Although some cybersecurity incident-related securities lawsuits have proven to be successful for plaintiffs (refer, for example, here), many of these lawsuits have not gotten very far. The latest data breach-related securities lawsuit to hit the skids is suit filed last year against Zendesk. As discussed below, on November 9, 2020, Northern District of California Judge Charles Breyer granted the defendants’ motion to dismiss in the Zendesk lawsuit. A copy of Judge Breyer’s order can be found here.
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Corruption Allegations Lead to Serious Follow-On Securities Suit Filings
Corruption and bribery enforcement actions and criminal prosecutions have long been a source of follow-on civil actions, including in particular securities class action lawsuits, as I have noted in numerous prior posts on this site. Two recent securities class action lawsuit filings underscore the significance of this follow-on securities suit filing phenomenon and also highlight the seriousness that many of these kinds of claims can involve.
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Guest Post: Delaware Court Weighs In on the CID Coverage Debate
Regular readers of this blog know that a recurring D&O insurance coverage issue is a question of whether or not the D&O policy provides coverage for various types of regulatory and prosecutorial investigations. In the following guest post, Syed Ahmad and Andrea DeField take a look at a recent Delaware Superior Court decision in which the court held that the D&O policy at issue provides coverage for costs incurred in responding to a civil investigative demand (CID). Syed is a partner and Andrea is an associate at the Hunton Andrews Kurth LLP law firm. I would like to thank Syed and Andrea for allowing me to publish their article 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 Syed and Andrea’s article.
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EEOC Charges Overall Down, But Sexual Harassment Charges Increased
The number of workplace discrimination charges filed with the U.S. Equal Employment Opportunity Commission during Fiscal Year 2018 (which ended September 30, 2018) declined to the lowest level since FY 2006, according the EEOC’s recent statistical release. But while the number of charges overall are down, the number of sexual harassment charges increased, as did the number of sexual harassment lawsuits the agency filed. The increase in sexual harassment actions seems to suggest a greater awareness of these issues in the wake of the #MeToo movement. The EEOC’s enforcement and litigation statistics can be found here. The EEOC’s April 10, 2019 press release about the 2018 FY statistics can be found here.
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Guest Post: Six Avoidable Problems Directors Can Have With Their D&O Insurance
In the following guest post, Paul Ferrillo, a partner in the law firm Greenberg Traurig LLP in New York City, takes a look a six recurring problems that directors can have with their D&O insurance and how to avoid them. I would like to thank Paul 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 blog’s readers. Please contact me directly if you would like to submit an article. Here is Paul’s article.
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Privacy Rights, Liability Exposures, and Potential D&O Claims
One of the most important recent legal and regulatory developments has been the elevation of privacy rights and concerns. Privacy issues are related to but distinct from cybersecurity issues and concerns, because privacy is concerned about more than just keeping data free from unauthorized intrusion. Privacy concerns also involve how data is used and to what kinds of controls the persons whose rights are affected have over the data. As more and more businesses gather and use user data and other potentially sensitive personal information, they will increasingly find themselves grappling with the growing wave of privacy regulation and legislation. Among the many potential exposures these circumstances create for companies and their senior officials is the growing possibility of privacy-related D&O litigation. Indeed, the growing potential for privacy-related claims may be among the most important emerging D&O liability exposures.
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Guest Post: Why Law Firms Should Never Accept Their Fees in Cryptocurrency
As the cryptocurrency phenomenon has developed, one of the interesting parts of the story has been the relationship between the digital currency firms and the lawyers that advise them. In the following guest post, John Reed Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a look at a particular aspect of this lawyer-client relationship, the question of whether the lawyers should accept cryptocurrency in payment of fees. A version of this article originally appeared on Cybersecurity Docket. I would like to thank John for allowing me to publish his article on this site. 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 John’s article.
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D&O Insurance: Court Rejects Insurers’ Argument That Coverage for a DOJ Subpoena is Precluded
As I have noted in numerous prior posts, the question of whether or not a D&O insurance policy provides coverage for a subpoena is a recurring issue. A recent decision out of the Northern District of Illinois denied the relevant D&O insurers’ motion to dismiss a declaratory judgment action in which a policyholder sought coverage for its costs incurred of responding to a DOJ subpoena. The decision is interesting in a number of respects, including in particular the court’s willingness to consider all of the circumstances in concluding that the policy’s Wrongful Act requirement had been met. Northern District of Illinois Judge Manish S. Shah’s May 30, 2018 decision in the case can be found here.
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Scenes of Madrid
The final stop on The D&O Diary’s European assignment last week was a brief sojourn in Madrid, Spain’s capital city. More than 3 million people live in the sprawling city, but the city’s elegant central district is quite compact. Under any conditions, the city’s many boulevards and neighborhoods invite exploration on foot. But with the summer-like sunshine and warmth that prevailed throughout our visit, we were happy to ramble around the city, taking in the sights and enjoying the city’s many charms.
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European Commission Proposes Consumer Collective Redress Mechanism
One of the most interesting global legal developments has been the rise in recent years of collective redress mechanisms outside the United States, a phenomenon on which I have commented in the context of collective investor actions. The provision for collective or representative actions has expanded in a number of other contexts as well, including in particular in the consumer context. On April 11, 2018, the European Commission introduced a proposal – as part of what it called a “New Deal for Consumers” – that would introduce a European collective redress right for consumers. This proposed collective action mechanism is subject to a number of procedural protections. Nevertheless, the proposal, if adopted, would represent a significant advance in the development of collective redress mechanisms and rights in Europe. The European Commission’s April 11, 2018 press release about the proposal can be found here.
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