One of the most interesting global legal developments has been the rise in recent years of collective redress mechanisms outside the United States, a phenomenon on which I have commented in the context of collective investor actions. The provision for collective or representative actions has expanded in a number of other contexts as well, including in particular in the consumer context. On April 11, 2018, the European Commission introduced a proposal – as part of what it called a “New Deal for Consumers” – that would introduce a European collective redress right for consumers. This proposed collective action mechanism is subject to a number of procedural protections. Nevertheless, the proposal, if adopted, would represent a significant advance in the development of collective redress mechanisms and rights in Europe. The European Commission’s April 11, 2018 press release about the proposal can be found here.
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Sexual Misconduct and D&O Claims
The fallout from the current wave of revelations sexual misconduct involving media figures, politicians, and corporate executives has included, among other things, a rash of D&O claims – including, for example, claims against the boards of 21st Century Fox and Wynn Resorts. An interesting recent scholarly paper takes a detailed look at D&O claims arising out of allegations of sexual misconduct, examines the potential bases of liability, and considers the relative social utility of this kind of litigation, as well as the practical implications for corporate boards and their organizations. The March 22, 2018 paper by Daniel Hemel and Dorothy Lund of the University of Chicago Law School and entitled “Sexual Harassment and Corporate Law” can be found here. The authors summarize their paper in an April 9, 2018 post on the CLS Blue Sky Law Blog (here).
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Cryptocurrencies: New Digital Assets, New Legal Issues?
Among the many innovations we have had to confront in a world characterized by rapid technological change is the advent of cryptocurrency, as a social and financial phenomenon. As I have previously noted, the current cryptocurrency craze has also become a legal phenomenon as well, as now nearly a dozen securities class action lawsuits involving cryptocurrency, ICOs, and blockchain technology have been filed just in the last six months or so. The latest of these lawsuits — one involving allegations relating to an Italian cryptocurrency exchange operator nicknamed “The Bomber” and including investor demands for the court to compel a “rescue fork” — may suggest that in addition to technological change, the advent of cryptocurrency could introduce legal changes as well.
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Fewer U.S. Listed Companies – Is That a Problem?
Between 1996 and 2016, the number of U.S. listed companies declined by about 50 percent. There are now fewer U.S. listed companies than there were in 1976. Some observers have raised the alarm about this decline. For example, SEC Chair Jay Clayton in a speech last summer called the decline in the number of U.S. listed companies “a serious issue for our markets and the country.” But before we can decide whether or not the lower number of public companies is a problem, much less what to do about it, we need to take a look at what is happening and why it is happening. A closer look suggests that the situation is more complex than it might appear at first glimpse.
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Ranking the Plaintiffs’ Firms by 2017 Shareholder Recoveries
As I have previously noted (for example here), a number of reports have analyzed the 2017 approved securities class action lawsuit settlements in statistical and numeric terms, such as the aggregate, average, and mean settlement amounts. But what do the 2017 securities suit settlements look like when broken down according to the lead plaintiffs’ firm that negotiated the settlement? An April 4, 2018 study from ISS Securities Class Action Services entitled “The Top 50 of 2017” (here) takes a look at this issue and reports some interesting conclusions, discussed below. The organization’s April 4, 2018 press release can be found here.
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Book Review: Governance and Risk Management in China
It is axiomatic in the current global economy that every business needs to have a China strategy. Most business enterprises are drawn to the world’s most populous country and second-largest economy. But while China represents an attractive business marketplace, it can also in many respects be a perilous place to try to do business, particularly from a regulatory and compliance standpoint. While most businesses may recognize these challenges, many may struggle to try and address the concerns. A new book entitled “Governance, Risk and Compliance Management in China” (here), which I review below, may provide substantial help to companies trying to address compliance concerns arising from doing business in China. Of particular interest to this blog’s readers, the book includes an interesting chapter on D&O insurance issues in China.
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Wisconsin Become First State to Mandate Disclosure of Litigation Funding Arrangements
As the use of third-party litigation funding has become more widespread, one issue that has been debated is whether or not the existence and details of a funding arrangement must be disclosed to the adversarial parties. As I have noted in prior posts, courts have struggled with the question of whether or not funding arrangements must be disclosed under existing discovery rules. A number of proposals providing for mandatory disclosure of litigation funding arrangements have been proposed. Now, Wisconsin has become the first state to adopt a provision requiring the disclosure of litigation funding arrangements. The state’s action is just the latest step in what seems to be a general move toward requiring disclosure.
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Fintech Company Hit with Securities Suit Completed Reg. A+ Offering in December
One of the changes Congress introduced in the Jumpstart our Business Startups (JOBS) Act of 2012 was the creation of a new securities offering exemption for smaller companies. In March 2015, the SEC introduced rules implementing this provision, known as Regulation A+. The track record for Reg. A+ offerings has been mixed, as discussed further below. Recent events involving Longfin Financial, a blockchain fintech company that just completed a Reg. A+ offering in December 2017 highlights many of the questions and concerns about Reg. A+ offerings. Longfin’s share price plunged over 80% after the company announced on Monday that its offering and a subsequent acquisition are the subject of an SEC investigation. Now the company has been hit with a securities class action lawsuit. As discussed below, these recent developments have a number of implications.
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Frequently-Filed FCPA Follow-On Securities Suits Face Formidable Obstacles
As I have often noted (for example, here), a company’s announcement that it is the subject of an FCPA-related investigation frequently leads to the filing of a follow-on civil lawsuit in which investor claimants allege either that the company’s senior officials have violated their oversight duties or that the company’s public disclosure statements were insufficient in some way relating to the alleged misconduct. As I have also noted, these kinds of follow-on lawsuits, while frequently filed, often are unsuccessful.
Both of these aspects of the follow-on civil lawsuit track record are relevant in connection with the wave of litigation that has followed in the wake of the massive anti-bribery investigation in Brazil. Many of the companies caught up in the continuing anti-corruption investigation in Brazil have been hit with follow-on securities suits in the U.S. While there have been noteworthy exceptions, many of these cases have been unsuccessful. Most recently, the defendants’ motion to dismiss was granted in the anti-bribery investigation-related securities class action lawsuit that had been filed against the Brazilian airplane manufacturer Embraer. Southern District of New York Richard M. Berman’s March 30, 2018 opinion granting the motion to dismiss can be found here. The decision is interesting and it highlights many of the challenges claimants face in pursuing these kinds of claims.
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Guest Post: Cybersecurity: The SEC’s Wake-Up Call to Corporate Directors
As I noted in a post at the time, on February 21, 2018, the SEC released its cybersecurity disclosure guidance for publicly traded companies. In the following guest post, David Fontaine, CEO of Kroll, Inc. and its parent, Corporate Risk Holdings, and John Reed Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, take a look at the SEC’s guidance, with a particular focus on what the agency’s statement has to say about the duties of corporate directors. A version of this article originally appeared on The Harvard Law School Forum on Corporate Governance and Financial Regulation (Here). I would like to thank David and John for their willingness to allow 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 David and John’s article.
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