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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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

Cornerstone Research: Securities Suit Settlement Values Declined “Dramatically” in 2017

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

Guest Post: SEC Guidance Affirms Need for Board Oversight of Cybersecurity Risks

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

A Detailed Look at 2017 Securities Litigation Involving Life Sciences Companies

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

PLUS D&O Symposium 2017     

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

Guest Post: Directors Beware: The EU’s General Data Protection Regulation Is Upon Us!

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

Tenth Circuit: SEC Subpoenas Issued After Formal Investigative Order Not Covered

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

Insured vs. Insured Exclusion Precludes Coverage for Claim Assigned by Debtor in Possession to Liquidation Trustee

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

Are We Witnessing the Sunset of the U.S. Public Company?

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

Guest Post: The Importance of the Business Judgment Rule

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

Guest Post: Supreme Court Nominee’s Skeptical View of Securities Litigation, Agency Deference

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

Thinking About the Duty to Cooperate

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

Vivendi: A Victory for Plaintiffs on the Price Maintenance Theory and on Loss Causation

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 Wants You to Know that It Intends to Protect Whistleblowers’ Rights

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