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It was great to be in New York on Tuesday and Wednesday this week for the return of the live version of the annual PLUS D&O Symposium. I am certain I was not the only one at the event who was delighted to be among friends and colleagues again and to meet so many new people. In one sense, it was a little awkward for everyone, since it has been so long since any of us have been around other people. But with appropriate precautions in place, everything went well and it was just fine being in a large gathering again. My congrats to the Conference organizers for putting together a great conference and to the PLUS staff for putting on a great show.
Continue Reading Scenes from the PLUS D&O Symposium

As I noted in my recent year-end wrap up, one of the top D&O stories of 2021 was the surge of SPAC-related securities litigation during the year. Most of these SPAC-related lawsuits have only just been filed, and it remains to be seen how they will fare. However, in a development that may represent an early sign concerning the prospects for these cases, on January 14, 2022, a federal district court substantially denied the motion to dismiss in the securities class action lawsuit filed last year against electric vehicle battery developer and manufacturer, QuantumScape. As discussed below, the court’s dismissal motion ruling has several noteworthy features. Northern District of California Judge William H. Orrick’s January 14, 2022 in the QuantumScape case can be found here.
Continue Reading SPAC-Related Securities Suit Dismissal Motion Substantially Denied

As readers will recall, in a September 7, 2021 opinion, Delaware Vice Chancellor Morgan T. Zurn largely denied the defendants’ motion to dismiss in the Boeing Max 737 Shareholder Derivative Litigation. Two months later, the parties in the action settled the case for $237.5 million. In the following guest post, Suzanne H. Gilbert, H. Stephen Grace Jr., and S. Lawrence Prendergast examine Vice Chancellor Zurn’s Boeing opinion and consider its implications for directors’ board responsibilities. Suzanne H. Gilbert is a member of the Board of Advisors of Grace & Co. Consultancy, Inc.; H. Stephen Grace Jr., Ph.D., is President of H.S. Grace & Company, Inc.; and S. Lawrence Prendergast is a member of the Board of Advisors of Grace & Co. Consultancy, Inc. and is Chairman of the Turrell Fund. A version of this article previously was published in the American Bar Association’s Business Law Today. I would like to thank the authors for allowing me to publish their 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 a guest post. The authors’ article follows.
Continue Reading Guest Post: Boeing and the Ongoing Evolution of Director Responsibilities

In the latest example of the kind of SPAC-related litigation that has been such a big part of the securities class action litigation filings this year, space infrastructure company Redwire Corporation, which merged with a publicly traded SPAC in September 2021, was hit with a securities class action lawsuit after the company delayed filing its third-quarter financial results. A copy of the December 17, 2021 complaint can be found here.
Continue Reading SPAC-Related Securities Suit Filed Against Space Gear Company

In early January 2022,  I will be publishing on this site my annual survey of the Top Ten Stories in D&O. On Thursday, January 13, 2022, my colleague Marissa Streckfus and I will be hosting a one-hour webinar on the topic of “The Top Ten D&O Stories of 2021.”  We will be discussing the key…

Trevor Milton, the founder, former Chairman, and largest shareholder of electric vehicle company Nikola Corporation, has been indicted by a federal grand jury in Manhattan. The indictment, which alleges that Milton “engaged in a scheme to defraud investors” by making “deceptive, false, and misleading claims” about “nearly all aspects” of the company’s business, presents criminal charges against Milton for two counts of securities fraud and one count of wire fraud. Milton has also been named as a defendant by the SEC in a separate civil enforcement action accusing Milton of securities fraud. A copy of the indictment can be found here. The S.D.N.Y. U.S. Attorney’s office July 29, 2021 press release about the indictment can be found here. The SEC’s Jcomplaint against Milton can be found here. The SEC’s July 21, 2021 press release about the complaint can be found here.
Continue Reading Nikola Founder Indicted for Securities Fraud, Hit with SEC Enforcement Suit

From the outset, it has been clear that certain issues are going to be top-of-the-agenda items for the Biden Administration, including, for example, climate change, diversity and inclusion, and cybersecurity. In a July 9, 2021 Executive Order (here), the White House made it clear that competition is also going to be a priority as well. The President’s Executive Order sets out a broad range of initiatives that will impact a wide array of industries across the American economy. As discussed below, the new Executive Order has important implications for companies and their executives; among other things, the initiatives proposed in the order could lead to heightened D&O claims risk and exposure.
Continue Reading New Executive Order Means Increased Regulatory Action and Increased Follow-on D&O Claims Risk

The D&O insurance coverage decisions are coming out of the Delaware courts so fast and furious these days that it is getting hard to keep up. Just days before the Delaware Supreme Court issued its high-profile opinion in the Dole Foods case (which I discussed in yesterday’s post), the Delaware Superior Court issued an opinion in the Sycamore Partners case. As may come as no surprise to many industry observers, is favorable to policyholders. The Superior Court held in the Sycamore Partners case  that Delaware law applies to the question whether disgorgement or restitution of ill-gotten gains is uninsurable, and held further that as Delaware has no public policy that would prohibit the insurance, the so-called uninsurability defense does not preclude coverage for the amounts. While I have been critical of several recent Delaware court insurance coverage decisions, I have fewer concerns about the Sycamore Partners decision, as discussed below. A copy of the Superior Court’s February 26, 2021 decision can be found here.
Continue Reading Delaware Court Rejects D&O Insurers’ Uninsurability Defense

2020 was an eventful year in the world of corporate and securities litigation. In the following guest post,  attorneys from the Haynes and Boone LLP law firm take a look at the most important corporate securities litigation developments from 2020. A version of this article previously was published as a Haynes and Boone client alert. I would like to thank the authors for allowing me to publish their article as a guest post 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 the authors’ article.
Continue Reading Guest Post: 2020 Year in Review – Securities Litigation