In my recent roundup of key concerns in the world of directors’ and officers’ liability, I discussed the COVID-19-related litigation phenomenon, commenting that notwithstanding the lapse of time since the coronavirus’s initial outbreak there would likely be further pandemic-related lawsuits yet to come. As if to confirm the suggestion, last week a shareholder plaintiff filed
Sunday Arts: The Kreutzer Sonata
There is a natural tendency to think of musical compositions as autobiographical vehicles – that is, as expressions whose meanings can only be fully appreciated through an understanding of the composer him- or herself and of their lives. (My post last week
With Latest Awards, Total SEC Whistleblower Awards Top $1 Billion
With the latest whistleblower awards to two individuals totaling $114 million (including an award to one individual of $110 million), the total amount awarded under the SEC whistleblower since its first award in 2012 now totals over $1 billion. The pace in the number and size of awards has accelerated significantly in the past year, as the SEC under the Biden Administration had pursued a pro-whistleblower approach. A copy of the SEC’s September 15, 2021 press release about the latest awards can be found here. The agency’s September 15, 2021 order regarding the awards can be found here.
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Guest Post: 5th Circ.: D&O Insurer Must Cover Firm for Social Engineering Losses Despite Professional Services Exclusion
In the following guest post, Geoffrey B. Fehling and Michael S. Levine review and analyze a September 2, 2021 Fifth Circuit decision in which the appellate court reversed a lower court ruling and held that a D&O insurance policy must cover a settlement related to a social engineering loss. Geoffrey is a counsel in Hunton Andrews Kurth’s Boston office and Michael is a partner in the firm’s Washington, D.C. office. 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.
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Guest Post: Heating Up: SPAC Climate Tech Companies and Underwriting Considerations
As I noted in my recent survey of key directors’ and officers’ liability issues, one of the most significant recent developments in the financial markets has been the meteoric rise of special purpose acquisition companies (SPACs). In the following guest post, Sarah Abrams, Director, Management Liability Claims at Markel, takes a look at the SPAC phenomenon and considers the underwriting implications, particularly with respect to climate tech companies. I would like to thank Sarah for allowing me to publish her article as a guest post on this site. I welcome guest post submission 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 Sarah’s article.
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New York State Court Enforces Federal Forum Provision
In an important development affirming the use of federal forum provisions (FFP) to avoid duplicative parallel state court securities lawsuits, a New York state court judge has granted the securities suit defendants’ motion to dismiss based on the FFP in the corporate defendant’s charter. The ruling appears to be the first in New York – indeed, the first outside of California – to enforce an FFP. The New York court’s enforcement of the FFP is a significant step in companies’ efforts to try to avoid the duplicative litigation problems caused by the U.S. Supreme Court’s March 2018 decision in Cyan. A copy of the August 31, 2021 opinion of the New York state court in the Casa Systems case can be found here.
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Sunday Arts: Chopin’s Heart
Welcome to the inaugural installment of the new Sunday Arts series, which I previewed in a recent post. It seemed appropriate to me to devote the first post in this series to my favorite composer, Frédéric Chopin, and to my favorite of all of Chopin’s compositions, his Polonaise in A-Flat Major (Opus 53), written in 1842. It is a great piece of music, and it is also a piece of music with a distinctive connection to the composer’s personal history.
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PLUS Webinar: SPAC and IPO-Related Litigation
On Thursday, September 23, 2021, I will be participating in a Professional Liability Underwriting Society (PLUS) webinar on the topic “SPAC and Related IPO Litigation as it has Evolved & The Current State of SEC Regulation of Disclosure.” This free, one-hour webinar will begin at 2:00 pm EDT. The session will be moderated by Greg
Del. Court Substantially Denies Boeing Duty of Oversight Claim Dismissal Motion
In an important decision that highlights the liability exposures facing corporate boards for claims alleging breaches of the duty of oversight, a Delaware Court of Chancery Vice Chancellor denied in substantial part the defendants’ motion to dismiss in the shareholder derivative suit pending against the board of Boeing relating to the 737 Max air crashes. The court concluded that the plaintiff had sufficiently alleged that the company’s board had breached its oversight obligations by failing to establish safety oversight mechanisms prior to the October 2018 Lion Air crash and ignoring red flags about safety issues after the Lion Air crash and before the March 2019 Ethiopian Airlines crash. Vice-Chancellor Morgan Zurn’s September 7, 2021 opinion can be found here.
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U.S. Supreme Court Suspends Case Addressing Discovery Stay in State Court ’33 Act Suits
The case pending before the U.S. Supreme Court in which the Court was to consider the applicability of the PSLRA’s discovery stay in state court ’33 Act actions has been suspended by the Court at the parties’ request. The parties apparently have reached a tentative settlement of the underlying matter and jointly requested that the Court hold the matter in abeyance, pending the parties’ efforts to complete settlement documentation.
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