The U.S. Supreme Court’s June 2024 decision in SEC v. Jarkesy continues to generate follow-on litigation, as regulated entities increasingly challenge the constitutionality of administrative enforcement proceedings. As D&O Diary readers will recall, Jarkesy held that when the SEC seeks civil penalties for securities fraud, claims the Court characterized as “legal in nature,” defendants are entitled to a jury trial under the Seventh Amendment. That ruling is now fueling a growing wave of challenges to state administrative regimes, including a pending appeal in Delaware and a closely watched case before the Arizona Supreme Court.

Continue Reading Recent Jarkesy Developments and D&O Impact

It was 20 years ago this week – on May 6, 2006 – that The D&O Diary published its first blog post. Two decades and literally thousands of blog posts later, The D&O Diary is still at it, still a “Periodic Journal,” still publishing “Items of Interest from the World of Directors and Officers Liability, With Occasional Commentary.”  

Continue Reading The D&O Diary Celebrates Its 20th Anniversary

According to industry reports, education technology companies experienced unprecedented demand during COVID‑19, fueled by remote learning mandates and significant public investment in digital infrastructure. School districts rapidly deployed laptops, software platforms, and immersive learning tools while students were learning remotely. However, now that classrooms have largely returned to in‑person instruction, a growing backlash against ed‑tech has begun to emerge.  In the last month, both the New York Times and Wall Street Journal have reported on the backlash from educators and parents, as well as study results showing the deteriorating effect of technology use in classrooms.

This recent reporting has coincided with certain ed‑tech companies confronting tightening capital markets, operational challenges, and increasing scrutiny from investors and regulators. A complaint filed against zSpace, Inc (zSpace) and its directors and officers on April 23, 2026  (zSpace SCA), may demonstrate how these converging dynamics are now beginning to manifest in securities litigation.  The following will discuss the zSpace SCA allegations, the company’s purported financial pressures, and potential D&O exposure for companies in the ed‑tech industry.

Continue Reading Ed-Tech Backlash and Emerging Securities Litigation Risk

One of the perennial D&O insurance issues involves the question whether “disgorgement” amounts awarded in SEC proceedings represent “penalties” for which insurance coverage is precluded. In the latest example of a case involving these issues, the Delaware Superior Court recently held, in reliance on the statutory provisions defining the SEC’s authority to seek monetary remedies, that the disgorgement amounts and prejudgment interest awarded against the media company Clear Channel are not “penalties” for which coverage is precluded. As discussed below, the court’s analysis of the issues, and its reference to the relevant statutory provisions, is both detailed and instructive.

Continue Reading Del. Court: SEC Disgorgement Not a “Penalty” for Which Coverage is Barred
Evan Bundschuh
Burkhard Fassbach

In the following guest post, Evan Bundschuh and Burkhard Fassbach share and analyze their research into the AI-related Form 10-K disclosures of 26 U.S.-listed public companies, in order to assess the level and significance of public companies’ disclosure statements pertaining to artificial intelligence. Evan is Vice President at GB&A, a retail insurance brokerage in New York, and Burkhard is a D&O lawyer in private practice in Germany. My thanks to Evan and Burkhard for allowing us to publish their article on this site. Here is their article.

Continue Reading Guest Post: Mapping AI Risks: Insights from 2025 10-K Filings

In a rare trial in a securities class action lawsuit, a federal jury has ruled that hedge fund Armistice Capital and certain of its executives had not, as the plaintiffs alleged, committed insider trading or engaged in a pump-and-dump scheme in selling over $200 million in vaccine company Vaxart stock during the COVID-19 pandemic. The jury specifically held that the plaintiffs had not proven that the defendants had engaged in a scheme to defraud and had not proven their insider trading allegations.

Continue Reading Rare Securities Class Action Lawsuit Trial Results in Defense Verdict

The D&O Diary has chronicled mounting stress in the private credit market, underscored by the high-profile collapses of borrowers such as Tricolor and First Brands, and the resulting migration from borrower insolvency into securities litigation against private credit lenders themselves. This escalation highlights sharpening scrutiny from private credit fund investors and public shareholders alike. Exemplifying this trend, Blue Owl Capital Corporation (“Blue Owl”) recently moved to limit redemptions following a historic surge in withdrawal requests. This liquidity strain coincides with putative class actions filed in December 2025 and January 2026 (Blue Owl SCAs) as well as a derivative suit filed on April 27, 2026 (Blue Owl Suit).  

While the Blue Owl SCA alleges that Blue Owl’s leadership concealed pressures on the firm’s direct lending vehicles, the Blue Owl Suit additionally alleges that Blue Owl was acting in a dual capacity when determining illiquid private credit fund valuations.  Below, we discuss the allegations against Blue Owl and the developing D&O and E&O risks for private credit funds.

Continue Reading Blue Owl and the Growing D&O and E&O Risks in Private Credit

Artificial intelligence (AI) is an increasingly important part of business strategy for many companies. As AI has become increasingly important in the corporate world, some commentators suggest that corporate boards not only need AI fluency but in fact need a specialized AI expert.  These suggestions about board expertise may present challenges for many boards, as boards seek to balance a host of competing objectives and interests. An April 15, 2026, memo from the Debevoise & Plimpton law firm (here) takes a pragmantic approach, proposing that the appropriate AI governance framework “will differ for each company and should align with the company’s strategic needs and relationship to technology.”

Continue Reading AI and Corporate Governance: Do Boards Need an AI Expert?

The recent Chapter 11 filing of QVC Group, Inc. (QVC) underscores a trend that has been building over the past year: consumer-facing companies, facing a combination of leverage, shifting consumer behavior, and tightening credit conditions, are increasingly turning to the bankruptcy courts to restructure their obligations. As recent reporting has highlighted, the QVC’s filing follows mounting losses and ongoing pressure on its traditional television-based retail model, as consumers continue to migrate toward digital and social commerce platforms. Against this backdrop, the QVC filing reflects not only company-specific challenges but also broader structural shifts affecting legacy retail and media-driven commerce businesses.

Continue Reading QVC’s Chapter 11 Filing and the Continuing D&O Coverage Challenges in Bankruptcy

In recent months, securities class action litigation patterns involving AI-related disclosures have emerged and developed, as has been documented on this site (most recently, for example, here). There has of course been a great deal of other kinds of AI-related litigation, including lawsuits involving intellectual property issues, privacy and data-collection concerns, discrimination and bias claims, and a variety of different kinds of tort allegations.

In a shareholder derivative lawsuit recently filed against the board of software firm Adobe, these two lines of AI-related litigation crossed; the plaintiff shareholder alleges that the defendants violated their board duties by knowingly permitting the company to train its artificial intelligence tools using material copyrighted by others and in a way that subjected the company to IP-related litigation. As discussed below, the new lawsuit illustrates how the broader range of AI-related litigation can translate into follow-on D&O claims, representing yet another area of AI-related D&O risk.

Continue Reading AI-Related IP Litigation Triggers Follow-On D&O Lawsuit