One of the frequently recurring D&O insurance coverage issues is the question of whether or not the policyholder provided its insurer with timely notice of claim as required under the policy. This past week several readers sent me a copy of a recent decision in which a federal court denied coverage under a homeowners’ association’s D&O insurance policy because of the association’s untimely notice of claim. In light of the policy language involved, the facts at issue, and the court’s analysis, the court’s decision arguably is unremarkable. However, I found that after I read the decision, I couldn’t stop thinking about what the coverage denial meant for the homeowners’ association and its members. This in turn caused me to reflect upon the problems with late notice coverage disputes in general. After a brief discussion of the recent decision, I have set out below my thoughts about notice defenses.
The decision that triggered these thoughts was Central District of California Judge Jesus G. Bernal’s January 7, 2016 ruling in the coverage action brought by The Citrus Course Homeowners Association (HOA) against its D&O insurer. A copy of Judge Bernal’s decision can be found here.
Continue Reading D&O Insurance: Meditations on Late Notice
We are all used to seeing securities class action lawsuit alleging that the defendants made misrepresentations or omissions in SEC filings, press releases, or in public statements. But how about in a corporate blog post? In a very interesting December 23, 2015 opinion in the Rocket Fuel securities class action lawsuit in which she mostly granted the defendants’ motions to dismiss, Northern District of California Judge 
It is not news that cybersecurity is a serious corporate and domestic security concern. But despite continuing revelations of high-profile data breaches, cybersecurity is an area (OK, one of the many areas) where Congress has been slow to act. While there is still as yet no comprehensive Congressional attempt to tackle cybersecurity as an issue and as a phenomenon, two U.S. senators have now introduced a bipartisan bill that would require publicly traded companies to disclose the cybersecurity expertise or experience that is represented on its board of directors or to disclose what other steps the company has taken to identify or evaluate nominees for this board level cybersecurity position.
In a December 30, 2015 unpublished per curiam opinion, the Fourth Circuit affirmed the district court’s holding that a 2010 lawsuit filed to enforce a judgment was interrelated with the 2006 lawsuit in which the judgment had been entered, and therefore because the later was deemed first made at the time of the earlier lawsuit, the later suit was not covered under the management liability insurance policy in force when the later lawsuit was filed. The Fourth Circuit’s analysis is interesting in light of other recent appellate case law decisions interpreting D&O insurance policy’s interrelatedness provisions. A copy of the Fourth Circuit’s opinion can be found 
It was an eventful year in the world of directors’ and officers’ liability in 2015. Many of the year’s key events significantly changed the D&O liability environment, while other developments during the year could alter the D&O insurance marketplace itself. Many of 2015’s developments have important implications for 2016 – and possibly for years to come. The list of the Top Ten D&O Stories of 2015 is set out below with an eye toward these future possibilities.
The number of securities class action lawsuits filed in 2015 rose to the highest annual level in several years. As detailed below, a number of factors contributed to the increase in securities class action lawsuit filings during the year, including in particular the number of lawsuits filed against IPO companies (owing to the fact that IPO activity has been up in recent years), as well as the elevated number of lawsuits against foreign-domiciled companies.
In May 2007, Sydney-based plaintiffs’ law firm Slater & Gordon 
I am sure that many of you, like me, felt a satisfying wave of schadenfreude when you heard the news last week that biotech bad boy 
As we ease into the final two weeks of the year, it seems likely that just about all of the securities class action lawsuits that are going to be filed this year have already been filed. Sure, one or two more may slip in yet, so it is not quite time for the final analysis of the year’s filings. But with the year just about done, there are some trends that already seem clear. One is the increased numbers of IPO-related securities lawsuits, which I recently noted 
Earlier this year, the SEC rules adopted rules amending Regulation A under the Securities Act to provide companies with an intermediate path between, on the one hand, exempt offerings to qualified investors only, and, on the other hand, a full-blown initial public offering of registered securities. Since the amended rules, known as Regulation A+, took effect, a number of companies have initiated offerings taking advantage of the new rules. Perhaps because of unfamiliarity, many D&O insurance underwriters have reacted very cautiously with regard to these new Reg. A+ offerings. The purpose of this post is to briefly review the background regarding these new offerings and to provide links to relevant resources, in the hope of addressing some of the D&O underwriters’ concerns.