Guest Post: Supreme Court Nominee’s Skeptical View of Securities Litigation, Agency Deference

paul-weiss-large-300x53President Trump’s nomination of Tenth Circuit Justice Neil Gorsuch to fill the Supreme Court seat vacated by the late Justice Antonin Scalia has attracted a great deal of commentary and raised a host of questions about the proposed new Justice’s views on a variety of different subjects. In the following guest post, attorneys from the Paul Weiss law firm take a look at the proposed Justice’s past writings and opinions on securities litigation and agency deference questions. I would like to thank the Paul Weiss attorneys for allowing me to publish their guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is the Paul Weiss attorneys’ guest post. Continue Reading

Insured vs. Insured Exclusion: No Coverage When Claim Includes Both Non-Insured and Insured Claimants

FloridaAs I readers of this blog well know, a frequently recurring D&O insurance question is whether or not the policy’s insured vs. insured exclusion operates to preclude coverage. One of the many issues that can arise under the exclusion is whether or not the exclusion precludes coverage if the underlying claim is brought both by claimants that are insured persons under the policy and persons that are not insured persons. In a January 30, 2017 decision applying Florida law (here), Southern District of Florida Judge Beth Bloom ruled that a condominium association’s D&O insurance policy’s insured vs. insured exclusion barred coverage for the a claim brought by two claimants, one of whom was insured under the policy and one of whom was not. Continue Reading

Cornerstone Research: Securities Lawsuit Filings Rise to Highest Level in 20 Years

cornerstoneAccording to the latest annual securities litigation survey, securities class action lawsuit filings were at “record” levels in 2016. A surge of federal court merger objection lawsuit filings during the year accounted for much of the activity, but even so-called “traditional” securities lawsuit filings were at elevated levels, according to report, which was release jointly by Cornerstone Research and the Stanford Law School Class Action Clearinghouse. The January 31, 2017 report, entitled “Securities Class Action Filings: 2016 Year in Review,” can be found here. Cornerstone Research’s and the Stanford Law School Class Action Clearinghouse’s January 31, 2017 press release can be found here. Continue Reading

Guest Post: D&O Insurance Implications as Deferred Prosecution Agreements Take Off in the U.K.

Mark Sutton1

Mark Sutton

Karen Boto

Karen Boto

On January 17, 2017, the U.K.’s Serious Fraud Office announced that it had entered into a significant Deferred Prosecution Agreement (DPA) with Rolls-Royce PLC following its approval by Sir Brian Leveson. The agreement followed an extensive investigation of alleged bribery involving the company’s operations in a number of different countries. The full text of the deferred prosecution agreement can be found here.  In the following guest post, Mark Sutton and Karen Boto of the Clyde & Co law firm take a look at the agreement and examine the agreement’s D&O insurance implications. I would like to thank Mark and Karen for their willingness to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Mark and Karen’s guest post. Continue Reading

Record Setting Securities Suit Filing Pace Accelerates Into New Year

Red arrow on business graphAs the various annual securities suit filing reports have been coming out, it has become clear that federal securities class action lawsuit filings were at record levels in 2016, largely as a result of a rise of merger objection lawsuit filings in federal court. Now that 2017 is well underway, it is clear that the heightened pace of securities suit filing has continued, and arguably even accelerated, in the New Year. Continue Reading

Guest Post: India: Compounding of Offences under Companies Act 2013 – D&O Insurance


Umesh Pratapa

In the Companies Act 2013, India’s parliament incorporated a provision allowing for the “compounding” of offenses. “Compounding” is a way for an accused violator to avoid litigation. It is a settlement process by which the accused pays a fee instead of undergoing prosecution. In the following guest post, Umesh Pratapa takes a look at the Companies Act’s compounding provisions, and examines the question of the availability of D&O for amounts paid in a compounding process. I would like to thank Umesh for his willingness to allow me to publish his article here. 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 Umesh’s guest post. Continue Reading

District Court Adopts First-of-its-Kind Litigation Funding Disclosure Requirement

ndcal1The recent rise of litigation funding, frequently noted on this site, has been accompanied with rising uneasiness, at least in certain quarters, as well as calls for some form of regulation. Litigation funding is in fact subject to regulation in some countries, including those where there is a longer history of third-party litigation financing; in Canada, for instance, it has become an accepted practice that litigation funding must be disclosed and judicially approved. There have been various calls in this country for litigation funding to be regulated, but up until now, now there have been no affirmative steps toward regulation. However, on January 23, 2017, the Northern District of California adopted new rule  — the first of its type — requiring the automatic disclosure of third-party funding agreements in proposed class action lawsuits. Continue Reading

Shareholder Files Data Breach Securities Class Action Lawsuit Against Yahoo

yahooI wouldn’t ordinarily write about the same company or set of circumstances two days in a row, but because of developments following in the wake of the data breaches Yahoo announced last year, the company’s name has come up again. Yesterday, I wrote about the investigation the SEC reportedly is pursuing in connection with Yahoo’s alleged delays in disclosing the data breaches. It turns out that yesterday a plaintiff shareholder also filed a securities class action lawsuit in the Northern District of California against Yahoo and certain of its directors and offices relating the company’s reported data breaches. A copy of the complaint the plaintiff filed on January 24, 2017 can be found here. Continue Reading

Will Yahoo’s Data Breach Reporting Become the Test Case for the SEC’s Cyber Disclosure Guidelines?

yahooEver since the SEC released its cyber security disclosure guidelines in October 2011, commentators (including me) have been speculating whether the agency might try to nab a company whose disclosure practices the agency might use as sort of a test case on the guidelines’ requirements.  It now appears, at least based on media reports, the SEC is investigating Yahoo in what may yet become the long-anticipated test case. According to a front page January 23, 2017 Wall Street Journal article (here), the SEC has opened an investigation looking into Yahoo, Inc.’s disclosures of two massive data breaches the company reported last year. Continue Reading

Book Review: “Take Back Control of Your Cybersecurity Now”

cybersecurity nowThere is little doubt that cybersecurity is one of the most pressing issues in the contemporary corporate, political and economic arena. When, as have seen, cybersecurity has become a critical issue in the U.S. political and electoral processes, it is clear that the consequence and complications associated with cybersecurity have become both acute. Cybersecurity has become a pervasive issue that with political, military, and economic implications. It is also one of the foremost issues – if not the foremost issue – in the corporate risk management environment. In a complex and rapidly changing world, many companies and their senior officials are struggling to deal with cybersecurity issues and their implications. Continue Reading