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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
Due to the volume of smaller settlements and the absence of any jumbo settlements, the aggregate amount of securities class action lawsuit settlements declined “dramatically” in 2017 compared to the prior year, according to the latest securities suit settlement study from Cornerstone Research. According to the report, which is entitled “Securities Class Action Settlements: 2017 … Continue Reading
As I noted in a post last week, on February 21, the SEC released a statement and guideance for reporting companies with respect to Cybersecurity Disclosure. In light of the statements in the SEC’s new guidance about the responsibility of corporate directors regarding cybersecurity disclosure, David M. Furbush and David M. Lisi of the Pillsbury … Continue Reading
As has been well-documented on this site, 2017 was an extraordinary year for securities class action lawsuit filings, with a record number of new lawsuits filed at a record rate. Among the important contributing factors to the significant volume of securities suit filings during the year was the volume of lawsuits filed against life sciences … Continue Reading
The D&O Diary was in New York last week for the 2018 version of the Professional Liability Underwriting Society’s annual D&O Symposium. It was great to see so many people who had traveled from near and far to attend the event and to see old friends and make new friends.… Continue Reading
The European Union General Data Protection Regulation (GDPR) is scheduled to go into effect in May 2018. This directive has significant implications for any company that offers product or services to EU residents. In the following guest post, Keith B. Daniels, Jr., Esq., an attorney and the founder of CyberCounsel, takes a detailed look at … Continue Reading
As I have frequently noted on this blog (most recently here), a recurring D&O insurance issue is the question of coverage for costs incurredin responding to SEC investigations. This question can be complicated both by the features of the specific SEC investigation involved as well as by the specific wording of key policy provisions. These … Continue Reading
As courts have wrestled with standing issues in a variety of kinds of cases, the central question has been whether or not under the standard the U.S. Supreme Court enunciated in the Spokeo case the plaintiff alleged an injury that is sufficiently “concrete.” The Supreme Court remanded the Spokeo case itself to the Ninth Circuit … Continue Reading
Readers undoubtedly are aware of the recent outbreak of ransomware incidents and the problems they present. The threat of ransomware attacks poses a host of issues, among the most significant of which is whether or not ransomware victims should go ahead and make the demanded ransomware payment as the quickest way to try to recover … Continue Reading
The Insured vs. Insured exclusion is a standard provision found in most D&O insurance policies. As its name implies, the exclusion precludes coverage for claims brought by one insured against another insured. The exclusion is a frequent source of coverage disputes, particularly in the bankruptcy context, due to frequent disagreements over the exclusion’s application to … Continue Reading
There is a long and venerable tradition of predicting the demise of the American public corporation. For example, back in 1989, Harvard Business School Professor Michael Jensen famously questioned whether we were seeing the “eclipse of the public corporation.” In a February 2017 paper entitled “Is the American Public Corporation in Trouble?” (here) University of Arizona … Continue Reading
The business judgment rule is one of the important principles involved when questions of board and director liability are raised. In the following guest post, Bernard Sharfman, an associate fellow of the R Street Institute and a member of the Journal of Corporation Law’s editorial advisory board, takes a look at the way that the … Continue Reading
President Trump’s nomination of Tenth Circuit Justice Neil Gorsuch to fill the Supreme Court seat vacated by the late Justice Antonin Scalia has attracted a great deal of commentary and raised a host of questions about the proposed new Justice’s views on a variety of different subjects. In the following guest post, attorneys from the … Continue Reading
On December 6, 2016, the U.S. Supreme Court issued its opinion in Salman v. United States (here), a case in which the court was asked to consider what is sufficient to establish a “personal benefit” in order to support an insider trading conviction, as I discussed here. In the following guest post, attorneys from the … Continue Reading
Most liability insurance policies have provisions stating that the insured has a duty to cooperate with the insurer in the investigation and defense of a claim. In most claims situation, this requirement is not an issue. From time to time, however, questions arise whether or not the insured has fulfilled its duty to cooperate. Questions … Continue Reading
In the following guest post, David Topol and Jennifer Williams of the Wiley Rein law firm take a look at the Second Circuit’s September 27, 2016 decision in the Vivendi case and in particular at the appellate court’s analysis of two critical issues affecting damages in securities litigation – the price maintenance theory and loss … Continue Reading
The SEC has long made it clear that it intends to protect whistleblowers and to suppress activities it believes will have the effect of discouraging whistleblower activity. The agency recently launched enforcement actions against companies that had incorporated various waivers in employee severance agreements that discouraged employees from reporting possible securities law violations to the … Continue Reading
One of the recurring issues that has arisen as claimants and regulators have pursued cybersecurity-related claims against companies that have experienced a data breach is the question of what type or quantum of claimed injury is sufficient to sustain a claim. This issue has recurred in consumer cybersecurity-related damages actions and it has also arisen … Continue Reading
One of the bedrock principles of our legal system is that criminal liability attaches only to those who act with intent or knowledge – that is, as the legal scholars say, with mens rea (or a guilty mind). The “responsible corporate officer doctrine” sits uneasily with these notions, imposing liability as it does on corporate … Continue Reading
