David M. Furbush
David M. Lisi

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 Winthrop Shaw Pittman law firm have updated their prior guest post on the topic of what corporate directors need to know about cybersecurity. I would like to thank David and David for submitting this update. 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 David and David’s update.
Continue Reading Guest Post: SEC Guidance Affirms Need for Board Oversight of Cybersecurity Risks

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 companies. The significance of the litigation activity against biopharma companies, a subset of the overall life sciences sector, was the subject of a detailed and precise analysis in a guest post earlier this week.

There is still the question of the meaning of large volume of litigation involving life sciences companies generally.  According to the latest annual analysis from the Dechert law firm, the number of securities lawsuits filed against life sciences companies in 2017 increased 30% from the previous year, and increased more than 225% from only five years earlier. The law firm’s February 8, 2018 report entitled “Developments in Securities Fraud Class Actions Against U.S. Life Sciences Companies: 2017 Edition” can be found here.
Continue Reading A Detailed Look at 2017 Securities Litigation Involving Life Sciences Companies

Keith B. Daniels, Jr.

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 the EU directive and reviews its implications for affected companies and their insurers. I would like to thank Keith for allowing me to publish his article on my 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 Keith’s article.
Continue Reading Guest Post: Directors Beware: The EU’s General Data Protection Regulation Is Upon Us!

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 complications were definitely involved in a recent case before the Tenth Circuit, in which the appellate court concluded that policy coverage did not extend to the costs MusclePharm incurred in responding to SEC subpoenas issued pursuant to a formal order of investigation. The decision raises a number of important issues, as discussed below. The Tenth Circuit’s October 17, 2017 opinion can be found here.
Continue Reading Tenth Circuit: SEC Subpoenas Issued After Formal Investigative Order Not Covered

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 for further proceedings to determine whether the plaintiff’s allegations met the high court’s standard. On August 15, 2017, the Ninth Circuit issued its ruling in the remanded case that the injury the plaintiff alleged was sufficiently concrete to meet the Supreme Court’s test. This ruling could boost plaintiffs as they seek to resist defendants’ efforts for an early dismissal in cases in which plaintiffs are alleging a statutory violation, such as Fair Credit Reporting Act (FCRA) cases, Telephone Consumer Protection Act cases, and Truth in Lending Act cases. The Ninth Circuit’s opinion can be found here.   
Continue Reading Ninth Circuit’s Standing Ruling in Remanded Spokeo Case Could Boost Plaintiffs

John Stark Reed

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 captured systems. In the following blog post, John Reed Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a comprehensive look that problems involved with making payments in response to a ransomware attack. A version of this article originally appeared on CybersecurityDocket.

I would like to thank John for his willingness to publish his article on my 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 John’s guest post.
Continue Reading Guest Post: Ransomware Payment: Legality, Logistics, Mitigation, and Insurance

sixth circuit1The 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 claims brought against company management by representatives of the creditors or of the bankrupt estate. One recurring dispute of this type is the question of the exclusion’s applicability to claims brought against company management by the company as debtor-in-possession. A recent appellate question considered a variation of this question – that is, whether the exclusion precluded coverage for claims brought against company management by the trustee of a liquidation trust as an assignee of the company as debtor in possession. In a June 20, 2017 opinion (here), the Sixth Circuit (applying Michigan law) held that the exclusion precluded coverage for the liquidation trustee’s claim. The appellate ruling raises some interesting issues, discussed below.
Continue Reading Insured vs. Insured Exclusion Precludes Coverage for Claim Assigned by Debtor in Possession to Liquidation Trustee

stock marketThere 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 finance professor Kathleen Kahle and Ohio State University finance professor René M. Stulz reexamine the question and suggest that in the years since Jensen’s landmark article, there have been “striking changes” in the landscape for American corporations. The relatively few remaining public companies are, in effect, “survivors,” and few “want to join their club,” as new enterprises prefer private equity and other non-public finance sources to the public securities markets. A March 24, 2017 summary of the authors’ paper on the Harvard Law School Forum on Corporate Governance and Financial Regulation can be found here.
Continue Reading Are We Witnessing the Sunset of the U.S. Public Company?

Bernard Sharfman

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 business judgment rule is often presented and understood. Bernie’s guest post is a summary of his longer academic paper on the same topic, which can be found here. This post previously appeared on the Harvard Law School Forum on Corporate Governance and Financial Regulation. I would like to thank Bernie for his willingness to allow me to publish his 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 publish a guest post. Here is Bernie’s guest post.
Continue Reading Guest Post: The Importance of the Business Judgment Rule