SEC’s Annual Report Highlights Whistleblower Awards

SEC logoWhen Congress created the SEC Whistleblower program in the Dodd-Frank Act, one of the requirements was that the SEC’s Office of the Whistlblower would provide an annual report to Congress. On November 15, 2016, the SEC released its annual whistleblower report for the 2016 fiscal year (which ended September 30, 2016). The report shows that the agency continues to make substantial awards to whistleblowers, with six of the ten largest awards being made in FY 2016. The report also shows that the volume of whistleblower tips to the agency continues to increase as well. A copy of the agency’s FY 2016 report can be found here. Continue Reading

EPL Wage and Hour Exclusion Does Not Bar Coverage for Expense Reimbursement Claim

californiaThe typical employment practices liability insurance policy will contain an exclusion precluding coverage for loss arising from claims brought under wage and hour laws. The question that arises from time to time is whether a particular claim was in brought under the laws for which coverage is precluded. A recent federal court case in California examined whether the wage and hour exclusion in an employer’s EPL policy precluded coverage for the claimants’ claims alleging the employer had failed to reimburse reasonable business expenses, in violation of a California statutory provision. In a November 14, 2016 decision, Southern District of California Judge Ted Moskowitz, applying California law, held that the policy’s wage and hour exclusion did not preclude coverage for the claimants’ unreimbursed business expenses claims, even though the exclusion did bar coverage for the claimants’ other claims. A copy of Judge Moskowitz’s exclusion can be found here. Continue Reading

Carrot and Stick: Incentive Compensation and Compensation Clawbacks

wells fargoOne of the recurrent governance proposals to remedy corporate excesses has been the idea of clawing back the compensation paid to company officials who presided over corporate scandals. Both the Sarbanes Oxley Act and the Dodd-Frank Act included provisions mandating compensation clawbacks for corporate executives at companies that restate their financial statements. As Columbia Law School Professor John Coffee details in his November 21, 2016 CLS Blue Sky Blog article entitled “Clawbacks in the Age of Trump” (here), despite these statutory revisions, the use of “extreme incentive compensation” continues to motivate corporate behavior. In order to counter-balance the impact of incentive compensation, Coffee suggests that companies should adopt their own compensation clawback requirements that apply more broadly than the statutory clawback provisions. Continue Reading

Class Action Litigation Developments in France

france1On October 1, 2014, new statutory provisions went into effect in France allowing consumers the means to seek and obtain relief on a class–wide basis. Though these provisions have been in force for over two years now, the use of the class action mechanism has not really caught on. Because the class action procedures have not yet been widely taken up, there have already been at least two revisions of the original provisions adopted that expanded the scope of the original class action model, and further revisions seem likely. In a November 17, 2016 memo entitled “The Implications of the Expanded Scope of the French Class Action System on Potential Liability and Insurance Coverage for Companies Domiciled in and Doing Business in France” (here), Kevin Dreher and Laura Ferry of the Reed Smith law firm take a look at the modified French class action mechanism and examine the mechanism’s implications for companies doing business in France. Continue Reading

The Rise of Collective Shareholder Actions in Europe

Europe-Countries-MapIn numerous recent posts, I have noted the global rise of investor collective actions (refer for example here). These lawsuits, which take a variety of different forms according to the applicable forum laws, have been filed in a number of different countries. Among other regions that have seen a recent rise in this type of litigation is Europe. In an interesting November 16, 2016 publication entitled “Rise of European Shareholder Class Action? (here), AIG Europe takes a look at the recent rise of collective investor actions, noting among other things that these types of actions are “on the rise in Europe” as a result of “a number of converging factors.” Continue Reading

Guest Post: Recent Trends in Interpreting Cyber and Commercial Crime Insurance

David Bergenfeld

In the following guest post, David Bergenfeld, a Senior Associate in D’Amato & Lynch’s Fidelity Bond Practice Group, takes a look at the key judicial decisions during the third quarter of 2016 interpreting cyber and commercial crime insurance policies. I would like to thank David for allowing me to publish his article. 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

Privately-Held Brazilian Mining Company Hit with U.S. Securities Class Action

brazilOn November 14, 2016, in an interesting lawsuit that brings together a number of recent securities litigation trends, a noteholder of Samarco Mineração, S.A. filed a purported securities class action lawsuit in the Southern District of New York against the company and its CEO on behalf of investors who purchased the company’s debt securities. Samarco, a joint venture of mining giants Vale, S.A., and BHP Billiton, owned and operated the Fundão tailings dam that collapsed on November 5, 2015, in what has been called Brazil’s worst-ever environmental disaster. There are a number of interesting features to this new lawsuit, beyond just its relationship to the dam collapse disaster. A copy of the plaintiff’s November 14, 2016 complaint can be found here. Continue Reading

SEC Enforcement Activity Involving Public Companies

SEC logoWhile the confirmation earlier this week that Mary Jo White will step down as SEC Chair at the end of the Obama administration raises interesting questions about the SEC’s possible future direction and priorities, the agency’s public company-related enforcement activities during the last fiscal year provide some very interesting insights about the SEC’s recent priorities. In an interesting November 15, 2016 report entitled “SEC Enforcement Activity Against Public Companies and Their Subsidiaries: Fiscal Year 2016” (here), the NYU Pollack Center for Law & Business and Cornerstone Research take a detailed look the SEC’s enforcement activity during the fiscal year ending on September 30, 2016. The report examines the agency’s record levels of enforcement activity involving public company defendants during the fiscal year. Continue Reading

As Litigation Funding Rises Globally, Important Local Differences Affect its Impact

globe2As I have previously noted on this site, the rise of third-party litigation funding is one of the most significant and potentially consequential development in the global litigation arena. But because of differences in countries’ legal systems, the escalation of litigation funding means and will mean different things in different jurisdictions. In an interesting November 10, 2016 Law 360 article entitled “U.S. vs. The Rest: Litigation Funding’s Local Characteristics” (here, subscription required), Noah Wortman of the Goal Group of Companies and Jeremy Marshall of Bentham Europe Ltd. suggest that the rise of litigation funding has had and will continue to have important consequences in the litigation arena, but those consequences differ and will differ due to important differences in the litigation environment in the various countries. The authors’ comments include some interesting insights into litigation funders’ investment goals. Continue Reading

O.K., America, He Won the Election – Now What?

white houseMany Americans were surprised by the outcome of the recent U.S. Presidential election. As unexpected as the results may have been, the fact is that on January 20, 2017, Donald Trump will be sworn in as the 45th President of the United States. Even among his supporters, there is a great deal of uncertainty about what a Trump presidency will actually mean. Many of the larger questions – foreign and diplomatic affairs, trade plans, military security, economic policy — are more appropriately addressed elsewhere. In this blog post, I lay out some of my thoughts about what Mr. Trump’s election may mean for the business litigation environment. Continue Reading

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