Director and Officer Liability

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Sarah Abrams

The recent news that Warren Buffett is stepping down as Berkshire Hathaway’s CEO has drawn the attention of the business pages around the world. But along with Buffett’s move, there have been other CEO-related developments that have attracted the attention of the corporate and securities world, including with respect to Tesla CEO Elon Musk. In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, examines these CEO moves and considers their implications . I would like to thank Sarah for allowing me to publish her article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to the blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Sarah’s article.Continue Reading Guest Post: CEOs and Board Liability 

Burkhard Fassbach

As this blog’s readers know, DEI as a topic has proven to be a high priority under the new Trump administration. The administration’s approach to DEI is important not only for domestic U.S. companies, but also for multinational companies with U.S. subsidiaries. In the following guest post, Burkhard Fassbach examines the DEI-related issues for multinational companies. Burkhard is a D&O lawyer in private practice in Germany. I would like to thank Burkhard for allowing me to publish his article as a 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 Burkhard’s article.Continue Reading Guest Post: What Multinational Corporations Should Know About DEI Risks in the US

Sarah Abrams

The global private credit market has been growing significantly. The rise of private credit raises interesting D&O insurance underwriting concerns. In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, explores these D&O issues. I would like to thank Sarah for allowing me to publish her article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to the blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Sarah’s article.Continue Reading Guest Post: Is Private Credit a Good D&O Risk?

In late March, Delaware enacted S.B. 21, legislation calculated to encourage companies to incorporate in the state, and to stay in the stay, rather than incorporating or reincorporating elsewhere. The bill included measures that could affect corporate litigation in Delaware in ways that may undercut litigation efforts of shareholders (and their lawyers). The plaintiffs’ lawyers apparently are prepared to fight back.

Earlier this week, in a new lawsuit involving Acushnet Holdings Corp., plaintiffs’ lawyers filed a Delaware Chancery Court complaint that, among other things, challenges the constitutionality of S.B. 21. This new suit joins earlier litigation previously filed also challenging S.B. 21’s constitutionality, as discussed below.  A copy of the latest complaint, filed in Chancery Court on May 5, 2025, can be found here. (Hat tip to Anthony Rickey, of Margrave Law LLC, who posted the complaint in a LinkedIn post, here.)Continue Reading Claimants Challenge S.B. 21 Constitutionality

Sarah Abrams

In the wake of the SPAC IPO frenzy in 2021, SPAC activity cratered. However, as detailed in the following guest post from Sarah Abrams, there are signs that SPAC IPOs may be making a comeback, a revival that may raise certain concerns. Sarah is Head of Claims, Baleen Specialty, a division of Bowhead Specialty. I would like to thank Sarah for allowing me to publish her article as a 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 Sarah’s article.Continue Reading Guest Post: SPACs are Back

Earlier this month, when President Trump announced comprehensive tariffs, I speculated about whether or not the administration’s new tariff policy could create an environment that could lead to legal claims against some companies and their directors and offices. While I anticipated (and continue to anticipate) the possibility that there will be tariff-related D&O claims, one possibility I had not considered is the prospect that the new U.S. tariff regime could lead to increased number of tariff-related False Claims Act claims.

In an interesting April 16, 2025, memo, the Nixon Peabody law firm explains how “evasion of tariff requirements, including via false representation of countries of origin and undervaluation or misclassification of goods, creates the risk of substantial liability under the False Claims Act.” The law firm’s memo can be found here. (Hat Tip: John Jenkins of The CorporateCounsel.net Blog, who linked to the law firm memo in his April 23, 2025, post on the blog.)Continue Reading Trump’s Tariffs and the Risk of False Claims Act Liability

Sarah Abrams

Recent reports have brought to light the disturbing story that many companies may have unwittingly hired North Korean operatives as outsourced IT professionals. In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, considers the potential claims exposure that could arise for companies that have hired the North Korean operatives. I would like to thank Sarah Abrams for allowing me to publish her article as a 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 Sarah’s article. Continue Reading Guest Post: North Korean Hiring Exposure

Those trying to gauge what Trump 2.0 means for directors’ and officers’ liability will want to read the Wall Street Journal’s April 13, 2025, article entitled “Trump Administration Retreats from White-Collar Criminal Enforcement” (here). The article contains statements of large law firm partners expressing their anxiety that the administration’s approach to white-collar crime prosecution will mean “significant slowdown” in law firm revenue from criminal defense work. But what may be bad news for law firms could be good news for corporate executives, because the Trump administration’s approach may mean corporate executives could face a reduced risk of criminal prosecution, at least for certain kinds of criminal allegations.Continue Reading Do Trump Admin Policies Mean Reduced Risk of White-Collar Prosecutions?

In late March, in order to try to stop a perceived flood of Delaware companies reincorporating in other states (in particular, Nevada and Texas), the Delaware legislature enacted a significant re-write of important sections of its General Corporation Law (DGCL).  Even though it has just been a few short weeks since the Delaware legislation was enacted, it is not too early to start asking whether the legislative changes will stop Delaware companies from reincorporating in other states. As discussed below, early indications seem to suggest that notwithstanding the legislative changes, at least some Delaware corporations will continue to seek to reincorporate elsewhere.Continue Reading Will Delaware’s Recent Corporate Law Revisions Stop Reincorporations?

In prior posts (most recently here), I have noted the ways the new Trump administration’s policies and actions could affect the D&O liability and insurance arena. In the current rapid-fire environment, with daily developments that threaten to overturn established practices and norms, just trying to keep up – much less understand the significance of events – can be a challenge. In an effort to try to keep the scoreboard up to date, I have noted below some of the most recent key developments and tried to describe their significance for the D&O environment.Continue Reading Trump 2.0: The Latest D&O Update