Shareholders Derivative Litigation

As I have previously noted (here), even though the parties to the consolidated First Energy derivative litigation pending in the Southern District of Ohio reached an agreement to settle the case for a payment of $180 million and the company’s agreement to adopt governance reforms, Northern District of Ohio Judge John Adams has tried to force the plaintiffs’ lawyers to continue to pursue the separate case pending in his court, notwithstanding the settlement. Now, as Alison Frankel reported in a July 15, 2022 post in her On the Case blog (here), Judge Adams has followed through on his threat to boot the plaintiffs’ lawyers and replace them with lawyers that will pursue the case in his court. At first no prospective replacement lawyers appeared. But now, of all things, the famed litigator David Boies has stepped forward to propose his firm as counsel to take over the case in the Northern District of Ohio. All of this comes just as the settlement proceedings in the Southern District of Ohio are about to come to a head.
Continue Reading FirstEnergy Derivative Suit: Cycle of Post-Settlement Weirdness Continues to Unspool

As I detailed in blog posts at the time, the parties to two separate shareholder derivative lawsuits in recent months announced what were among the largest derivative suit settlements – the massive $300 settlement in the Renren derivative lawsuit and the $180 million settlement in the FirstEnergy derivative lawsuit. Though the settlements in each of these two cases were announced to great fanfare, both settlements, for separate reasons, ran into procedural roadblocks. There have now been further developments in each of these cases – the Renren settlement appears to be back on track, while the federal district judge presiding over one of the unconsolidated FirstEnergy derivative suits continues to throw up roadblocks, as discussed below.
Continue Reading Further Developments in Two Recent Jumbo Derivative Lawsuit Settlements

In a series of opinions beginning with the Delaware Supreme Court’s 2019 decision in Marchand v. Barnhill, Delaware courts have sustained a number of so-called “Caremark” claims based on the defendant board members’ breach of their duty of oversight. The courts have denied motions to dismiss in cases where the boards failed to act despite “red flags” alerting them to problems. But what happens if the “red flag” that alerts the board to a problem is a litigation demand letter submitted by a prospective claimant seeking to have the board take up litigation because of problems identified in the letter? In an interesting and troubling May 24, 2022 decision, Vice Chancellor Travis Laster sustained a claim based on these kinds of allegations, accepting what he called a “novel theory” with “admitted trepidation.” Though Laster sought in his opinion to contain some the more “disquieting” implications of this ruling, there is now at least a theoretical basis on which future prospective claimants could argue that a board’s rejection of a litigation demand letter could itself give rise to a separate breach of fiduciary duty claim.
Continue Reading Del. Court Sustains Breach of Fiduciary Duty Claim for Board’s Rejection of Demand Letter

In what is one of the largest ever shareholder derivative settlements, the parties to the Cardinal Health opioid-related shareholder derivative litigation have agreed to settle the suit for $124 million. The Cardinal Health settlement, which is subject to court approval, is the latest massive settlement of opioid-related derivative litigation. It also represents another example of a massive settlement of a breach of the duty of oversight claim. The settlement is to be funded entirely by Cardinal Health’s D&O insurers. A copy of the plaintiffs’ May 25, 2022 unopposed motion for preliminary approval of the settlement can be found here.
Continue Reading Cardinal Health Opioid-Related Derivative Suit Settled for $124 Million

Last month, when I noted in a post that the parties to the FirstEnergy bribery-related derivative litigation had agreed to settle the suits for a payment of $180 million and the company’s agreement to adopt certain governance reforms, I added what I thought at the time was the pro forma observation that the settlement was subject to court approval. The court processes that have followed have been anything but pro forma. As it has turned out, Northern District of Ohio Judge John R. Adams has thrown a huge money-wrench into the works, refusing even to stay the case pending in his court, demanding that plaintiffs’ counsel reveal the names of the individuals that actually paid the supposed bribes, and directing the parties to conduct depositions in the case – a case that the parties have already agreed to settle. The story of the unfolding of these events is well told in two recent posts on Alison Frankel’s On the Case blog, here and here.
Continue Reading The Parties Agreed to a Settlement. Then Things Got Weird.

As readers of this blog know, the various board diversity lawsuits that the plaintiffs’ lawyers filed in late 2020 and early 2021 have uniformly fared poorly in the courts. In the latest dismissal motion ruling in one of these suits, the court in the board diversity suit filed against the directors of Cisco Systems has granted the defendants’ motion to dismiss, albeit without prejudice. The court’s ruling in the Cisco Systems board diversity suit is noteworthy because the court addressed the merits of the plaintiff’s Section 14(a) claims. A copy of the court’s March 1, 2022 dismissal order can be found here.
Continue Reading Board Diversity Suit Against Cisco Systems’ Directors Dismissed

In what is one of the largest shareholder derivative lawsuit settlements ever, the parties to the various FirstEnergy bribery-related derivative lawsuits have reached an agreement to settle the actions for a payment of $180 million and the company’s agreement to adopt a number of corporate governance reforms. The settlement amount is to be funded by D&O insurance. The settlement agreement is subject to court approval. First Energy’s February 10, 2022 announcement of the settlement can be found here. The parties’ February 10, 2022 settlement term sheet can be found here.
Continue Reading FirstEnergy Bribery-Related Derivate Lawsuit Settled for $180 Million

In my round-up of top D&O stories from 2021, I cited the recent rise of U.S. derivative lawsuit filings against the boards of non-U.S. companies as one of the year’s most important D&O liability and insurance stories. I was not alone in identifying this trend as a key development. Allianz identified the threat of these kinds of U.S. derivative suits against non-U.S. companies’ boards as one of the “five D&O mega trends companies should watch for and guard against in 2022.” However, recent developments could be interpreted to suggest that the threat from these kinds of lawsuits may turn out to be something less than feared.

As Alison Frankel noted in a January 4, 2022 post on her On the Case blog (here), “last week, two Manhattan state-court judges called off the revolution.” In the final week of 2021, two New York state judges granted motions to dismiss in separate derivative lawsuits filed in N.Y. courts against the boards of two non-U.S. companies. As discussed below, these two rulings potentially could spell the end for these kinds of lawsuits; at a minimum, it could mean that the threat may turn out to be significantly less than was feared – although as also noted below, there could yet be more of this story to be told.
Continue Reading Do Derivative Suit Dismissals Signal End of Non-U.S. Companies’ U.S. Liability Threat?

In my annual roundup of the issues to watch in the world of D&O that I posted early in the fall, I included in my list of topics the possibility of an increase in antitrust-related enforcement activity. I raised this concern in part because of fears arising from the emerging make-up of the Biden Administration’s antitrust regulatory team. For some readers, it may not have been apparent how these antitrust regulatory concerns might translate into D&O claims activity. Anyone looking for an example of how antitrust enforcement activity can lead to D&O claims will want to review the two shareholder derivative actions filed late last week against certain directors and officers of Alphabet, the parent of Google, as well as against directors and officers of Google itself. The complaints assert breach of fiduciary duty claims against the defendants relating to antitrust enforcement actions that have been filed against Alphabet and against Google by federal and state regulators.
Continue Reading Alphabet’s Board Hit with Antitrust Enforcement Follow-On D&O Lawsuits

In late 2020 and early 2021, plaintiffs’ lawyers filed as many as ten shareholder derivative suits against the boards of U.S. publicly traded companies alleging that the director defendants violated their legal duties by failing to nominate, elect or appoint African American individuals to their boards. So far, these suits have not fared well. In the latest of these cases to fail to clear the initial pleading hurdles, the court in the board diversity lawsuit filed against Qualcomm’s board has granted the defendants’ motion to dismiss. The decision in the Qualcomm case is noteworthy because, unlike many of the prior dismissal motion rulings, the court addressed the merits of the plaintiff’s Section 14(a) claims. A copy of the court’s November 15, 2021 opinion can be found here.
Continue Reading Qualcomm Board Diversity Derivative Suit Dismissed