Guest Post: Playing the Blame Game: Fiduciary Duty Litigation in Bankruptcy Proceedings


Joseph Swanson


Donald Kirk

An unfortunately frequent part of bankruptcy proceedings is the assertion of claims against the directors and officers of the failed company. In the following guest post, Joseph W. Swanson and Donald R. Kirk of the Carlton Fields law firm take a look at the kinds of claims these officials face, as well as the steps these individuals can take to try to avoid the claims in the first place. I would like to thank Joe and Donald for their willingness to publish their article as a guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Joe and Donald’s article. Continue Reading

Eighth Circuit: Notice Provided During the Policy Period But After Seven Month Delay Not “As Soon as Practicable”

eighth circuitIf an insured give notice of claim to its insurer during the policy period but seven months after a lawsuit is filed, has it provided notice “as soon as practicable” as required under the policy? Not according to a May 25, 2017 decision by the Eighth Circuit. The appellate court, applying Minnesota law, affirmed the district court’s holding that the provision of notice during the policy period but seven months after the lawsuit was filed against the insured did not satisfy the policy’s “as soon as practicable” notice requirement. While the Eighth Circuit’s ruling is consistent with the rulings of other courts on this issue, I still have concerns, as noted below. The Eighth Circuit’s opinion in the case can be found here. Continue Reading

U.S. Securities Laws Apply to OTC Transactions in Daimler’s Sponsored ADRs

daimlerFollowing the U.S. Supreme Court’s June 2010 decision in Morrison v. National Australia Bank (here), the lower federal courts have set about implementing the Morrison decision’s holding that the U.S. securities laws do not apply extraterritorially. One issue that the courts have wrestled with is whether or not the U.S. securities laws apply to over-the-counter (OTC) transactions in the U.S. of a foreign company’s American Depositary Receipts (ADRs). A series of recent cases suggest the courts are closer to having these issues sorted out. Most recently, a May 31, 2017 decision by Central District of California Judge James Otero held, consistently with other recent federal district court decisions, that the U.S. securities laws do apply to OTC transactions in Daimler, A.G.’s sponsored level 1 ADRs.  A copy of Judge Otero’s decision can be found here. Continue Reading

Supreme Court Holds Disgorgement Claims Subject to Five-Year Statute of Limitations

sotomayorOn June 5, 2017, in an opinion written by Justice Sonia Sotomayor for a unanimous court, the U.S. Supreme Court held that the five-year statute of limitations applies to claims for disgorgement imposed as a sanction for violation the federal securities laws. The Court rejected the SEC’s argument that the statute of limitations was not applicable to claims for disgorgement. The decision provides greater certainty about the scope of potential liability for parties facing SEC liability. The decision is also important in light of the other securities law statute of limitations case that remains pending on the Court’s docket. The U.S. Supreme Court’s June 5, 2017 opinion can be found here. Continue Reading

Tallinn, Estonia

066aThe D&O Diary completed its European assignment with a final stop late last week in Tallinn, Estonia’s capital city. With a population of around 440,000, Tallinn is relatively compact. In fact, the population of the entire country of Estonia (with a total land area roughly equal to that of the states of Vermont and New Hampshire, combined) is only about 1.2 million, making it one of the smaller countries in the EU. Though Tallinn is relatively small, it is full of charm and history. Continue Reading


020aThe D&O Diary’s current European assignment continued this past weekend with a visit to Finland’s capital city, Helsinki. With a urban area population of about 1.4 million, Helsinki is a little larger than Oslo, and at about 61 degrees northern latitude, it is a bit further north as well – which means that the sun sets even later this time of year in Helsinki than in Oslo. Also, Helsinki was a bit cooler than Oslo, as much as ten to fifteen degrees cooler each day. Continue Reading

Guest Post: Matching Business Models and Processes with Cybercrime Insurance Programs

david_bergenfeld1In the current world, cyber security is critical for every organization. Cyber insurance is an important part of every organization’s cybersecurity program. In the following guest post, a Senior Associate in D’Amato & Lynch, LLP’s Fidelity Bond Practice Group, examines how business can best match their cyber insurance to their cyber security needs. I would like to thank David for his willingness to allow me to publish his article as a guest post. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is David’s guest post. Continue Reading

May in Norway

207aThe D&O Diary is on assignment in Europe this week, with a first stop in Oslo, Norway’s capital city, located at the northern end of Oslofjord (as shown in the accompanying picture). Oslo is a city in transformation; its urban area population has grown by over one-third since 2000, to over 1 million.  At times during our visit, the city seems like a gigantic construction site. Its location at about 60 degrees northern latitude means that in late May, the sun rises just after 4 am, and the sun doesn’t set until nearly 10:30. The evening twilight lingered until well after midnight. Continue Reading

Guest Post: SEC Enforcement Data: Midyear Review

skarzynski 1In the following guest post, Tammy Yuen and Ted Carleton of the Skarzynski Black law firm review and analyze the May 9, 2017 Cornerstone Research report entitled “SEC Enforcement Activity: Public Companies and Subsidiaries, Midyear FY 2017 Update” (here), which details the SEC’s enforcement activity during the first half of the current fiscal year. I would like to thank Tammy and Ted for their willingness to allow me to publish their article on this site.  I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Tammy and Ted’s guest post. Continue Reading

Is Deal Litigation in Delaware Done?

delawareAs documented on this site (for example, here and here) and elsewhere, deal litigation has been shifting from Delaware Chancery Court to courts in other states and to federal courts. This shift is largely the result of two Delaware court decisions, the Delaware Supreme Court’s 2015 decision in Corwin v. KKR Financial Holdings LLC  (here) and the Delaware Chancery Court’s January 2016 court decision in the In re Trulia Shareholder litigation (here). Though these court decisions are relatively recent, they are already having measurable impact on the amount of litigation in Delaware. Indeed, as detailed in a May 19, 2017 Law 360 article entitled “Delaware Plaintiffs’ Attorneys Fear Exodus of Chancery Deal Suits” (here, subscription required), the effect from these two cases has been sufficiently substantial that plaintiffs’ lawyers active in Delaware are now concerned that the future of deal litigation in Delaware is under threat. Continue Reading