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Kevin LaCroix

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Kevin M. LaCroix is an attorney and Executive Vice President, RT ProExec, a division of RT Specialty. RT ProExec is an insurance intermediary focused exclusively on management liability issues.

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As I noted last week, President-Elect Donald Trump has indicated his intent to name former SEC Commissioner Paul Atkins as SEC Chair in the upcoming new administration. Atkins’s appointment, as I noted in last week’s post, could mean significant changes to the agency’s regulatory approach and enforcement priorities. Observers and commentators have continued to weigh in on the potential implications of Atkins’s appointment, and, as discussed below, academic commentators have tried to emphasize the importance of monitoring the agency closely under the new administration to ensure that it continues to be able to fulfill its traditional mission.Continue Reading More About the SEC Under the Incoming Presidential Administration

On December 11, 2024, the Fifth Circuit, sitting en banc, and by a vote of 9-8, struck down Nasdaq’s board diversity rules. The full Court’s decision overrules an earlier ruling of a three-judge panel that had upheld the Nasdaq rules.  The en banc panel held that the SEC exceeded its authority when it approved the rules. The court’s ruling, which can be found here, represents the latest blow against corporate DEI initiatives.Continue Reading Fifth Circuit Strikes Down Nasdaq Board Diversity Rules

At the outset of the current U.S. Supreme Court term, corporate and securities law observers and commentators were excited that the Court had agreed to take up two securities law cases that had significant potential to provide insights about securities lawsuit pleading standards and processes. However, as noted here, in November, the court dismissed…

As I have documented on this site, conservative advocacy and legal groups have been pursuing an aggressive ESG backlash campaign. Among other things, these groups’ efforts have caused several high-profile companies to walk back their DEI initiatives. These groups have also pushed for state-level anti-ESG legislation and have also even pursued anti-ESG litigation. The litigation results have been mixed at best, as noted for example here. However, in the ESG-backlash securities lawsuit filed by a conservative advocacy group against Target in the wake of a consumer boycott following the company’s LGBT “Pride Month” campaign, a federal district court has denied the defendants’ motion to dismiss. As discussed below, there are several interesting features of the court’s ruling. A copy of the Court’s December 4, 2024, opinion can be found here.Continue Reading ESG Backlash Securities Suit Against Target Survives Dismissal Motion

As D&O insurance professionals try to assess the potential impact on the industry from Donald Trump’s return to the White House next month, one area of focus has been on the Trump’s appointment powers. This includes, obviously, the President’s authority to appoint judges to the federal judiciary, but in addition involves his power to make appointments to the Presidential cabinet and to the federal agencies. As Trump’s appointments have unfolded over the last few weeks, none looms larger (for now at least) for the D&O arena than the announcement last Wednesday that Trump will nominate former SEC Commissioner Paul Atkins as SEC Chair. This appointment, if confirmed, could result in a significant change of direction at the SEC, which in turn could have important implications for the world of D&O.Continue Reading Trump Selects “Anti-Gensler” for SEC Chair

Tim J. Leech

Recent case law developments in Delaware’s courts underscore the importance for corporate boards to monitor “mission critical” operations at their companies. These developments have important corporate governance implications, as I detailed in a September blog post (here). In the following guest post, Tim J. Leach, FCPA FCA Managing Director Risk Oversight Solutions Inc. takes a deeper look at the corporate governance implications from the recent duty of oversight/duty to monitor case law. I would like to thank Tim for allowing me to publish his 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 Tim’s article.Continue Reading Guest Post: “Mission Critical”: Director Liability Ticking Time Bomb

One of the hot topics in the corporate space over the last several months has been the question whether Delaware corporations should consider reincorporating in another state, such as Texas or Nevada. Much of the discussion in this re-domestication debate has centered on recent controversial decisions out of Delaware’s courts. The ongoing discussion of these issues resurfaced in the last few days with the news that Delaware Chancellor Katherine McCormick had rejected Tesla’s motion for reconsideration of her earlier rejection of Elon Musk’s $55.8 billion pay package.

A recent law review article by Yale Law Professor Jonathan R. Macey addresses the question whether, in light of the recent case law developments in the state’s courts, Delaware corporations will now be “Leaving for Las Vegas.” Professor Macey’s article considers the extent to which recent Delaware case law developments may motivate key Delaware constituents to consider incorporation alternatives. As discussed below, Professor Macey’s article has in turn triggered further discussion of the central questions about the recent output of Delaware’s courts in corporate and securities lawsuits.Continue Reading Will Delaware Corporations Be “Leaving for Las Vegas”?

In recent days, SEC observers have speculated about who the new head of the agency will be in the incoming Trump Administration and what the new leadership might mean for the agency’s regulatory and enforcement agenda. While we await the upcoming changes, it is still worth asking what the agency has been up to from an enforcement standpoint in the most recently completed fiscal year (ended September 30, 2024). The agency’s recently issued enforcement activity report and a separate academic study of the agency’s enforcement activity against public companies and their subsidiaries both reveal some interesting and arguably unexpected information about what the agency has been doing. Among other things, the agency’s report shows that while the agency’s overall enforcement activity levels declined in the most recent fiscal year, the agency’s total recoveries were at record levels – but both of these observations require further discussion as well.Continue Reading SEC’s FY 2024 Enforcement Activity Declined While Total Financial Remedies Surged

ESG has been and remains a serious concern for corporate executives. However, the role that it plays as a part of the corporate risk equation has changed. From a time not that long ago where companies were under pressure to establish their ESG credentials and promote ESG objectives, many companies now face an opposite politically charged backlash, that, among other things, has pushed some companies to walk back their ESG-related initiatives. For example, just this past week Walmart became the latest company to drop its DEI program in response to right-wing pressure, joining similar moves by Ford, Harley-Davidson, and Lowe’s, among others.  

In the latest example of ways that politically-motivated activists are attempting to turn companies’ ESG initiatives against them, last Wednesday a groups of eleven states’ attorneys general led by Texas AG Ken Paxton filed a federal court suit against Blackrock, Vanguard, and State Street, alleging that the three institutional investors conspired to restrict the availability of coal, to the alleged detriment of consumers, and in alleged violation of federal and state antitrust laws. A copy of the Texas AG’s November 27, 2024, press release about the lawsuit can be found here. A copy of the state AGs’ complaint can be found here.Continue Reading State AGs File ESG-Related Antitrust Suit Against Big Institutional Investors

Umesh Pratapa

In the following guest post, Umesh Pratapa takes a look at environmental liability risks under Indian law and consider the D&O insurance implications. Umesh is the Author of the handbook on D&O liability insurance published by Institute of Directors (IOD), India, and Consultant – liability insurance. I would like to thank Umesh for allowing me to publish his article on this site. I welcome guest post submissions from responsible authors on topics of interest to the site’s readers. Please contact me directly if you would like to submit a guest post. Here is Umesh’s article.

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