The D&O Diary

The D&O Diary

A PERIODIC JOURNAL CONTAINING ITEMS OF INTEREST FROM THE WORLD OF DIRECTORS & OFFICERS LIABILITY, WITH OCCASIONAL COMMENTARY

Another Accounting Scandal-Related Securities Suit

Posted in Securities Litigation

arcp_logoEarlier this week I wrote about the accounting scandal that has hit the UK-based grocer, Tesco, and the securities class action lawsuit against the company that followed in its wake. Now another company has reported accounting irregularities – and the company involved has also been hit with a securities class action lawsuit.

 

On October 29, 2014, before the markets opened, real estate investment trust American Realty Capital Properties issued a press release (here) in which it disclosed the existence of an accounting error and subsequent cover-up relating to its financial statements for this year’s first two quarters. The company announced that adjusted funds from operations had been overstated for the first quarter. (“Adjusted funds from operations” is a key metric of a REIT’s performance and cash flow.) The press release stated that the “error was identified but intentionally not corrected,” and that other adjusted funds from operations and financial statement errors “were intentionally made,” resulting in an overstatement of adjusted funds from operations and understatement of net loss for first three and six months of the year. In the press release, the company also said that its audit committee is investigating the company’s 2013 financial statements as well.

 

The company further announced that the company’s audit committee’s discovery of these accounting errors had forced the resignation of Brian Block, the company’s CFO, and Lisa McAlister, the company’s chief accounting officer.  

 

An October 30, 2014 Wall Street Journal article about these developments (here) reported that the SEC intends “to launch an inquiry into the accounting irregularities” at the company. According to the Journal article the total amount by which the adjusted funds from operations was overstated in the first quarter was $12 million, or 8.8%, and for the second quarter was $10.9 million, or 5.6%. The Journal article also quotes a statement from the company’s CEO that the audit committee began its investigation of the company’s accounting in September after “an employee altered the company’s audit committee about the irregularities.”

 

When I read the Journal article, I wondered how long it would be before plaintiffs’ lawyers filed a securities class action based on these developments at the company. I didn’t have to wait long to find out the answer.

 

Within a few hours, on October 30, 2014, plaintiffs’ lawyers filed a securities class action lawsuit in the Southern District of New York against the company. Block, and McAlister. A copy of the complaint in the action can be found here. The complaint relies heavily on the company’s October 29 press release and also cites the Journal article cited above. The complaint also relies heavily on the fact that the company released its now withdrawn first quarter financial results on May 8, 2014, just days before the company’s May 28, 2014 secondary offering, in which the company raised net proceeds of approximately $1.59 billion.  The plaintiff’s lawyers October 30, 2014 press release about the complaint can be found here.

 

Another sharholder filed a second complaint yesterday, as well, The second complaint, which can be found here, names deendants the company’s founder and its CEO as wel as Block and McAlister.

 

It is interesting to note that in this case, as was also the case with Tesco, the account problems first came to light as a result of an internal whistleblower. As I also noted with respect to Tesco, it is interesting that the whistleblower chose to report the concerns internally rather than reporting the issue to the SEC and potentially lining up a whistleblower bounty payment.

 

In any event, this new  lawsuit along with the one filed against Tesco late last week represent the latest examples of a something that I think we will be seeing a lot more of — that is, securities class action suits being filed after a whistleblower’s revelation of accounting or other improprieties. As I noted in an earlier post (here), particularly in light of the incentives that the Dodd-Frank whistleblower bounty provides, we will likely see many more securities suits following after whistleblower reports.

 

One final thought has to do with larger patterns in securities class action lawsuit filings. The ebb and flow of securities class action lawsuit filings is the source of a great deal of discussion as commentators (including even this blog) attempt to explain what may be driving a reported increase or decrease in the number of securities class action lawsuit filings. One thing is for sure about the number of lawsuits, if more companies are reporting accounting miscues, there will be more lawsuits. While it is far too early based solely on this case and the Tesco case to proclaim that there has been an increase in the number of companies reporting accounting problems leading to lawsuits, it is nevertheless interesting  to note that these two high-profile accounting-related suits have arisen in quick succession.

 

The problems at the two companies are obviously entirely unrelated, but if there were to be more companies reporting accounting issues (perhaps as a result of increased whistleblower activity), it could certainly lead to an accompanying upsurge in securities suit filings.  

Three Astonishing Things

Posted in Blogging

drc2Here at The D&O Diary we read everything so you don’t have to. It was in this spirit that we read the article on page C-3 of yesterday’s Wall Street Journal that in the print version was entitled “Congo Opening Its Doors to Agribusiness” (here) and that contained the single most astonishing sentence I have ever read in my entire life.

 

The article states: “The Democratic Republic of Congo plans to lease farmland covering an area larger than France in an attempt to attract capital and technology capable of boosting jobs and food productivity in one of the world’s poorest countries.”

 

Larger than France? What? What in the world are we talking about here?

 

Let’s put this in perspective — the next sentence in the article says “Congo may lease as much as 650,000 square kilometers (247,000 square miles) or more than one quarter of the central African nation.”  For those Americans that have never traveled around France, let me use a point of comparison that may be more meaningful — 247,000 square miles is an area only slightly smaller than the state of Texas.

 

And because I know that even this comparison still doesn’t mean anything to people on the East Coast of the United States (who think it is a long way from Manhattan to Connecticut), let me add further than we are talking about a geographic area larger than the combined size of the states of New York, Pennsylvania, Ohio, Michigan and Virginia, with a lot left over. We are talking about a massive amount of real estate.

 

How can they possibly have a slug of arable farm land larger than the geographically largest country in Europe that they (and in this instance who really is “they”) can just lease out? Doesn’t it seem likely that if there is farmland of any value that someone is already farming it? Might not the current farmers object to, say, for example, the Chinese, coming in and agribusinessing their farmland? As I said before — what?

 

While contemplating this, you will want to stop everything you are doing and watch the new video from the group OK Go. Many readers may be familiar with the group’s prior videos including their iconic treadmill video. With this new video the group has outdone themselves. Watch this video and be prepared for things to get way more complicated and astonishing than you think at the beginning that they could possibly be.

 

This video won’t answer any questions about farmland in the Congo, but the choreography will blow you away. While you are sitting gape-mouthed over the precision of the people movement, use of props, and optical illusions, take a moment to contemplate the camera work. The video was filmed as single, continuously shot long-take that I will not spoil for you by describing how it finishes. (You must watch it ALL THE WAY TO THE END.)  I haven’t the slightest idea how the filming of this video was physically possible. The song itself is light and inconsequential. The video, however, is astounding.  

 

The third astonishing thing: Madison Bumgarner. To pitch five shutout innings on two days rest in the seventh game of the World Series? Astonishing. Is there anything better in sports than the seventh game of the World Series, a one-run lead, bottom of the ninth, two outs, runner on third base, and two strikes on the batter? Amazing. By the way, the poor guy from Chevrolet that gave Bumgarner the MVP award probably will calm down, say, in a month or two. With therapy.

O.K., So Here’s the First Ebola Outbreak-Related D&O Lawsuit

Posted in Securities Litigation

ibioLike everyone else, I have been following the Ebola outbreak news with a mixture of horror and fascination. I never in a million years imagined that I would have occasion to write about the Ebola outbreak on this blog. Perhaps due to a lack of imagination on my part, I never foresaw that there might be an Ebola outbreak-related D&O claim. As it turns out, though, late last week plaintiffs’ lawyers filed a securities class action lawsuit against iBio, Inc. for allegedly misrepresenting its role in manufacturing an experimental Ebola vaccine.

 

As reflected in their October 24, 2014 press release (here),  plaintiffibiocomplaint lawyers have filed a securities class action lawsuit in the United States District Court for the District of Delaware against iBio and its Chairman and CEO, Robert B. Kay. The complaint (a copy of which can be found here) was filed on behalf of investors who acquired the company’s shares during an unusually short class period – that is, between October 13, 2014 and October 23, 2014, during which period there was a flurry of media activity about the company’s ostensible involvement in the manufacture of ZMapp, an experimental Ebola virus fighting drug.

 

There is a shortage in the supplies of ZMapp, which is manufactured by Mapp Pharmaceutical and Kentucky BioProcessing. The federal government is helping the current manufacturers of ZMapp to find additional facilities affiliated with Texas A&M to increase the supply of ZMapp. Caliber Biotherapeutics is affiliated with the Texas A&M center and is one of the companies being considered to help manufacture additional supply of ZMapp.

 

The gist of the complaint’s allegations is that the defendants allegedly misrepresented the company’s relationship with Caliber.  The plaintiff alleges that the defendants misled investors by suggesting that iBio’s relationship with Caliber has to do with ZMapp production. The complaint alleges that “in truth, iBio’s relationship with Caliber does not concern the production of ZMapp.”

 

In the complaint’s substantive allegations, the first alleged statement to which the complaint refers is from an October 11, 2014 newspaper article, which stated (and was quoted verbatim in the complaint) as follows:

 

Caliber Biotherapeutics “is by far the largest facility in the world” for producing pharmaceuticals in tobacco plants, said Robert Kay, CEO of iBio Inc., a Newark, Delaware-based biotechnology company that owns one of the technologies used to make drugs in tobacco plants. “If anybody is going to produce this, it is almost axiomatic it has to be with Caliber involved.” Caliber didn’t immediately return a phone message left at its offices.

 

The complaint alleges that iBio issued an October 16, 2014 press release captioned “iBio Responds to Inquiries About its Role in Emergency Response to Ebola Virus Disease Outbreak” (here). The press release describes iBio’s relationship with Caliber, noting that the company has a licensing agreement with Caliber to collaborate on commercial opportunities for recombinant antibodies and antibody-related proteins. In a separate paragraph, the press release also states that iBio has offered to assist the U.S government in connection with manufacturing drugs that address the Ebola outbreak.

 

The complaint also refers to an October 17, 2014 online article that cites an unnamed iBio spokesperson as having said that “any lab that wants to make ZMapp vaccine using plant-based technology would have to license it from iBio; Caliber has License from iBio”

 

The complaint alleges that iBio’s representations about its “purported involvement in the emergency response to the Ebola virus outbreak” were misleading because “iBio’s relationship with Caliber had nothing to do with the production of ZMapp or combating the Ebola virus.” The complaint quotes extensively from two Seeking Alpha articles dated October 20, 2014 (here) and October 23, 2014 (here) which raise questions about iBio’s supposed involvement in the production of Ebola-related drugs, and point out that its license with Caliber is not in connection with Ebola drugs but instead, according to iBio’s prior SEC filings, relates to an oncological indication. After the publication of the first Seeking Alpha article, the company’s share price fell 32%, and the share price fell an additional 8% after the second article.

 

On first reading of the complaint, I wondered why it had referenced the October 11, 2014 newspaper article, because the article doesn’t say anything suggesting that iBio is involved with producing the Ebola medication or that iBio’s license relationship with Caliber has to do with Ebola. Then I read the stock purchase certification the plaintiff attached to the complaint. It shows that the plaintiff bought iBio shares on October 14, 2014 (7872 shares @1.89/share), October 17, 2014 (8400 shares @ 2.29/shre) and again on October 17, 2014 (15050 @ 2.20/share). Now I know that the complaint refers to the October 11 newspaper article in order to try to take the beginning of the class period back to a time prior to the plaintiff’s first purchase of iBio shares on October 14.

 

The first statement by iBio that the complaint cites in which the company referred to its relationship with Caliber is the October 16 press release. Unless the plaintiff can come up with some other statements from the company prior to October 16, the plaintiff will have difficulty pushing the start of the class period before October 16.

 

In addition, it is not going to be easy for the plaintiff to make of the October 16 press release what he attempts to make of it in his complaint. The press release itself does not say that iBio’s relationship with Caliber has anything to do with the Ebola drug. The press release does, two paragraphs after the mention of iBio’s license relationship with Caliber, refer to the iBio’s offer to help the federal government with the Ebola drug. The plaintiff is in effect seeking to argue that the subsequent reference in the press release is connected to the earlier reference to Caliber. The difficulty the plaintiff will have is that, as the complaint itself states, the company’s own prior SEC filings state that iBio’s licensing relationship with Caliber relates to an oncological indication.

 

In preparing this blog post, I trolled through a lot of the chatter that has been taking place on various Internet investment sites about the available alternatives for Ebola medication. It is obvious that there is a segment of the investment marketplace convinced there is money to be made out of the Ebola outbreak, by trying to pick the winners on the Ebola drug derby. Whatever one might make of this macabre attempt to attempt to profit from the Ebola outbreak, it is clear that among the companies that got caught up in the frenzy was iBio. Indeed, that appears to explain the plaintiff’s purchase of iBio shares. Where the plaintiff may struggle in this lawsuit, at least based on the allegations presented in the complaint, is showing that the iBio got caught up in the frenzy because of statements by iBio itself.

 

The one statement on which the plaintiff seeks rely that comes closes to linking iBio up to the Ebola drug efforts of  Caliber is the October 17 Internet article that supposedly said that an “iBio Spokesperson Says Any Lab the Wants to Make ZMapp Vaccine Using Plant-Based Technology Would have to License it from Bio; Caliber has License.” Even this statement doesn’t quite deliver the alleged misrepresentation on which the plaintiff purports to rely (that is, that Caliber’s license arrangement with iBio has to do with Ebola). For what it is worth, I wasn’t able to find this statement on the website to which the complaint refers, and even then, I am not sure how far the plaintiff will be able to get relying on a third party’s account of what an unidentified spokesperson may have said.

 

The Ebola outbreak presents a complicated and frightening public heath threat and involves a terrible affliction for the individuals infected by the virus. I never anticipated that a D&O claim would be among the things that would follow in the wake of the outbreak. Having failed to foresee the possibility this claim, I am not going to attempt to predict whether there will be other Ebola-related D&O claims. As long as I have been doing this, nothing should surprise me any more. I will say, it is always something new and different.

Perhaps This Really Is the Last Round of Mug Shots?

Posted in Mug Shots

mugshot4-300x224I know I have previously declared (twice now) that we have reached the end of the publication of readers’ mug shots, but the pictures just keep arriving. I have been holding some late arriving pictures on the chance that still others might appear, but rather than let the pictures in hand to go stale, I decided to go ahead and publish them now. I don’t expect any more pictures to arrive, but you never know. There may yet be more pictures to come – and if any of you out there have pictures, please do send them in – but in the meantime here is the latest final round of pictures.

 

Readers will recall that early last year, I offered to send out a D&O Diary coffee mug to anyone who requested one – for free – but only if the recipient agreed to send me back a picture of the mug and a description of the circumstances in which the picture was taken. In previous posts (here, here, here, here, here, here, here, here , here, here, here, here, here, here, here, here, here, here and here), I published prior rounds of readers’ pictures. I have posted the latest round of readers’ pictures below.

 

The first picture is from Glenn Dockery, of Paragon Risk Management in Lakeland, Florida.. Glenn reports that the dog’s name is Petey, and that he is “a blue nose pit bull my son rescued from a shelter six years ago.” He adds that “we have had Petey since he was six weeks old and despite his very menacing look, he is very affectionate and social with people and other dogs.”

 

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The next pictures are from Kevin Ishizu, Sharmila Mahendra and Kris Martin of Wells Fargo Insurance Services in San Francisco. Their D&O Diary mug shots were taken at the San Francisco History Museum located at Wells Fargo’s world headquarters. The pictures were taken in front of an authentic Concord Stagecoach used by Wells Fargo in the 1860s.

 

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Thanks to everyone sent in a mug shot as part of this long-running series. It has been great fun receiving the pictures and seeing the amazing diversity of locations where people have taken their mug shots. There is still time for anyone who still wants to send along their own mug shot; I would be delighted to be able to publish yet another round of pictures.    

 

Cheers to everyone who helped make this series so much fun.

Tesco Accounting Scandal Draws Securities Class Action Lawsuit

Posted in Securities Litigation

tescoWhen Tesco PLC announced on September 22, 2014 that its previously forecast first-half profit had been overstated by £250 ($408.8 million), the news of the accounting irregularities was “serious,” as Tesco plc’s CEO of less than a month’s standing at the time put it.  The company also announced that the overstatement, first flagged when an informed employee alerted the general counsel about the booking of income and the booking of costs, was under investigation by the Freshfields law firm and by the Deloitte accounting firm. The company also suspended four senior executives. A September 23, 2014 Wall Street Journal article about the company’s disclosures can be found here.

 

As bad as the initial announcement was, the news soon grew worse. On October 1, 2014, the company announced that the U.K.’s financial watchdog, the Financial Conduct Authority (FCA), has “commenced a full investigation” of the accounting irregularities at the company. An October 1, 2014 Reuters article about the FCA investigation can be found here.

 

The situation grew bleaker still on October 23, 2014, when the company announced that the amount of the overstatement was actually £263 million pounds ($422 million), rather than the previously announced £250, and that the company’s Board Chair, Richard Broadbent, would be stepping down. An October 23, 2014 Bloomberg article describing the company’s interim results and the Chair’s resignation can be found here.

 

The accounting woes follow a period of tumultuous change in the company’s executive offices. The new CEO, Dave Lewis, just assumed the CEO role on September 1, a month earlier than expected, after the former CEO, Phillip Clarke, was dismissed in July. For several months, the company had no CFO after the former CFO, Laurie McIlwee, stepped down in April. The new CFO designate, Alan Stewart, had not been scheduled to take up the role until December; however, on September 23, 2014, immediately after the initial disclosure of the overstatement, the company announced that Stewart’s starting date had been moved up and that he would take up the CFO role that same day. 

 

These kinds of events involving a U.S. company would almost automatically attract a securities class action lawsuit. However, Tesco is a UK-based company. Its shares trade primarily on the London Stock Exchange. Under the U.S. Supreme Court’s July 2010 decision in Morrison v. National Australia Bank, the U.S. securities laws would not apply to the claims of any investors who had purchased company’s shares on the LSE. Just the same, the company has attracted a securities class action lawsuit filed in a U.S. court because, in addition to the shares trading on the LSE, the company also has American Depositary Receipts that trade over the counter in the U.S.

 

On October 23, 2014, plaintiffs’ lawyers initiated a lawsuit in the Southern District of New York on behalf of investors who purchased Tesco ADRs in the U.S. between February 2, 2014 and September 22, 2014. The complaint (which can be found here) was filed on by the Irving Fireman’s Relief and Retirement Fund, a pension fund for the Irving, Texas firefighters. The complaint names the company, McIlwee, and Clarke as defendants. The complaint alleges that through a variety of misrepresentations during the class period, the defendants violated the U.S. securities laws. The complaint asserts that the company’s share price dropped 12% following the disclosure of the accounting irregularities on September 22, and fell a total of 43% from its high during the class period. The plaintiffs’ lawyers’ October 23, 2014 press release can be found here.

 

At one level it is hardly surprising that developments of this kind have attracted a securities class action lawsuit. There are, however, a number of interesting things about the lawsuit that was filed. The first has to do with the plaintiff class. I suspect that the vast majority of the company’s shares trade on the London Stock Exchange. I can’t tell what percentage of the companies securities trade over the counter as ADRs in the U.S., but I am guessing it is a small percentage compared to the percentage of shares that trade on the LSE (I recognize that there is probably a very easy way to determine this from publicly available information, but the research staff resources are pretty thin here. I welcome input from any reader that can shed any light on this topic.) The U.S. plaintiffs’ lawyers could not under Morrison file claims on behalf of the LSE purchasers, but that still begs the question of how big the class of U.S. ADR purchasers might be. I could be wrong of course, but it wouldn’t surprise me to find out that the class of ADR purchasers is relatively small.

 

UPDATE: A reader notes as follows:  ”Based on average trading volume, trading in London far exceeds trading in the US OTC market.   Yahoo finance, for instance, shows average daily trading volume in London over the past 3 months of ~37,000,000 compared to just 900,000 ADRs in the OTC market (each ADR is convertible into 4 ordinary shares).”

 

The other interesting thing to me about the new securities suit against Tesco is that it represents yet another securities class action lawsuit filed in U.S. court against a non-U.S. domiciled company. After the U.S. Supreme Court’s decision in Morrison, it might have been expected that securities suits involving non-U.S. companies would be rare. As it has turned out, securities litigation involving non-U.S. companies has continued to be filed at a relatively brisk clip. The new lawsuit against Tesco represents, by my count, the nineteenth lawsuit filed so far during 2014 involving a non-U.S. company, out of an informal overall tally of 136 filings so far this year, or just about 14% of all securities suit filings.

 

While the rate of filings against non-U.S. companies so far this year is down slightly from last year (when 16.9% of all securities suit filings involved non-U.S. companies), even the lower rate so far this year is elevated compared to historical levels; during the period 1997 to 2009, the annual average percentage was around nine percent. So contrary to what you might have expected after the Supreme Court’s Morrison ruling, the filings against non-U.S. companies have consistently been up since the decision.

 

Another interesting thing about this lawsuit is the specific individuals that are named as defendants. Though the two individual defendants, Clarke and McIlwee, served as CEO and CFO respectively during the class period, McIlwee was long gone from the company and Clarke had already been terminated by August 29, 2014, which was the date of the guidance that the company later had to revise on September 22, 2014. The problem for the plaintiffs is that, at least as far as I can tell, on August 29, the company had no CFO and a CEO who had already been terminated and who was stepping down in favor of Dave Lewis, owing to the tumult in the company’s executive offices. To be sure, the company did state in its October 23 earnings release that the irregularities started prior to this year, and the plaintiffs do allege that there were other misrepresentations during the class period. But the heart of this lawsuit is the alleged overstatement of projected profits in the company’s August 29 guidance. The individuals the plaintiff named as defendant arguably are not the most logical defendants for a case that really has to be built around the company’s August 29 profit forecast. .

 

The final interesting thing to me about this case is that the accounting issues first came to light as a result of a whistleblower’s report. The public information about the whistleblower report is fairly scant, but it appears that someone with knowledge approached the company’s general counsel with information about the accelerated recognition of income and the delayed accounting of costs. An interesting question is why the whistleblower chose to report internally rather than reporting the improprieties to the SEC, and thereby trying to qualify for a whistleblower bounty award. Whether a report to the SEC about Tesco, a U.K. based company whose shares only trade OTC in the U.S., would have garnered a whistleblower bounty is an interesting question, but it is worth noting that the recent record $30 million whistleblower bounty award was made to a foreign domiciled individual.   

 

In any event, the lawsuit filed against Tesco represents the latest example of a something that I think we will be seeing a lot more of — that is, a securities class action being filed after a whistleblower’s revelation of accounting or other improprieties. As I noted in an earlier post (here), particularly in light of the incentives that the Dodd-Frank whistleblower bounty provides, we will likely see many more securities suits following after whistleblower reports.

 

Eleventh Circuit Vacates Dismissal of Integrity Bank Lawsuit, Remands Case to District Court: In a July 2014 opinion, the Georgia Supreme Court answered certified questions in The Buckhead Community Bank case having to do with the availability of the business judgment rule under Georgia law and whether bank directors and officers could be liable under the state’s law for claims of ordinary negligence. The Buckhead Community Bank case had been submitted to Georgia’s highest court on certified questions by Northern District of Georgia Judge Thomas W. Thrash, Jr. Similar questions were also certified to the Georgia Supreme Court in the Integrity Bank case by the Eleventh Circuit. The question certified was in both cases nearly identical – that is, the courts sought to determine whether or not under Georgia law a bank director could be held liable for claims of negligence or whether liability for those claims would be precluded by the business judgment rule.

 

As discussed here, in its July 2014 opinion in the The Buckhead Community Bank case, the Georgia Supreme Court ruled that that the common law of Georgia recognizes the business judgment rule — but while the rule insulates directors and officers from claims of negligence concerning the wisdom of their judgment, it does not foreclose negligence claims against them alleging that their decision making was made without deliberation or the requisite diligence, or in bad faith.

 

On October 24, 2014, the Eleventh Circuit issued a per curiam opinion in the Integrity Bank case, based on the Georgia Supreme Court’s response to the federal appellate court’s certified questions. The Eleventh Circuit recited that in light of its opinion in The Buckhead Community Bank case, the Supreme Court of Georgia “now advises us that a bank director may violate the standard of care” under applicable Georgia statutes “even where he acts in good faith, where, with respect to process by which he makes decisions, he fails to exercise the diligence, care and skill of ordinarily prudent med action under similar circumstances in like positions.” (Citations omitted).

 

The per curiam opinion vacates the order of dismissal the district court had entered in the case and remands the case back to the district court for further proceedings in light of the Georgia Supreme Court’s opinion.

 

faithandwhiseyIt’s All Part of My Rock and Roll Fantasy: Prior to this past weekend, about the only thing I knew about the Grog Shop, a music club in the Coventry neighborhood in Cleveland Heights, is that when they still lived at home my kids used to go there for concerts. However, this past Saturday night, my wife and I were part of the crowd at the Grog Shop bar, there for some live music. We had come to hear the local rock and roll bank Faith & Whiskey (“If you don’t have one, you’d better have the other”) play a righteous round of classic rock music. Among the band members was our good friend Jerry Kysela, of AON Cleveland, on rhythm guitar. (That’s Jerry on near side in the pictures above and below)  It was also a costume event for Halloween, so the crowd was in high spirits. In all honesty, the D&O Diary doesn’t rock out that much any more, but I can still enjoy a good rock and roll band. I have to say that watching the (mostly middle-age) guys rocking out on the stage, it looked like they were having a heck of a lot of fun.

 

We took a few pictures and I asked Jerry if it was OK if I wrote about his band on my blog, and he said “You can do whatever you want.” So along with the pictures of the event, I will invoke the lyrics of the Bad Company song “Rock and Roll Fantasy,” which go like this: “Here come the jesters, one, two, three./It’s all part of my fantasy/I love the music and I love to see the crowd/Dancing in the aisles and singing out loud.” It’s all part of my rock and roll fantasy.

 

My son says “Now that you and Mom have been to the Grog Shop, anything might happen.” Seriously.

 

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In addition to some great rock and roll, there were some great costumes.

 

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These pictures don’t have anything to do with Rock and Roll or the Grog Shop, but it wass such a beautiful weekend here it seems like a shame not to drop them in here as well. Taken on Sunday at Lower Shaker Lake, Shaker Heights, Ohio.

 

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D&O Insurance: Contractual Liability Exclusion Precludes Coverage for Negligent Misrepresentation Claims

Posted in D & O Insurance

floridaIn an October 20, 201 opinion (here), Middle District of Florida Judge Roy B. Dalton, Jr., applying Florida law, entered summary judgment for a D&O insurer, holding that the insurer was not liable for the stipulated judgment its insured had entered because the policy’s broad contractual liability exclusion precluded coverage for the underlying claims of negligence and misrepresentation that had been asserted against the insured.

 

Background

 

Land Resources LLC (LRC) was a land development company that eventually went bankrupt.  James Robert Ward was an executive of LRC. In connection with certain land development projects in Georgia, Tennessee and North Carolina, two bond companies issued subdivision bonds on behalf of LRC to guarantee the completion of the projects. As part of the bond issuance, Ward and LRC executed a General Agreement of Indemnity (GAI) under which they indemnified the bond companies for liabilities and costs the bond insurers incur in relation to the bonds.

 

LRC defaulted on the bonds and the bond issuers sued Ward alleging that he was liable for the bond issuers’ losses. The bond issuers alleged that Ward had caused LRC to default by negligent acts errors and omissions (the negligence claim) and had induced the bond issuers to issue to bonds by negligently failing to disclose LRC’s financial condition to the bond issuers (the misrepresentation claim). The bond issuers’ initial complaint also included a claim against Ward for indemnification under the GAI, but the bond issuers’ amended complaint omitted the indemnification claim.

 

Ward submitted the lawsuit to LRC’s D&O insurer. The D&O insurer denied coverage for the claim under the policy’s contractual liability exclusion. Ward entered into a settlement of the underlying lawsuit whereby he agreed to a stipulated judgment of $40 million and assigned his rights under the policy to the bond issuers. The bond issuers then sued the insurer seeking to recover the amount of the judgment.  The D&O insurer moved for summary judgment, arguing that there was no coverage under its policy for the bond issuers’ claims against Ward.

 

Exclusion 4(h) of the policy provided that the insurer “shall not be liable to make any payment for Loss in connection with a Claim made against an Insured … alleging, arising out of, based upon or attributable to any actual or alleged contractual liability of the Company or any other insured under any express contract or agreement.”

 

The October 20 Opinion

 

In moving for summary judgment, the insurer argued that Exclusion 4(h) precluded coverage for the claims against Ward because the losses claimed in the underlying action arose out of Ward’s and LRC’s breaches of their contractual obligations under the GAI and the bonds.  The bond issuers argued that the defendants’ arguments take construction of the Policy “to a tortured extreme, arguing that the mere utterance of the word ‘bond’ or ‘contract’ by Plaintiffs in this action sucks the claim in the protective ambit of the exclusion” and ignores the “legal legitimacy of Plaintiffs’ tort claim which stand independently of any contractual liability.”

 

Judge Dalton agreed with the insurer, saying that “this court finds that the phrase ‘arising out of’ as used in Exclusion 4(h) is unambiguously broad and preclude coverage for purported tort claims that depend on ‘the existence of actual or alleged contractual liability’ of an insured ‘under any express contract or agreement.’”

 

He added that the insurer had introduced evidence that the “purported negligent misrepresentation claim” in the underlying lawsuit “depended on (and was not merely incidental to) Ward’s and LRC’s contractual liability under the GAI, the Bonds and the various developmental agreements.” He also noted that the bond issuers conceded that their tort claim arose out of defaults on the Bonds, their losses arose from the contractual liability of Ward and that they would have suffered no losses had Ward performed his obligations. He also found that the bond issuers’ argument that “there never would have been any contracts” were it not for Ward’s negligent misrepresentations “finds no support in the cited deposition testimony and interrogatory responses.”

 

Although he did not need to reach the issue, he went on to rule that even if there were coverage under the policy, the insurer would be entitled to summary judgment because the settlement of the underlying lawsuit (which took the form of a so-called Coblentz agreement between the claimant and the insured and involved the insured’s assignment of policy rights) “was reached by collusion or an absence of effort to minimize liability.”  He noted a “plethora of evidence indicating that enforcement of the Coblentz agreement in this case would be contrary to Florida law.”

 

In reaching this conclusion about the settlement agreement, Judge Dalton noted, among other things that Ward obtained benefits “beyond the mere conclusion of the Underlying Action”; that Ward had not “endeavored to minimize the amount of the judgment” (and noting that Ward had settled with two bond issuers for relatively nominal amounts); and that Ward had defenses to the underlying action.

 

Discussion

 

I suspect that many readers will find the outcome of this case surprising, as claims of negligence and negligent misrepresentation are the very sorts of claims for which policies of this type are purchased. But as I noted in a prior post discussing an earlier decision in which another court held that the contractual liability exclusion precluded coverage for a negligent misrepresentation claim, the outcome of the coverage analysis is attributable to the sweeping breadth of the exclusion’s omnibus preamble. In the prior case as in this case, the courts held that coverage was precluded because of the breadth of the “based upon, arising out of” language.

 

The disconcerting thing about this application of the exclusion is that it implies that the exclusion could preclude coverage for any claim in which any sort of a transaction is involved. The trouble is that many of not most D&O claims involve some sort of a transaction that includes some sort of a contract or agreement or understanding. If the “based upon, arising out of language” sweeps as broadly as Judge Dalton’s opinion seems to imply, the exclusion potentially could block the coverage for which the policy was intended.

 

One remedy for the potential over-breadth of the exclusion would be to substitute the word “for” in lieu of the “based upon, arising out of language.” However, many carriers will insist on using the broad preamble for the contractual liability exclusion and will refuse the narrower “for” language. Given the extent of the preclusive effect that courts have found in interpreting contractual liability exclusions with broad omnibus preambles, policy forms using the narrower “for” wording are, in this respect, superior  from the policyholder’s perspective, particularly if carriers whose policies have the broader wording try to apply the exclusion to preclude a broad range of types of claims.

 

As I suggested in my earlier post, I think the “for” wording is more consistent with the purposes for including a contractual liability exclusion in a D&O policy. An exclusion with the “for” wording makes it clear that insurers do not intent to pick up the insured company’s contractual liability, without extending the exclusion’s preclusive effect to a broad range of tort claims alleging different types of wrongful misconduct.

 

From my days as a coverage attorney on the insurance company side, I retain a basic dislike for the kind of settlement Ward entered with the bond insurers. These kind of deals always felt like an attempt to try to set up the insurer. Just the same, I found Judge Dalton’s conclusion that the settlement agreement here was collusive a little unexpected, and not just because he didn’t need to reach the issue. While I see his point about the $40 million amount of the stipulated judgment, the rest of his reasoning to me seems off the mark.

 

The insurance company had denied coverage, Ward had to look out for his own interests as best he could, no thanks to the insurer. What obligation did he have to try to negotiate a better deal for the benefit of the insurer? What possible expectation could the insurer have in that in reaching a settlement he should have to “minimize” the amount of the settlement or try to assert defenses he may have? Why shouldn’t he be able to extract as many benefits out of the settlement as he could? The amount of the settlement arguably may support a conclusion that the settlement was conclusive, but I am not as persuaded by the other grounds on which Judge Dalton relied support his conclusion that the settlement was collusive.

 

An earlier post in which I set out a broader overview of the contractual liability exclusion can be found here.  

Many Companies’ Most Significant Regulatory Risks Are Not in Their Home Country

Posted in Regulatory Enforcement

globeWhen Chinese regulators hit GlaxoSmithKline with a $489 million penalty last month – the largest corporate penalty ever in China – it set off alarm bells around the world. Among other things it sent out a “wake-up call for global companies that assumed that their main regulatory risk is in their home countries,” according to a commentator quoted in an October 21, 2014 Bloomberg article entitled “Hong Kong is Hot Spot for U.S. Lawyers as Probes Rise” (here). The GSK penalty is just one of several developments that have triggered fears of increased regulatory enforcement action in China and elsewhere, that, according to the Bloomberg, has led to increased concerns in corporate executive offices and increased opportunities for lawyers and law firms in Hong Kong and elsewhere. 

 

A critical aspect of the GSK bribery action in China is that it has triggered investigations in both the U.S. and the U.K. as regulators in those countries look into whether the company broke their anti-bribery laws. These circumstances provide just one example of how regulatory and enforcement actions in one country increasingly can lead to regulatory actions in multiple countries. Another example of this phenomenon is the investigation whether Wall Street’s hiring practices in China and Hong Kong violated anti-bribery laws. The issues are also being investigated in the U.S. as well. The ongoing investigations into Libor benchmark rate manipulation and foreign exchange rate manipulations are other examples where regulatory investigations quickly crossed borders and became multi-jurisdictional. 

 

The upshot of al this is that a regulatory investigation in one country can lead to what one commentator in the Bloomberg article called “industrial strength investigations,” involving agencies in the U.S., Europe and Asia. These trends are only likely to accelerate as additional countries – including, for example, India, Indonesia and Thailand – step up efforts on anticorruption, antitrust and sanctions. 

 

The point of the Bloomberg article is that this regulatory enforcement trend has fueled a boom for lawyers, as the cross-border investigations require the involvement of lawyers and law firms that can coordinate responses the investigations in the various jurisdictions. In addition, companies interested in trying to head off problems before they arise have been willing to enlist the services of lawyers to provide compliance and training services. 

 

There are a number of interesting points in the Bloomberg article, particularly the point that increasingly companies’ greatest regulatory risks may not be in their home country. Even if the risks outside the home country are not greater, it is certainly true for many companies that their regulatory risks are not limited to those in their home country. As regulators everywhere become more active on anti-bribery and other issues, the risk of regulatory action is now widespread and dispersed, and includes not only the risk of a regulatory action outside a company’s home country, but also includes the risk of a cross-border, multi-jurisdictional regulatory action. 

 

In many instances the onset of a regulatory action will not trigger a company’s D&O insurance policy, although it usually will trigger a claims notice from the company to its insurer. But as a regulatory action progresses into an enforcement proceeding, the D&O insurance may become a factor, at least for defense costs – particularly if individuals are targeted in the investigation or named as defendants in an enforcement action. So even though the D&O policy will not in most instances provide insurance for regulatory fines and penalties, it could nevertheless prove to be important even if just on a defense cost basis. 

 

An additional factor be kept in mind as well is that regulator and investigative action can, as is noted in the Bloomberg article, be followed by a follow-on civil action against company management, which likely would trigger the D&O policy, or even possibly insolvency proceedings, which again could lead to actions that might trigger the D&O policy.  

 

The risk of the follow-on civil action coming in the wake of a regulatory investigation is a phenomenon I have noted frequently on this blog — including in particular the risk of follow in civil actions in the U.S. following regulatory actions and investigations outside the U.S, as discussed here

 

I happen to think that the increasing global regulatory enforcement activity is one of the important emerging trends in the corporate liability arena. These developments have very important liability implications both for non-U.S. companies in their home countries and operating abroad, and for U.S. companies operating overseas. For D&O underwriters, these developments have important underwriting implications. And for policyholders and their advisors, these developments raise important and challenging questions about the availability and effectiveness of their insurance to respond to these emerging regulatory claims in all of the jurisdictions in which the claims might arise. 

 

More About Dark Pool Trading: If you have not yet read the article entitled “The Empire of Edge” in October 13, 2014 issue of The New Yorker (here) about the insider trading investigation of S.A.C. Capital and the conviction of former S.A.C. trader Mathew Martoma, you will want to set aside some time and read it carefully. It is absolutely fascinating, particularly on the questions surrounding Martoma’s motivations. 

 

Among many other very interesting details in the article is its account of how S.A.C. Capital took advantage of trading on a private “dark pool” trading platform to unwind its massive positions in the securities of Elan and Wyeth — just ahead of public disclosures of clinical trial setbacks in a promising Alzheimer’s therapy the companies were pursuing – without attracting attention to its trades: 

 

When the market opened on Monday, Cohen and Martoma instructed Phil Villhauer, Cohen’s head trader at S.A.C., to begin quietly selling Elan and Wyeth shares. Villhauer unloaded them using “dark pools”—an anonymous electronic exchange for stocks—and other techniques that made the trades difficult to detect. Over the next several days, S.A.C. sold off its entire position in Elan and Wyeth so discreetly that only a few people at the firm were aware it was happening. On July 21st, Villhauer wrote to Martoma, “No one knows except me you and Steve.” 

….

[T]he next evening, word of the ambiguous results hit the news wires. Tim Jandovitz, a young trader who worked for Martoma, watched in dismay as the news appeared on his Bloomberg terminal in Stamford. He checked Panorama [an S.A.C. portfolio monitor], which showed that S.A.C. still held huge positions in Elan and Wyeth. Jandovitz believed that both he and Martoma had just lost more than a hundred million dollars of Steven Cohen’s money—and, along with it, their jobs. The next morning, he braced himself and went to the office. But when he consulted Panorama he saw that the Elan and Wyeth shares had vanished. Some time later, Martoma informed Jandovitz that S.A.C. no longer owned the stock.

 

 

Barclays Libor-Scandal Securities Suit Survives Renewed Dismissal Motion

Posted in Libor Scandal, Uncategorized

barclaysThe Libor-scandal based securities suit filed against Barclays and certain of its directors and offices will now be going forward. The case was initially dismissed, but on appeal the Second Circuit vacated a part of the dismissal ruling and returned the case to the district court for further proceedings. The defendants filed a renewed motion to dismiss. In an October 21, 2014 order (here), Judge Shira Schindlin denied the defendants’ motion, holding that the plaintiffs’ allegations of scienter were sufficient to meet the pleading requirements. The lawsuit, filed on behalf of investors who purchased Barclays American Depositary Receipts (ADR) in the United States, will now proceed.

 

Background

On June 27, 2012, Barclays announced that it had entered settlements with regulators in the United States and the United Kingdom relating to the Libor-manipulation scandal. Barclays agreed to pay fines totaling more than $450 million and admitted for the first time that between August 2007 and January 2009 the bank had in its Libor submissions underreported the interest rates it was paying.

 

As discussed in greater detail here, on July 10, 2012, Barclays shareholders filed a securities class action lawsuit in the Southern District of New York, against Barclays PLC and two related Barclays entities, as well as the company’s former CEO, Robert Diamond; and its former Chairman Marcus Agius. (Former Group Chief Executive John S. Varley was added as a defendant later). The complaint, which can be found here, was filed on behalf of class of persons who purchased Barclays ADRs between July 10, 2007 and June 27, 2012.

 

The plaintiffs’ complaint alleges that the bank willfully misrepresented the bank’s borrowing costs between 2007 and 2009 and knowingly submitted false information for purposes of calculating Libor. The plaintiffs allege that by underreporting the bank’s interest rates, the bank misrepresented the bank’s financial condition. The plaintiffs also allege that the defendants misleadingly stated that the company had established adequate internal controls. (For a detailed background regarding the Libor rate setting process and the allegations regarding Libor’s alleged manipulation refer here.) The defendants moved to dismiss the complaint.

 

In a May 13, 2013 opinion (discussed here), Judge Scheindlin granted the defendants’ motion to dismiss.  The plaintiffs appealed. As discussed here, in an April 25, 2014 decision, the Second Circuit affirmed the dismissal ruling in connection with the allegedly misleading statements regarding the bank’s internal controls. However, with respect to the remaining allegations concerning  the alleged underreporting of the bank’s borrowing costs,, the appellate court vacated the district court’s dismissal based on her finding that the plaintiffs had not adequately pled loss causation. The appellate court said “While expressing no view on the ultimate merits of plaintiffs’ theory of loss causation, we hold that the court below reached these conclusions prematurely.” On remand to the district court, the defendants filed a renewed motion to dismiss.

 

The October 21 Order

In her October 21 order, Judge Scheindlin denied the defendant’s motion to dismiss, holding that the plaintiffs had adequately pled scienter as to Barclays and as to Diamond, and had adequately pled control person liability allegations as to Agius and Varley.

 

In concluding that the plaintiffs had adequately pled scienter as to the Barclays entities, Judge Scheindlin examined the plaintiffs’ allegations that Barclays submitted inaccurate Dollar Libor figures that underreported the bank’s borrowing costs. The plaintiffs also allege these inaccurate submissions were made at the direction of senior management. The plaintiffs’ allegations regarding the Libor submissions drew heavily on the factual recitals in the documents prepared in connection with the regulatory settlements.

 

Judge Scheindlin said that “Barclays’s repeated, long-term and knowing submission of false rates suggest far more than an intent to violate [British Banking Authority] rules. Rather the conduct constitutes strong circumstantial evidence of conscious misbehavior or recklessness.”(Citations omitted). The complaint’s allegations “are sufficient to give rise to a strong inference that the danger was either known to Barclays or so obvious that Barclays must have been aware of it.” (Citations omitted). She added that the complaint “also plausibly alleges Barclays’s motive – to counter negative perceptions about its borrowing costs and, more generally, its financial condition.”

 

Taken together, Judge Scheindlin said, the allegations, “give rise to a cogent and compelling inference that Barclays falsified the LIBOR submissions because it understood their likely effect on the market.” She rejected the innocent motive that the defendants sought to suggest – that is, that Barclays was merely attempting to correct a misrepresentation in the market about Barclays’s financial health. She said that the inference of scienter is “cogent and at least as compelling as the competing inference of innocent intent suggested by Defendants.”

 

Judge Scheindlin also found that the plaintiffs’ scienter allegations against Diamond were sufficient. The plaintiffs alleged that in October 2008, following a conversation with a Bank of England official, Diamond had ordered another executive to understate LIBOR submissions so that Barclays would not be an outlier on its reported interest rates among the rate setting banks. The plaintiffs also sought to rely on statements Diamond had made in an October 31, 2008 conference call with analysts about Barclays borrowing rates.

 

In concluding that the allegations regarding the instructions to the other executive to understate the bank’s LIBOR submissions met the Second Circuit’s “motive and opportunity” test for pleading scienter, Judge Scheidlin said that “the complaint’s allegations, including its historical context, provide a clear motive; the fact that Barclays made false LIBOR submissions following Diamond’s instructions evince opportunity.”  With respect to the statements in the analyst conference call, Judge Scheindlin noted that Diamond’s conversation with the Bank of England and instructions to the bank executive took place just two days before the conference call and his instructions to the bank executive, which she said is “inconsistent with the truth of either of the statements” Diamond allegedly made in the conference call on which the plaintiffs seek to rely.” The “inconsistency, together with the conduct alleged, creates a cogent and compelling inference that – at the very least – Diamond acted recklessly.”

 

With respect to the control person liability allegations against Agius and Varley, Judge Scheindlin noted that “while merely identifying the title of a corporate officer is insufficient to state a claim,” the Complaint “describes sustained and long-running misconduct that was known to management, including high-ranking corporate officers.” These allegations, Judge Scheindlin were sufficient to state a claim against Agius and Varley for control person liability.

 

Discussion

Of the many different financial institutions caught up in the Libor scandal, Barclays is the only one that is involved in a Libor-scandal related securities class action lawsuit – most of the other banks involved in the scandal do not have securities that trade on the U.S. exchanges, and of the banks that have securities trading in the U.S, Barclays is the only one to be hit with a securities suit. (As noted here, one Libor-scandal claimant, the Charles Schwab Corporation, has filed an individual action in California state court seeking to recover damages from the Libor rate-setting banks on a number of theories, including under Section 11 of the ’33 Act.)

 

When this case was dismissed at the outset, it looked as if Barclays was going to be able to avoid any potential liability under the U.S. securities laws for alleged misrepresentations concerning its Libor submissions. However, when the Second Circuit reversed a portion of the dismissal ruling, it meant that the case was returning to the district court for further proceedings. In light of Judge Scheindlin’s latest order, the case will now be going forward as to all of the defendants.

 

The Libor-related litigation generally, including the consolidated Antitrust litigation pending in the Southern District of New York, has had many twists and turns, and this case is no exception. Discovery in this case will now go forward.  For securities litigation plaintiffs, the name of the game is to get past the dismissal motions stage with at least some portion of the case intact, which the plaintiffs here have accomplished. While the next procedural stage is discovery, the likely direction of the case undoubtedly reflect the fact that securities cases almost always settle, a fact on which the plaintiffs undoubtedly will be pushing as the case goes forward.

 

This case is not the only securities suit that Barclays is facing in the Southern District of New York. As discussed here, in July, Barclays was also named as a defendant in a securities class action lawsuit arising out of the bank’s “dark pool” private securities trading venue. Barclays is also one of the many defendants named in the “Flash Boys” high frequency trading securities class action lawsuit, as discussed here.

 

Russian Drivers: I am sure many readers saw the terrible story about the plane crash in Russia in which Total SA’s Chief Executive Officer Christophe de Margerie was killed, along with three of the plane’s crew members. According to news reports, the crash occurred after the business jet in which de Margerie was traveling struck a snow plow on a runway. The driver of the snow plow reportedly was drunk  — apparently along with the airport’s dispatchers, according to a detailed account on Fortune magazine’s website.

 

According to Wikipedia (here), Russians consume about 18 liters 4.8 US gal) of spirits a year, more than double the 8 liters (2.1 US gal) that the World Health Organization considers dangerous. All of that alcohol consumption has its consequences. In June 2009, the Public Chamber of Russia reported over 500,000 alcohol-related deaths annually.

 

As the tragic death of de Margerie shows, all too often the consumption of alcohol results in vehicle- related deaths. It is one thing to recite these statistics. It is another thing altogether to see what is actually happening on Russia’s roads. There is no way to know how many of the drivers shown in the following  video are under the influence of alcohol, but watch it and see if you think I am jumping to conclusions is suggesting that an awful lot of these drivers have been drinking . By the way, these videos exist because pretty much everybody in Russia has a dash camera as way of substantiating what has happened in the event of an accident (as you can tell from the video, accidents happen frequently). 

 

Dismissal Granted in Cyber Breach-Related Derivative Suit Filed Against Wyndham Officials

Posted in Cyber Liability

wyndham Along with the separate derivative lawsuit filed against Target Corporation’s board, the cyber breach-related derivate action filed against Wyndham Worldwide Corporation’s board has been closely watched as representative of a potential new area  liability exposure for corporate directors and officers.  However, in an October 20, 2014 opinion, District of New Jersey Judge Stanley Chesler, applying Delaware law, granted the defendants’ motion to dismiss the plaintiff’s complaint. A copy of Judge Chesler’s opinion can be found here.

 

Background 

As discussed here, the derivative lawsuit filed against the Wyndham officials relates to the three data breaches the company the company and its operating units sustained during the period April 2008 to January 2010. As discussed here, the company is already the target of a Federal Trade Commission enforcement action in connection with the breaches. A prior ruling that the FTC action can proceed is currently on appeal; to the Third Circuit.

 

Judge Chesler’s opinion recites that after the breaches occurred, the board and its audit committee met multiple times to discuss the company’s cyber security. The company hired a technology company to investigate the breaches and to make recommendations. Between the time of the second and third breach the company began implementing the recommendations.

 

In November 2012, the plaintiff sent the Wyndham board a letter demanding that it bring a lawsuit based on the breaches. The board hired the law firm of Kirkland & Ellis to investigate the plaintiff’s demand. The law firm found after investigation that the demand was not well grounded. In March 2013, the board voted not to pursue the demanded lawsuit.  In June 2013 the plaintiff presented a second demand letter, which the board rejected in August 2013 for the same reasons it had rejected the initial demand. The plaintiff filed his lawsuit in February 2014.

 

In the derivative lawsuit complaint, the plaintiff alleges that “in violation of their express promise to do so, and contrary to reasonable expectations,” the company and its subsidiaries “failed to take reasonable steps to maintain their customers’ personal and financial information in a secure manner.” The complaint goes on to allege that the individual defendants “aggravated” the damage to the company by “failing to timely disclose the breaches in the Company’s financial filings.” The complaint notes that the company did not first disclose the breaches until July 25, 2012, over two-and-a-half years after the third breach occurred.

 

The complaint alleges that the defendants’ failure to implement appropriate internal controls designed to detect and protect repetitive data breaches “severely damaged” the company and resulted in the FTC enforcement action. The FTC action, the complaint notes, “poses the risk of tens of millions of dollars in further damages.” The company’s failure to protect its customers’ personal information “has damaged its reputation with its customer base.”

 

The complaint asserts substantive claims against the individual defendants for breach of fiduciary duty; corporate waste; and unjust enrichment. The defendants moved to dismiss the plaintiff’s complaint.

 

The October 20 Opinion

In his October 20 Opinion, Judge Chesler granted the defendants’ motion to dismiss with prejudice. The defendants had argued that the board’s refusal to pursue the plaintiff’s demand was a good-faith exercise of business judgment, made after a reasonable investigation. Judge Chesler agreed.

 

The plaintiff had tried to argue that the board’s decision to reject the demand was not in good faith because it was based on the advice of the Kirkland & Ellis law firm, the same firm that represents the company in the FTC action. Judge Chesler rejected the plaintiff’s argument that the law firm’s representation of the company in the FTC action put them in a conflict of interest since the firm’s obligation in the two matters were identical. Judge Chesler also rejected the plaintiff’s argument that the demand put the company’s general counsel in a conflict of interest, finding that there was nothing in the demand to suggest that it exposed the general counsel to liability, and indeed did not even mention the general counsel. Judge Chesler also found that the plaintiff had failed to allege any facts to support the allegations that the general counsel’s role included responsibility for the company’s cyber security program.

 

Judge Chesler also rejected the plaintiff’s argument that the board’s decision to reject the shareholder demand was based on inadequate investigation. The Court said that “in light of the ample information the Board had at its disposal when it rejected Plaintiff’s demand, and considering the numerous steps the Board took to familiarize itself with the subject matter of the demand, Plaintiff has also failed to make this showing.” Based on their various actions after the breaches occurred, the board’s members were “well versed on the allegations,” but they did not merely reject the allegations in the plaintiff’s demand. Instead, the board and audit committee hired outside counsel to investigate and they met separately to discuss the results of the investigation.

 

Judge Chesler concluded by observing that “given the business judgment’s rule’s strong presumption, court uphold even cursory investigations by boards refusing shareholder demands.” Here, Judge Chesler said, “the Court finds that the WWC’s Board had a firm grasp on Plaintiff’s demand when it determined that pursuing it was not in the corporation’s best interest.”

 

Discussion

When this lawsuit and the derivative lawsuits against the Target board were filed, there was a great deal of speculation about whether cyber risk represented an emerging area of exposure for the directors and offices of companies that experience cyber breaches. Cyber risk may yet emerge as a significant area of D&O liability exposure. But Judge Chesler’s opinion is a reminder of just how difficult it is for plaintiffs to survive the initial pleading hurdles in derivative lawsuits like the one the plaintiff filed here.

 

With the demand requirement and with the protections of the business judgment rule, plaintiffs face some difficult obstacles in just trying to overcome the preliminary motions. The outcome of this case may or may not discourage plaintiffs in other cases from trying to pursue claims against the boards of companies that experience cyber breaches, but this case hardly suggests that the potential liability of boards of cyber breach companies is a promising new area for plaintiffs’ lawyers.

 

It is probably worth noting that the derivative lawsuit that was filed several years ago against Heartland Payment Systems following that company’s cyber breach was also dismissed. Unless and until the plaintiffs’ lawyers score some successes in these kinds of cases, the outlook would have to be — based on the evidence so far – that this does not appear to be a particularly promising area for plaintiffs’ lawyers.

 

This case does provide some interesting insight into steps that companies that experience a cyber breach can take to try to protect their boards from potential liability related to the breach. Judge Chesler appeared to consider it significant that the board and the audit committee had met multiple times to discuss the breaches, to try to find out what had happened and to try to take remedial steps. By the time the demand latter arrived, the board could argue that its decision making about the demand was well-informed. Obviously, the board’s reliance on the investigation of outside counsel also helped them make the argument that their decision not to pursue the lawsuit was made in good faith.

 

There will much more to be told on the question of whether or not cyber liability represents a significant exposure for the boards of companies that experience a data breach. The lawsuit here does indeed suggest that boards can get sued following a cyber breach. Judge Chesler’s opinion highlights the fact that boards that are sued in these kinds of cases have substantial defenses that will difficult for plaintiffs to overcome.

 

A Whole Bunch of Interesting Litigation and Enforcement Statistics and Analyses

Posted in Securities Litigation

graphicA single case may involve a host of interesting issues but sometimes the important lessons can only be discerned when many cases are considered collectively. This past week saw the release of some interesting analyses of aggregate litigation and enforcement statistics, each set of which told some interesting tales to tell and identified some important trends.

 

The SEC’s FY 2014 Enforcement Statistics

The first of these sets of statistics was presented in the SEC’s October 16, 2014 announcement of its Fiscal Year 2014 enforcement statistics. (The 2014 fiscal year ended on September 30, 2014.) The SEC reported that it filed a “record” number of enforcement actions in 2014 involving a “wide range of misconduct” and including a “number of first-ever cases.”

 

During FY 2014, the SEC filed 755 enforcement actions, which represented a 10% increase over the 686 enforcement actions filed in FY 2013. In FY 2014, the agency also obtained orders totaling $4.16 billion, compared to $3.4 billion in 2013. By way of comparison to the statistics for FY 2013 and FY 2014, in FY 2012 the agency filed 734 enforcement actions and obtained orders totaling $3.1 billion in disgorgement and penalties.

 

The agency identified at least two significant factors driving the increase in enforcement actions. The first was the agency’s use of “new investigative approaches and the innovative use of data and analytic tools” and the second was the agency’s expansion into a number of new areas based on “first time cases.”

 

With respect to the use of data and analysis, the press release quotes SEC Chair Mary Jo White as saying that “the innovative use of technology – enhanced use of data and quantitative analysis – was instrumental in detecting misconduct and contributed to the Enforcement Division’s success in bringing quality actions.”

 

The kinds of “first-ever cases” identified in the press release included “actions involving the market access rule, the ‘pay-to-play’ rule for investment advisers, an emergency action to halt a  municipal bond offering, and an action for whistleblower retaliation.”

 

The press release also quotes SEC Chair White as saying that “aggressive enforcement” will remain a “top priority” and quotes the head of the SEC Enforcement Division as saying that he expects “another year filled with high-impact enforcement actions.” Going forward, the SEC Enforcement head said, the agency will “continue to bring its resources to bear across the entire spectrum of the financial industry.” Ominously, for the clients of the readers of this blog, he noted that among other things the agency will focus on bringing “cases against gatekeepers.”

 

The SEC’s press release includes a detailed recitation of various enforcement initiatives and accomplishments during the year. Among other things, the press release notes that during FY 2014 the agency’s whistleblower program awarded nine whistleblowers with total awards of approximately $35 million (the bulk of which was a single $30 million award, the largest ever, as discussed here).

 

Among other accomplishments, the press release cites the agency’s success during the fiscal year in “holding gatekeepers accountable,” noting that during the year it “held attorneys, accountants and compliance professionals accountable for the important roles they play in the securities industry.” The report also highlights the fact that during the year the agency “obtained the highest-ever FCPA penalties against individuals.”

 

With respect to the agency’s new policy of requiring individual admissions of wrongdoing as a condition of settlement of cases involving “particularly egregious conduct,” the press release notes that during the fiscal year that it had “demanded and obtained acknowledgements of wrongdoing under the admissions policy announced in the previous fiscal year.”

 

Alix Partners 2014 Litigation and Corporate Compliance Survey

On October 16, 2014, the business advisory firm Alix Partners released the report of its 2014 Litigation and Compliance Survey. The report is the result of a June 2014 survey of general counsel and compliance officers at companies in the United States and Europe with annual revenues of $250 million or more. The report underscores the fact that companies of this size in both the US and Europe are experiencing increased levels of litigation activity and incurring increased litigation costs. The firm’s October 16, 2014 press release can be found here and the Survey Report itself can be found here.

 

According to the report, 32 percent of respondents reported an increase in the number of legal disputes in which their companies were involved in the 12 months preceding the survey. The five most frequent types of commercial disputes in which the respondents said their companies were involved in the preceding twelve months were: contract (58%); employment (50%); intellectual property or patent infringement (33%); accounting/financial reporting/disclosure (19%); and insurance (19%). (The results totaled greater than 100% because the survey allowed respondents to select multiple categories.)

 

A particularly interesting observation from the survey responses of the European respondents is that many companies are seeing increases in cross-border disputes, with 35% of European respondents reporting that the number of cross-border disputes had risen during the preceding 12 months.

 

Interestingly, 8% of all respondent and eleven percent of European respondents reported that their companies were involved in bet-the-company disputes during the preceding 12 months. The top five types of bet the company disputes in which the respondents reported that their companies were involved were: contract disputes (50%); intellectual property (38%); class action (38%); antitrust (31%); and securities (13%). (Results totaled greater than 100% because of the selection of multiple categories.) Among the European respondents reporting that their companies were involved in bet-the-company litigation, the most frequently reported categories were contracts (71%) and class actions (57%).

 

All of this litigation activity has led to an increase in litigation spending. 47% of all respondents reported that spending at their companies for litigation had increased in the past year and 38% reported that their litigation departments had grown in the past year. Among the European respondents, half said that their companies had increased spending and 37% reported an increase in the size of their companies’ litigation departments.

 

As a resulting of the growing litigation threats and the mounting litigation spending, many companies are implementing measures to try to detect potential problems. In particular, increased regulatory oversight has encouraged many companies to increase their focus on preventive measures.

 

Academics’ Review of Plaintiffs’ Firms Effectiveness in Merger Objection Litigation

Based on their review of M&A-related litigation over a ten year period, a trio of academics has concluded that the top plaintiffs firms obtain the best results for shareholders, because they aggressively litigate their cases. In their October 2014 paper entitled “Zealous Advocates or Self-Interested Actors?: Assessing the Value of Plaintiffs’ Law Firms in Merger Litigation” (here), Case Western Reserve University Professor C.N.V. Krishnan, U.Cal Berkley Law Professor Steven Davidoff Solomon, and Vanderbilt Law Professor Randall Thomas reviewed a sample of 1,739 merger objection class action lawsuits filed between 2003 and 2012, in order to assess the effectiveness of the plaintiffs’ law firms. The results of their analysis, summarized in an October 15, 2014 article on the Vanderbilt University Web Site entitled “Top Class-Action Law Firms Are Worth Hiring, Study Says” (here), showed, according to one of the study’s authors, that “the presence of one of the top plaintiffs’ law firms is significantly and positively associated with a higher probability of lawsuits success.”

 

The paper’s authors divided the plaintiffs law firms into groups they denominated “top-10” and “non-top-10” using “various reputation measures” The authors then further divided to top firms into “top-5 firms” based on their “popularity with informed plaintiffs and proven ability to obtain large attorneys’ fees awards” The authors then analyzed the results in the various lawsuits in their litigation database, from which they concluded that the involvement of one of the top five firms was very strongly correlated with what the authors described as lawsuit success. The authors said that these results hold even after controlling for selection bias – that is, the likelihood that the top law firms get to pick the better cases that have higher chances of success.

 

The authors concluded that the top plaintiffs’ law firms achieve the best results because the top firms are significantly more active in prosecuting cases than other plaintiffs firms, which adopt more passive strategies. The top firms’ more active prosecution of the cases is evidenced by the fact that they file more documents in their cases and the fact that they “have fewer cases dismissed, win more procedural motions and obtain more substantive settlements.”  The lower tier firms, by contrast, appear to file lawsuits “in hopes of generating a quick settlement and avoiding the expense of trial,” with the settlements of the type that “many times are believed to profit the law firms more than their clients.”

 

As one of the authors quoted in the Vanderbilt web site article puts it, “not all plaintiffs’ law firms are alike and lawmakers, judges and regulators should act accordingly.” The authors’ research, they state, should give courts “guidance about the appropriate method for selecting lead counsel in shareholder class action litigation.”

 

Special thanks to a loyal reader for sending me a link to the Vanderbilt web site.

 

Discussion

The SEC’s statement that its filing of a record number of enforcement actions during the past fiscal year was attributable in part to the agency’s “innovative use of data and statistical tools” is interesting. Since the agency announced the initiation of financial reporting task forces and implementation of data analytic tools to detect indicia of potential accounting fraud (dubbed in the media as “Robocop,”  about which refer here), there has been speculation that these initiatives could lead to an upsurge in enforcement activity. Although the agency’s fiscal year report does not directly link the increase in the number of enforcement actions to these initiatives, the SEC”s press release certainly does suggest that these initiatives represent a significant part of the agency’s enforcement actions during the past year. It seems likely that there will be more of this in the months and years ahead.

 

The SEC report’s emphasis on its actions targeting individuals and gatekeepers is certainly ominous for the interests of this blog’s readers. The agency’s focus on individuals and gatekeepers could, among other things, represent a real threat to the public company officers and directors.

 

The Alix Partners survey report is interesting not just because it documents that many companies are experiencing increased litigation activity and litigation spending, but also because it shows that these developments are not limited just to the more litigious United States. The fact that an even greater percentage of the European respondents to the survey than U.S. respondents reported that their companies were involved in bet-the-company litigation is surprising, and the fact that the European reported that their companies are experiencing increased litigation activity and litigation spending at about exactly the same levels as the U.S. respondents strongly suggests that the forces shaping the litigation environment in the two arenas may be similar — and even perhaps that the natures of the two environments may be converging. If nothing else, it may become harder over time to contend that litigiousness is a curse unique to the U.S. business environment.

 

Finally the academics’ analysis of the plaintiffs’ law firms’ results in merger objection litigation may not be surprising – it is hardly unexpected that top law firms produce better results – but their analysis is nonetheless interesting. If nothing else, their analysis substantiates a point that many of the more prominent plaintiffs’ firms frequently make about how many of the litigation ills of which the business community so frequently complains are the results of the actions of the bottom feeder law firms. The academics’ analysis provides support for the argument that the frivolous lawsuits filed only to try to extract a quick fee are the handiwork of the lower tier law firms. The academics report also provides some support for the arguments that some of the top firms often make, which is that their efforts produce real shareholder value and provide real protection for shareholders. The problem of course is to eliminate the frivolous unproductive litigation without eliminating the lawsuit that produce real benefits for shareholders.