Archives: Director and Officer Liability

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Heavy Use of Non-GAAP Financial Metrics Represents an Accounting “Red Flag”

Investors, analysts, D&O insurance underwriters, and others responsible for identifying risks among public companies may want to pay close attention to the ways that companies report their financial results. According to a recent analysis, companies that make heavy use of non-GAAP reporting – such as tailored figures like “adjusted net income” and “adjusted operating income” … Continue Reading

Cornerstone Research: Since Trulia, Merger Objection Lawsuit Filings Have Plunged

One of the most distinctive recent developments in the litigation environment has been the rise of merger objection litigation, in which nearly every merger attracted at least one lawsuit challenging the transaction. Many of these cases settled quickly based on the defendants’ agreement to make additional transaction-related disclosures and to pay the plaintiffs’ attorneys’ fees. … Continue Reading

Will the Yates Memo’s Emphasis on Individual Prosecution Have A Counterproductive Impact?

In a September 9, 2015 memo from Deputy Attorney General Sally Yates, the U.S. Department of Justice described a new policy focused on individual accountability for corporate wrongdoing. The keystone of the policy embodied in the Yates memo is that for companies to receive any cooperation credit, they must completely disclosure “all relevant facts about individual misconduct.”  According … Continue Reading

Social Activist CEOs and Their Duties to Shareholders

I am sure many readers saw Monica Langley’s front page Wall Street Journal article earlier this week about Salesforce CEO Marc Benioff and how he uses his position to advance social causes he favors, including most recently, his efforts to combat state legislation concerning transgender bathroom use. The Journal article suggests that Benioff has launched … Continue Reading

The Yates Memo and the Potential Liabilities of Corporate Directors

Last September, amidst considerable fanfare, the U.S. Department of Justice released a new directive – now universally known as the Yates Memo – in which it restated and reinforced the agency’s commitment to targeting corporate executives in cases of corporate wrongdoing. The cornerstone of the agency’s new policies is the specification that in order for … Continue Reading

Guest Post: Seven Lessons Learned from D&O Litigation During the Financial Crisis  

The financial crisis generated a great deal of litigation, much involving the directors and officers of companies affected by the crisis. As the crisis recedes further into the past and as the litigation it generated winds down, it is worth taking a look at what happened to determine what can be learned from the litigation. … Continue Reading

PLUS Webinar This Thursday: “The Top Ten D&O Stories of 2015”

On Thursday, January 21, 2016, I will be participating as the speaker in a Professional Liability Underwriting Society (PLUS) webinar to discuss this past year’s top stories in the world of directors and officers’ liability and insurance. The webinar will be based on my recent blog post, The Top Ten D&O Stories of 2015. This webinar, … Continue Reading

Delaware Courts’ Rejection of Disclosure-Only Settlements Results in Fewer Merger Objection Lawsuit Filings

In my recent survey of the top stories in 2015 in the world of D&O, I noted that one of last year’s most important developments was the signal that several of the judges on the Delaware Court of Chancery sent in a series of rulings that they would not longer routinely approve the kind of … Continue Reading

The Top Ten D&O Stories of 2015

It was an eventful year in the world of directors’ and officers’ liability in 2015. Many of the year’s key events significantly changed the D&O liability environment, while other developments during the year could alter the D&O insurance marketplace itself. Many of 2015’s developments have important implications for 2016 – and possibly for years to … Continue Reading

A Trio of Delaware Decisions Reaffirms Corporate Director Protections

Because the vast majority of U.S. publicly traded companies are incorporated in Delaware, legal developments in Delaware have a particularly important impact on legal standards governing corporate conduct in the U.S. Delaware law is particularly influential with respect to the responsibilities and potential liability exposures of corporate directors. In a series of recent opinions written … Continue Reading

The “Myth” of Outside Director Liability and the Critical Importance of D&O Insurance

In the world of corporate governance, there are a number of common presumptions about board structure and practices. However, according to a recent paper, many of these presumptions may in fact represent corporate governance “myths.” In their September 30, 2015 paper entitled “Seven Myths of Boards of Directors” (here) Stanford Business School Professor David Larcker … Continue Reading

SEC Enforcement Actions Against Outside Directors

From time to time, the SEC reiterates its view of the critical gatekeeper role companies’ outside directors play in safeguarding investors’ interests. Nevertheless, it has been relatively rare for SEC to pursue enforcement actions against outside directors based on an alleged failure to fulfill that role. But while these actions are rare, the agency does … Continue Reading

A Guide to Directors’ Duties and Liabilities in Europe

One of the vestiges of the global financial crisis is that company directors and officers now face more scrutiny than ever. This scrutiny, in turn, has led to a greater liability exposure for corporate officials, as well.  This increased scrutiny and amplified liability exposure applies not only in the U.S., but in other countries, including, … Continue Reading

Thinking About Directors’ Duties and Directors’ Liabilities

When the U.S. Department of Justice recently announced a renewed emphasis on the prosecution of individual directors and officers in instances of corporate misconduct, it raised the possibility that in the future we could see increased numbers of corporate officials prosecuted and convicted for actions they took as representatives of their company. There are times … Continue Reading

Thinking About the Justice Department’s New Policy Directive Targeting Corporate Executives

The U.S. Department of Justice released a directive last week restating and reinforcing the agency’s commitment to targeting corporate executives in cases of corporate wrongdoing. The cornerstone of the agency’s new policies is the specification that in order for a company to qualify for any cooperation credit in connection with a DoJ investigation, the company … Continue Reading

While You Were Out

September is here. Labor Day has come and gone. That can mean only one thing – time to put away the surf boards, bungee cords, fencing foils, pogo sticks, nunchuks, hula hoops, light sabers, and unicycles, and get back to work. Yes, it is time to answer all those emails and return all of those … Continue Reading

A Closer Look at the Massive $148 Million Damages Award Against Dole’ s CEO and General Counsel

A frequent theme these days in the world of corporate and securities litigation is the complaint about merger objection litigation – how virtually every deal announced attracts at least one lawsuit, and how all too often the cases are resolved on the basis of a disclosure-only settlement and the payment of the plaintiffs’ attorneys’ fees, … Continue Reading

The Short-Termism Debate: Are There D&O Liability Issues Involved, Too?

In recent months, commentators from across the political spectrum, largely in response to perceived excesses of activist investors, have called for changes to discourage “short-termism” – that is, the perceived excessive focus of businesses on short-term results rather long-term value creation. Voices ranging all the way from Democratic Presidential candidate Hillary Clinton (about which refer … Continue Reading
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