because of the three-year statute of limitations for tort lawsuits and the time the FDIC needs to determine if it will file a lawsuit, 2013 has been busy: of the 32 lawsuits filed so far this year, nine were against companies that failed in 2009 and 23 were filed against ones that failed in 2010.

CEOs are the most commonly-targeted defendants in such cases, having been named in 88 percent of all filed complaints and lawsuits in 2013, followed by chief financial officers (13 percent), chief loan officers (14 percent), chief operating officers (17 percent), chief banking officers (3 percent), and chief credit officers (34 percent).

“The best way companies can protect their executives from D&O claims is to have a rigorous in-house compliance system acting as their own policeman to ensure all parties are acting as they should,” Fallon says.

The FDIC has claimed damages of $3.6 billion of the lawsuits with a specified damage amount, compared to an average damage amount of $53 million. The largest claims were found to be in California institutions (which has one of the highest rates of lawyers per capita in the U.S.), but the most D&O lawsuits have involved failed institutions in Georgia.

Claimed damages against D&O have ranged from $3 million to $600 million, and claimed damages have been most commonly filed for less than $20 million.

Though D&O claims are rising, actual FDIC seizures of financial institutions are declining: 20 institutions have been seized so far in 2013, compared to 51 in 2012.

“Financial executives work in a much more highly-regulated environment than non-financial companies; they serve several masters, including the new Dodd-Frank law,” says Fallon.

“I would say that in the next few years, financial institutions will remain in the spotlight.”

Special Reports /

Big Uptick in FDIC Suits Against Execs in 2013

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