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

Category Archives: International D & O

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Guest Post: U.S. Long Arm Jurisdiction Creates New Terrorism Headaches for Banks (Among Others!)

Posted in International D & O
In prior posts (most recently here), I have noted the growing problems involved with the increasing willingness of U.S. regulators to exert their regulatory and enforcement authority outside of the U.S. In the following guest post, Francis Kean of Willis examines a recent decision by the United States Court of Appeals for the Second Circuit … Continue Reading

Guest Post: Evolutionary Change in the Liability of an Independent Director in India

Posted in International D & O, Uncategorized
  The recent Satyam scandal and ensuing litigation put the duties of independent directors under scrutiny.  The recently enacted Companies Act of 2013 addressed a number of issues relating to the duties and liabilities of independent directors.  In the following guest post, Burzin Somandy of Somandy & Associates in Mumbai takes a look at the … Continue Reading

Class Action Litigation in Latin America: Where We Are Now, Where We Could Be Headed

Posted in International D & O
Among the features of the U.S. legal system that foreign observers often single out for concern is the availability of class action litigation procedures. The fact is, however, that many countries around the world have adopted some form of class action procedure, at least for consumer-oriented litigation. According to a recent report, Latin America is … Continue Reading

NERA: Canadian Securities Class Action Filings Steady in 2013

Posted in International D & O, Securities Litigation, Uncategorized
There were ten securities class action lawsuits filed in Canada in 2013, the same number as were filed in 2012 and only slightly below the annual average number of 11. 6 filings during the period 2006-2012, according to a February 19, 2014 report from NERA Economic Consulting entitled “Trends in Canadian Securities Class Actions: 2013 … Continue Reading

Guest Post: Addressing D&O Insurance in German Board Members’ and Managing Directors’ Management Services Agreements

Posted in International D & O
A company’s obligations to its directors and officers with respect to the purchase and maintenance of D&O insurance is a topic of ongoing interest and concern for the individuals involved. In the following Guest Post, Burkhard Fassbach and Thilo Fleck take a look at this topic with a particular focus on the issues involving German … Continue Reading

Kiwi Supreme: Claimants’ “Charge” on D&O Insurance Blocks Payment of Directors’ Defense Costs

Posted in D & O Insurance, International D & O
In a December 23, 2013 ruling that will be surprising and unwelcome to D&O insurers and their insureds in New Zealand (and perhaps elsewhere) , the New Zealand Supreme Court has reversed the holding of an intermediate appellate court and ruled that, by operation of a statutory “charge” on insurance in favor of third party … Continue Reading

The Brazilian Clean Companies Act

Posted in International D & O
For those of you looking ahead to 2014, one date you will want to note on your calendar is January 29, 2014. That is the effective date of the Brazilian Clean Companies Act, a new anti-bribery statute that signals Brazil’s intention to crack down on corruption. The Act represents an operational and compliance challenge for … Continue Reading

Ontario Securities Suit Claimants Denied Leave to Proceed

Posted in International D & O
Shareholder claimants seeking to pursue a misrepresentation claim under the Ontario Securities Act must obtain leave of court to proceed based on a statutory requirement that the plaintiff must show a “reasonable possibility that the action will be resolved at trial in favor of the plaintiff.” Ontario’s courts agree that this requirement sets a “low … Continue Reading

Canadian Courts Struggle With Jurisdictional Issues in Securities Suits

Posted in International D & O
The question of when domestic securities laws provide remedies for investors who purchased their shares in foreign companies on foreign exchanges vexed U.S. courts for years until the U.S. Supreme Court sorted out the issues in Morrison v. National Australia Bank. But while the U.S. courts now have the  bright line standards of the Morrison … Continue Reading

Emerging Global Regulatory Enforcement and Cross-Border Collaboration

Posted in International D & O
Among two of the most noteworthy recent global regulatory trends are the spread of anticorruption enforcement and the rise in cross-border enforcement collaboration. Both of these trends were evident in the Canadian government’s recent prosecution of the first individual ever convicted after trial under Canada’s equivalent to the FCPA, the Corruption of Foreign Public Officials … Continue Reading

Japanese Securities Litigation Trends: 2000-2012

Posted in International D & O, Securities Litigation
The volume of misstatement-related securities litigation in Japan has “increased dramatically” since the 2004 revisions to Japanese securities laws, according to a June 2013 report from the consulting firm Alix Partners. The report, entitled “Recent Trends in Japanese Securities Litigation: 2000-2012,” can be found here. Even though misstatement-related securities suit filings in Japan were down … Continue Reading

UK Ministry Proposes Expanding Director Liability.

Posted in Director and Officer Liability, International D & O
As part of its scheme to improve corporate transparency and director accountability, a UK government ministry has proposed what UK Business Secretary Vince Cable calls “tough measures” to “give the public greater confidence that irresponsible directors will face consequences for their actions.” These proposals, if adopted, could significantly increase UK corporate directors’ liability exposures in … Continue Reading

Motion to Dismiss Granted in Barclays Libor-Scandal Securities Suit

Posted in International D & O, Libor Scandal
In a May 13, 2013 order (here), Southern District of New York Judge Shira Scheindlin granted defendants’ motion to dismiss the Libor-scandal related securities suit that had been filed against Barclays and two of its former executives following the company’s entry into a massive Libor-related settlement last summer. The suit’s dismissal is just the latest … Continue Reading

Guest Post: The German Two-Tier Corporate Board Structure and its Impact on D&O Insurance Cover

Posted in International D & O
The liabilities of corporate officials are a reflection of the laws of the jurisdiction in which the corporation is chartered. The jurisdiction’s liability provisions in turn have important implications for the structure of the insurance put in place to protect the corporate officials.   In the following guest post, Michael Hendricks (pictured above left), the … Continue Reading

Have Class Actions in Canada “Reached Maturity”?

Posted in International D & O
2012 was “another brisk year of class action activity” in Canada, according to a recent memorandum from the Osler Hoskin & Harcourt law firm entitled “Class Actions in Canada 2012” (here). There were a number of significant class action developments in Canada in 2012, including the “landmark” $117 million E&Y settlement in the Sino-Forest case … Continue Reading

New Zealand Appellate Court Overturns Controversial Decision Blocking D&O Defense Cost Reimbursement

Posted in D & O Insurance, International D & O
An appellate court in New Zealand has “quashed” the controversial ruling of a  lower court ruling that former directors of the defunct Bridgecorp companies are not entitled to defense expense reimbursement under the companies’ D&O insurance policy where the companies’ liquidators have raised (but not yet proven) claims against them exceeding the policy’s limits of … Continue Reading

Class Actions Around the World

Posted in International D & O
Although the class action lawsuit is most often associated with the litigious legal culture in the United States, the fact is that in recent years class action and other group litigation procedures have been expanding around the world. Forces of globalization and the rise of organized groups of aggrieved claimants have encourage a host of … Continue Reading

Ontario Court: Company with Shares Trading Only on Foreign Exchange Subject to Canadian Securities Suit

Posted in International D & O
On March 30, 2012, in a decision that may highlight the extent to which Canadian courts are increasingly willing to enforce securities laws in ways that may have extraterritorial effects, the Ontario Court of Appeals held that the liability regime under the Ontario Securities Act applies to Canadian Solar, a company whose shares trade only … Continue Reading

Canada’s Highest Court Rules Proposed Federal Securities Regulator Unconstitutional

Posted in International D & O
A legislative proposal to create a single federal Canadian securities regulator is unconstitutional, the country’s highest court has ruled. In a December 22, 2011 opinion (here), the Supreme Court of Canada ruled unanimously in an advisory opinion that the Act to create a single, unified securities regulator “as presently drafted” is not a valid exercise … Continue Reading

Kiwi Surprise: D&O Insurance Defense Cost Protection Unavailable When Prospective Claims Exceed Policy Limits

Posted in International D & O
One of the primary purposes for which policyholders purchase D&O insurance is to provide directors and officers with defense cost protection in the event claims are made against them. However, a September 15, 2011 decision by a justice of the New Zealand High Court in Auckland (here) found that former directors of the defunct Bridgecorp … Continue Reading