Thinking About the World Economic Forum’s Global Risks Report

The risk of extreme weather events resulting from climate change and the collective global failure to address climate change represent the most significant current global risks, according to the World Economic Forum’s annual survey of global risks. These kinds of risks represent significant concerns for human safety, social and business disruption, and property loss. As discussed below, and as recent claims have shown, these risks may present management liability concerns as well. The World Economic Forum’s January 15, 2019 Global Risks Report can be found here. Continue Reading

Guest Post: Section 11 Claims May Remain in State Court; How Will Companies and D&O Carriers Respond?

As I noted at the time (here), on December 19, 2018, Delaware Vice Chancellor Later held that under Delaware law, a corporate charter provision specifying that liability actions under Section 11 of the Securities Act of 1934 must be brought in federal court are invalid and ineffective. A copy of Laster’s opinion in Sciabacucchi v. Salzburg (referred to below as the Blue Apron decision) can be found here. In the following guest post, Paul Ferrillo, Robert Horowitz, and Steven Margolin of the Greenberg Traurig law firm take a look at the Blue Apron decision and examine whether or not Congress will act to eliminate concurrent state court jurisdiction for state court claims. The authors also examine the steps companies should take now in light of the possibility of facing litigation in both state and federal court. I would like to thank the authors for their willingness to allow me to publish their 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 an article. Here is the authors’ article. Continue Reading

Guest Post: The Year in Review: 2018 Key D&O Insurance Coverage Decisions

As I have noted in a prior post, 2018 was a very eventful year in the world of directors and officers liability. In the following guest post, written by Kelly S. Johnson, Esq., Claims Counsel, Hiscox USA; Elan Kandel, Esq., Bailey Cavalieri; and Jennifer Lewis, Esq., Bailey Cavalieri, the authors make it clear that 2018 was also a very eventful year for important D&O insurance coverage decisions. I would like to thank the authors for allowing me to publish their 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 the authors’ guest post. Continue Reading

Alphabet Board Hit With Derivative Suits Over Alleged Sexual Misconduct at Google

In the now more than a year since the #MeToo phenomenon first arose, there have been a number of D&O lawsuits filed against companies and their boards in which the plaintiffs allege that company officials either allowed the alleged sexual misconduct to take place or turned a blind eye. In the latest D&O lawsuits to follow in the wake of allegations of sexual misconduct, two Alphabet shareholders have filed separate derivative lawsuits in California state court against the company’s board based on underlying allegations of alleged sexual misconduct at the company’s Google unit. Continue Reading

Here’s Some Good News: No Bank Failures

Want some good news? During calendar year 2018, there were exactly zero bank failures in the United States. Zero. Nil. Nada. Zilch. The last time there were no U.S. bank failures was waaaay back in 2006. Needless to say, a lot has happened since then. But the best part of all is that because of a strong economy, and because of the purifying effects of the financial refiners’ fire, the banking sector is as healthy as it has been in many years. Hugh Son’s January 10, 2019 CNBC article about the U.S. banks’ current healthy state can be found here. Continue Reading

Personal Liability for Corporate California Wage and Hour Violations?

Back in 2015, the California Legislature enacted Labor Law Section 558.1, making an “other person” acting for an employer (defined as any natural person who is owner, director, officer, or managing agent of the employer) who causes the employer to violate the state’s wage and hour laws liable as the employer for the violation. As I noted at the time, this new statutory provision, which created personal liability for individuals for the employer’s wage law obligations, was quite controversial. However, as noted in a December 21, 2018 post on the Sheppard Mullin law firm’s Labor & Employment Law Blog entitled “Managers Beware: Can You Be Held Personally Liable for Wage and Hour Violations” (here), a California appellate court recently confirmed that “even in the absence of this new section, the labor code imposes personal liability” for California minimum wage and overtime violations. Continue Reading

Supreme Court to Consider Whether Negligence Sufficient to State Section 14(e) Tender Offer Claims

On January 4, 2019, the U.S. Supreme Court granted cert in a case that will determine what a plaintiff must plead in order to state a claim for false statements or omissions in connection with a tender offer under Section 14(e) of the Securities Exchange Act of 1934. The Ninth Circuit held in the case at issue that a plaintiff needs only plead negligence, differing on the issue from at least five different federal circuit courts that had previously held that in order to establish a claim a plaintiff must plead that the defendants acted with scienter. The U.S. Supreme Court’s ruling in the case could have a significant impact on merger objection lawsuits filed in connection with tender offers. The Supreme Court’s January 4, 2019 order in Emulex Corporation v. Varjabedien can be found here. Continue Reading

The Top Ten D&O Stories of 2018

The world of directors’ and officers’ liability is always dynamic, but 2018 was a particularly eventful year in the D&O liability arena. The past year’s many developments have significant implications for what may lie ahead in 2019 – and possibly for years to come. I have set out below the Top Ten D&O Stories of 2018, with an eye toward future possibilities. Continue Reading

Securities Suit Filings Continued at Heightened Pace in 2018

The heightened pace of securities class action lawsuit filings continued in 2018, as filing levels remained well above historical patterns, even though the total number of suits dipped very slightly compared to 2017. The total number of filings during 2018 was significantly inflated by the number of federal court merger objection lawsuit filings during the year. However, even disregarding the M&A-related lawsuits, the number of traditional lawsuit filings during 2018 was well above long-term averages. Even more significantly, the litigation rate (that is, the number of suits relative to the number of listed companies) arguably was at all-time record high levels in 2018 compared to prior years, as discussed further below. Continue Reading

Even More Top Ten Travel Lists!

The Louvre Museum, in Paris

As part of a continuing series over the holidays, I have been publishing a series of top ten lists. Last week I published a list of the top ten travel destinations that you might not think of to visit. I also published a separate list of the top ten top travel destinations. Earlier this week, I posted Top Ten Lists for London and Paris. Next week, I will finally get around to publishing the Top Ten D&O Stories of 2018. But today, I am posting several additional top ten lists, just to round out the holiday season before returning to this blog’s more accustomed topics. Continue Reading

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