Tag Archives: directors and officers liability

Data Breach-Related Derivative Lawsuit Filed against Home Depot Directors and Officers

In early 2014, when plaintiffs initiated data breach-related derivative lawsuits against the boards of Target Corp. (here) and Wyndham Worldwide (here), there was some speculation that these cases might be the first of what could become a wave of data-breach related D&O lawsuits. But then the Wyndham Worldwide case was dismissed (refer here) and no … 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

Yet Another Shareholder Suit Alleging Misrepresentation of Environmental Liabilities

At a time when cyber liability and other hot topics dominate the discussion, potential corporate liability arising from environmental disclosures often does not receive the attention it should. However, as I have previously noted on this blog, environmental issues have been and remain an area on which plaintiffs’ lawyer have been focused. A recently filed … Continue Reading

Corporate Loan Provisions Aimed at Proxy Campaigns Trigger D&O Litigation

In the face of increasing investor activism, companies have adopted a number of defensive measures.  Among these measures are a particular type of provision found in many corporate borrowers loan agreements – requiring the company to repay loans before they are due if a majority of the board is ousted – that are drawing increasing … Continue Reading

Will Investors Sue Over the Sony Hack Attack?

 As I noted in my recent rundown of the top D&O stories of 2014, one of the most important developments during the year just finished was the emergence of cyber security as a D&O liability concern. During 2014, plaintiff shareholders launched cyber breach-related derivative lawsuits against the boards of Target and Wyndham (about which refer … Continue Reading

The Top Ten D&O Stories of 2014

The year just ended was an eventful one in the world of directors’ and officers’ liability. Many of the year’s key events represented significant changes in the D&O liability environment. Many of the changes during 2014 have important implications for 2015 – and possibly for years to come. The list of the Top Ten D&O … Continue Reading

Target Directors and Officers Hit with Derivative Suits Based on Data Breach

  I have frequently noted that among the many exposures a company experiencing a data breach could encounter is the possibility of a shareholder suit alleging that the company’s board breached their fiduciary duties by failing to take sufficient steps to protect the company from a breach and its consequences. This possibility has now been … Continue Reading

Private Companies: Risks, Exposures and Insurance

In general, and at least in the United States, executives at public companies don’t need to be convinced that their companies need to have D&O insurance. That is not always true with officials at private companies. Some officials at some private companies – particularly very closely held private companies – are skeptical that they need … Continue Reading

PLUS Professional Liability Regional Symposium in Zurich, October 9-10, 2013

I want to make sure that all readers – particularly those based outside the U.S. — are aware of an upcoming Professional Liability Underwriting Society (PLUS) event.   On October 9-10, 2013, PLUS will be sponsoring an educational and networking event in Zurich. The Professional Liability Regional Symposium will address a wide range of issues … Continue Reading

When the Business Judgment Rule Isn’t Available to Protect Directors

A recurring issue in the litigation the FDIC has filed against the directors and officers of failed banks is the question of whether or not officers – as opposed to directors – can rely on the business judgment rule as a defense under applicable state law. A July 8, 2013 decision by Judge Dean Pregerson applying … Continue Reading

More Thoughts About Corporate Officials’ Defense Cost Advancement Rights

An important accessory to the indemnification rights of directors and officers is their right to have their defense expenses advanced while the claims against them are pending, before their ultimate right to indemnification has been determined.  A frequently recurring issue is the question of when the company may withhold advancement. This issue often arises when … Continue Reading

FDIC Failed Bank Litigation Update

Typically, the FDIC updates the professional liability lawsuits page about once a month, but on June 7, 2013, only about two weeks after its last update, the FDIC again updated the page to include new lawsuit information. According to the information in the latest update, the FDIC has now filed a total of 65 lawsuits … Continue Reading

The JOBS Act After One Year

A year ago, President Obama signed the Jumpstart Our Business Startups (JOBS) Act, a legislative product of rare bipartisan collaboration that was intended to improve employment and make it easier for smaller firms to raise private equity. (For an overview of the Act’s provisions, refer here.) Twelve months later, many of the rules needed to … Continue Reading

Failed Bank Directors’ and Officers’ Affirmative Defenses Against the FDIC Stricken

In order to try to defend themselves from claims asserted against them by the FDIC as receiver for a failed bank, the failed bank’s directors and officers often raise affirmative defenses, either based on pre-receivership conduct (as for example, in connection with pre-failure examinations) or post-receivership conduct (as for example in connection with the agency’s … Continue Reading

InSights: Top Ten D&O Stories of 2012

The past year included dramatic and important developments involving elections, tragedies and natural disasters. While there was nothing in the world of Directors and Officers Liability to match this drama, it was nevertheless an eventful year, with many significant developments. In the latest issue of InSIghts, which can be found here, I take a look … Continue Reading

Following Criminal and SEC Actions, Shareholder Files Securities Suit Against Failed Bank Holding Company Directors and Officers

A shareholder of the holding company for a failed Virginia bank, the Bank of the Commonwealth, has filed a securities class action lawsuit in the Eastern District of Virginia against the holding company and certain of the company’s directors and officers. The lawsuit, filed on January 22, 2013, follows after the July 2012 indictment of … Continue Reading

Guest Post How Officers and Directors of Financial Intermediaries Can Avoid Personal Liability in the Post-Dodd-Frank Market

As the current wave of bank failure litigation has unfolded, the directors and officers of banking institutions rightly have become more concerned about the own potential liability exposures and interested in learning more about how they might be able to reduce their risks and exposures. In the following guest post, Joseph T. Lynyak III , … Continue Reading