The D&O Diary’s sojourn in Germany continued last week with travel to Nuremburg and Munich. The same wonderful late spring weather that we had enjoyed the week before in Frankfurt followed us as we continued our travels in Germany.
Continue Reading Munich and Nuremberg
The D&O Diary was on travel in Europe this past week, with an extended sojourn in Germany. It was delightful to be back in Germany after the long pandemic-caused travel interlude. The pleasure of the journey was substantially enhanced by the absolutely terrific weather we enjoyed during our visit.
Continue Reading A Long-Awaited Return to Germany
Regular readers of this blog know that one of the important emerging D&O liability exposures involves issues arising from privacy concerns. There have, in fact, been a number of important privacy-related D&O claims filed, including lawsuits relating to the EU’s General Data Protection Regulation (GDPR). Among the highest profile of these GDPR-related lawsuits is the securities class action lawsuit filed against U.K. based media rating firm Nielsen Holdings. The Nielsen securities suit survived a dismissal motion. Now, in the latest development, the Nielsen suit recently settled for $73 million. The settlement is subject to court approval. A copy of the parties’ stipulation of settlement can be found here.
Continue Reading Nielsen Holdings Settles GDPR-Related Securities Suit
Regular readers know that I post frequently on this site on whistleblower-related topics. However, my discussion of whistleblower-related topics is generally focused on whistleblowing in the U.S. There have been significant recent whistleblower-related developments outside the U.S. For example, and as discussed in detail in the following guest post, a draft whistleblower protection act is now circulating in Germany. If adopted the new act could have significant implications, as discussed below. This guest post was written by Frank Hülsberg, who is a Chartered Accountant and Tax Advisor in Düsseldorf, Partner Advisory and Member of the Executive Board at Grant Thornton AG Wirtschaftsprüfungsgesellschaft in Germany, and Burkhard Fassbach, a D&O-lawyer in private practice in Germany. I would like to thank Frank and Burkhard 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 Frank and Burkhard’s article.
Continue Reading Guest Post: What Board Members Need to Know About the New German Whistleblower Protection Act
As I have noted in prior posts (most recently here), one of the most significant recent securities litigation trends has been the number of filings against post-SPAC-merger publicly traded companies. In the latest of these SPAC-related suit filings, last week a plaintiff shareholder filed a securities class action lawsuit against Arquit Quantum, a U.K.-based cybersecurity firm that merged with a SPAC in September 2021. Though this latest lawsuit is in many ways representative of the emerging SPAC-related securities litigation, it also has some distinct features as well, as discussed further below. A copy of the May 6, 2022 complaint in the case can be found here.
Continue Reading U.K-Based Cybersecurity Firm Hit with SPAC-Related Securities Suit
In my most recent visit to London in October 2021, I was fortunate to be able to visit the Tate Britain museum. The museum has an interesting collection, but by far the most interesting feature of the museum is its very fine gallery of paintings by the English painter, J.M.W. Turner. The size and breadth of the museum’s Turner collection affords an opportunity to see how dramatically Turner’s artistic approach changed over the course of his long life. Turner began painting rather conventional landscapes, but ended producing unconventional paintings that appear entirely modern. In any event, as a result of spending a very enjoyable morning viewing his paintings, I became interested in learning more about Turner and his art.
Continue Reading Sunday Arts: A Herald of the Modern
The global COVID-19 pandemic is now into its third year and it continues to affect the economy and the business environment. The following guest post takes a look at the pandemic’s continuing impact and reviews the possibility that the ongoing effects could increase the number of corporate insolvencies in the UK. This paper was written by Thomas Harris, a Senior Underwriter in the London D&O team of Berkshire Hathaway Specialty Insurance UK; Ben Barker, head of Executive & Professional Lines Claims, Berkshire Hathaway Specialty Insurance UK; James Wickes, a Partner in RPC’s FI/D&O team in London; and Paul Bagon, a Partner in RPC’s Restructuring & Insolvency team in London. A version of this article was recently published as BHSI /RPC client alerts via their LinkedIn homepages. 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. Here is the authors’ article.
Continue Reading Guest Post: COVID-19 and the Impact on UK Corporate Insolvencies
In the wake of the U.S. Supreme Court’s Cyan decision, corporate defendants faced the risk of wasteful and duplicative federal and state court securities litigation. In order to address this concern, corporate reformers suggested that companies should adopt provisions in their corporate charters designating an exclusive federal forum for securities litigation. The Delaware Supreme Court upheld the facial validity under Delaware law of federal forum provisions in the Sciabacucchi decision, but the question remained whether the courts in other jurisdictions would enforce the provisions. A number of courts in California and New York did subsequently uphold the provisions, but these were all trial court rulings.
Now, in an important legal development, a California intermediate appellate court has upheld the enforcement of the provisions, the first appellate decision on the issue outside Delaware. The California appellate court’s ruling in the Restoration Robotics case could represent a significant milestone in the development of post-Cyan litigation. A copy of the California appellate court’s April 28, 2022 decision can be found here. An April 29, 2022 memo from the Latham & Watkins law firm about the appellate court’s decision can be found here.
Continue Reading California Appellate Court Upholds and Enforces Federal Forum Provision
If there is one current topic that commands the attention of investors and other corporate stakeholders these days, it is ESG. ESG-related issues have of course previously led to securities suits and other types of D&O claims. However, amidst the current heightened focus on ESG, there is still a great deal of uncertainty about what ESG-related D&O claims might look like.
For that reason, the enforcement action that the SEC filed last week against the Brazilian mining company Vale, S.A. in connection with alleged misrepresentations the company allegedly made before the January 2019 collapse of its Brumadinho dam is noteworthy. Of particular interest to observers focused on ESG concerns is the fact that the SEC specifically alleged that the company “regularly misled local governments, communities, and investors about the safety of the Brumadinho dam through its environmental, social, and governance (ESG) disclosures.” The SEC’s April 28, 2022 press release about the Vale action can be found here. The SEC’s complaint in the action can be found here.
Continue Reading SEC Action Against Brazilian Mining Company Alleges ESG Misrepresentations
While it may or may not be true, as some have said, that “everything is securities fraud,” it certainly does seem to be the case that there is not an event or development that occurs that does not eventually draw a securities lawsuit. For that reason, I was pretty sure that eventually we would see securities litigation relating to the Russian invasion of Ukraine. Well, as it has turned out, at least one securities lawsuit has now been filed based on circumstances relating to the war in Ukraine. Late last week, a plaintiff shareholder filed a securities class action lawsuit against Credit Suisse Group based on allegations concerning the enforcement of economic sanctions imposed on Russian oligarchs in the wake of the Russian invasion. A copy of the plaintiff’s April 29, 2022 complaint can be found here.
Continue Reading First Ukrainian War-Related Securities Suit Filed