One of the most significant recent developments in the commercial litigation arena has been the recent rise of litigation funding. Though it remains controversial in some quarters, litigation funding is, in the words of a recent Above the Law post, “here to stay.” One reason that litigation funding is likely to remain an important factor in the litigation environment is that litigation funding in general has proven to be a lucrative investment, as I have previously noted (here). But while litigation funding in general may be profitable, that does not mean that investment success is assured. Indeed, while there are several very successful litigation funding firms, other firms have stumbled. Continue Reading
Following the Third Circuit’s August 2015 decision in which the appellate court affirmed the Federal Trade Commission’s authority to pursue an enforcement action against Wyndham Worldwide alleging that the company failed to make reasonable efforts to protect consumers’ private information, there have been concerns that other companies experiencing data breaches could be the target of enforcement actions by the FTC and other regulatory agencies. However, a recent decision by the FTC’s Chief Administrative Law Judge has set a high bar for the degree and kind of consumer harm that must be shown in order for the FTC to be able to pursue a data breach-related claim under Section 5 of the FTC Act.
In a 92-page November 13, 2015 opinion (here), FTC Chief Administrative Law Judge D. Michael Chappell dismissed the FTC’s complaint against LabMD, Inc., based on his holding that the FTC had failed to meet its burden to show that the company’s data security practices has caused or were likely to cause harm to consumers. As discussed below, the agency intends to appeal the ALJ’s ruling, but as it stands the ruling could provide companies that are the target of an FTC data breach-related enforcement action a basis upon which to try to challenge the sufficiency of the FTC’s allegations. Continue Reading
Among the perennial coverage issues arising under D&O and E&O policies are questions involving timely notice of claim. Recently, the notice provisions many professional liability insurance policies relating to notice timeliness have been revised to lengthen the time period within which notice must be given and even specifying that if in order to assert late notice of claim, an insurer must demonstrate that it has been prejudiced by the late provision of notice. In the following guest post, industry veteran and well-known insurer-side coverage attorney Joseph P. Monteleone of the Rivkin Radler law firm takes a look at these policy wording changes as well as the case law context within which these changes have arisen.
I would like to thank Joe for his willingness to publish his article on this blog. I welcome guest post submissions from responsible authors on topics of interest to readers of this site. Please contact me directly if you are interested in submitting a guest blog post. Here is Joe’s guest post.
One of the hallmarks of a claims-made and reported policy historically has been the two-pronged requirement that (1) the claim against the insured must be first made during the policy period, and (2) the claim had to be reported to the insurer, if not strictly within the policy period, at least no later than a “bright line” cut-off date after policy expiration. These cut-off dates were generally thirty (30) or sixty (60) after policy expiration.
Contrast these with so-called pure claims-made policies, which have the first of the two-pronged component discussed above, but the reporting requirement is typically “as soon as practicable”[i], similar to reporting requirements under occurrence-triggered policies such as the Commercial General Liability (CGL) policy.
As part of the inexorable trend of policy wordings becoming ever broader for the benefit of the policyholder, notwithstanding any hardening or softening of rates for the policies, we have seen significant modifications to the policy reporting provisions.
Warren Buffett’s annual letters to Berkshire shareholders are prized alike by the company’s shareholders and by those who have no connection to the company other than an interest in what Buffett may have to say. Anyone who has followed Buffett’s letters over the years knows that the Berkshire chairman has certain themes to which he returns over and over again. Anyone who wants to assemble a comprehensive view on one of these recurring themes can of course sort through all of the shareholder letters that Buffett has written over the year, from the collection of the letters on the Berkshire website. However, the fact is that sorting through 38 years of letters would be a daunting and difficult task.
Fortunately for anyone interesting in Buffett’s writings and views, there is an excellent resource that organizes essays from over the years into a single volume organized by topic and accompanied by a detailed index. In his book, “The Essays of Warren Buffett: Lessons for Corporate America,” George Washington University Law Professor Lawrence A. Cunningham has done a truly commendable job distilling and organizing the essence of Buffett’s letter to Berkshire shareholders. In conjunction with the 50th anniversary of Berkshire Hathaway under Buffett’s leadership, Cunningham has released an updated Fourth Edition of the book (here), which incorporates selections from Buffett’s most recent shareholder letters into the anthology. Continue Reading
My European sojourn continued this week with a trip to Paris. I arrived in Paris on Monday morning, just days after the Friday night terrorist attacks. I had been unsure whether or not to come to Paris, and I wasn’t sure what I would find when I got there. Continue Reading
The advent of an SEC investigation is a serious and difficult event in the life of any organization, particularly registered-investment advisors. As a result of recent changes at the agency, an SEC investigation may be more difficult than ever for registered-investment advisors. In the following guest post, Ildiko Duckor, Sarah A. Good and Corey Harris of the Pillsbury law firm take a look at the recent changes at the agency, and provide a list of dos and don’ts. A version of this article previously was published as a Pillsbury client alert.
I would like to thank Ildiko, Sarah and Corey for their willingness to publish their guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to readers of this blog. Please contact me directly if you would like to submit a guest post. Here is Ildiko, Sarah and Corey’s guest post.
The regulatory environment for SEC-registered advisers has become more complex as the result of a more aggressive and interconnected Securities and Exchange Commission (SEC). The connecting hub within the SEC is the Office of Compliance Inspection and Examination (OCIE), which serves as the “eyes and ears” of the SEC. The OCIE often is the first line of contact between an investment adviser and a potential referral to the SEC Enforcement Division’s Asset Management Unit (AMU), which is devoted exclusively to investigations involving investment advisers, investment companies, hedge funds and private equity funds.
The OCIE’s three main areas of focus for their 2015 exam priorities are (i) protecting retail investors, (ii) issues related to market-wide risks, and (iii) data analysis as a tool to identify registrants engaging in illegal activity.
Overlapping with the OCIE’s frontline examination role is the Compliance Program Initiative, which began in 2013 by sanctioning three investment advisers for ignoring problems within their compliance programs. The Compliance Program Initiative is designed to address repeated compliance failures that may lead to bigger problems. As such, any issues raised in a deficiency letter resulting from an examination are ripe for follow-up as the starting point of a subsequent examination. In the current regulatory environment—where violations of compliance policies and procedures can serve as the basis of enforcement actions—investment advisers and their compliance professionals need to pay close attention to the implementation, follow-through and updating of every aspect of their compliance program. Continue Reading
As I have noted in recent posts, several members of the Delaware Court of Chancery have made it clear that they are increasingly skeptical of disclosure-only settlements in merger objection lawsuits. It now appears that the Chancery Court rulings are starting to have an impact at the supply end of the food chain; according to a recent analysis by The Chancery Daily, the number of new merger objection lawsuit filings in the Delaware Chancery Court has begun to drop in response the Chancery Court’s rulings. The publication reported what it observed to be during October and November 2015 a “pronounced decline in the number of class action complaints filed compared to prior months in the year 2015.” The Chancery Daily’s November 13, 2015 blog post discussing its analysis can be found here. Alison Frankel’s November 16, 2015 post on her On the Case blog discussing the recent filing trends can be found here. Continue Reading
The number of whistleblower reports to the SEC’s Office of the Whistleblower under the Dodd-Frank Act’s whistleblower provisions continues to increase, according to the agency’s latest annual report. The November 16, 2015 report, which is entitled “The 2015 Annual Report to Congress: Dodd-Frank Whistleblower Program,” and which can be found here, reports that the number of whistleblower reports to the agency has increased every year since the program was instituted in 2011. The agency has also made over $54 million in whistleblower awards since the program’s inception, including more than $37 million to eight whistleblowers in fiscal year 2015 alone. Continue Reading
The D&O Diary is on assignment in Europe this week, with the first stop over the weekend in London. When I arrived at my hotel on Saturday morning I learned for the first time about the Friday night terrorist attacks in Paris, which had taken place while I was in transit. Since the primary purpose for my trip was to attend meetings this week in Paris (to which I planned to travel next after leaving London), these developments certainly put my trip plans in an entirely different and unsettling light. I spent most of my weekend in London trying to decide whether I should travel on to Paris from London or just return home after the weekend. Continue Reading
The D&O Diary was on assignment last week at the annual PLUS International Conference at the Hilton Anatole Hotel (pictured left) in Dallas, Texas. As always, the PLUS Conference involved a busy mix of meetings and receptions, and was highlighted by a surprisingly entertaining keynote address by former President George W. Bush. Continue Reading