I recently had a meeting with the board of a publicly traded company. Among the topics I knew that I would be asked to address at the board meeting is the growing risk of cyber liability. In my preparation for the board meeting, I came across a recent article by D&O maven Dan Bailey, a partner in
FDIC: Failed Bank and Failed Bank Litigation Update
The pace of bank closures has slowed to a trickle. There have only been three bank failures so far in 2013 (including one this past Friday evening, involving the Covenant Bank of Chicago, Illinois). But while bank failures have dwindled, the number of failed bank lawsuit filings has surged. On February 15, 2013, the
Big Doings in Big Cases: Merck Settle Securities Suits for $688 Million, Facebook IPO Derivative Suits Dismissed
In what may be the largest settlement ever in securities class action litigation involving a pharmaceutical company, Merck has agreed to a combined settlement of $688 million to settle two related securities class action cases. The company’s February 14, 2013 press release announcing the settlements can be found here.
The lawsuits relate to
NERA Releases 2012 Canadian Securities Class Action Update
Securities class action filings in Canada were down in 2012 compared to 2011’s record number of filings and compared to recent annual averages, according to a February 13, 2013 report from NERA Economic Consulting. The report, which is entitled “Trends in Canadian Securities Class Actions: 2012 Update,” can be found here. NERA’s press release
Takeover Litigation in 2012
Litigation related to M&A activity continued at an “extremely high rate” in 2012, according to the latest research update from Ohio State law professor Steven Davidoff and Notre Dame business professor Matthew Cain. According to the professors’ analysis, presented in their February 1, 2013 paper entitled “Takeover Litigation in 2012” (here), 91.7% of
Failed Bank Directors’ and Officers’ Affirmative Defenses Against the FDIC Stricken
In order to try to defend themselves from claims asserted against them by the FDIC as receiver for a failed bank, the failed bank’s directors and officers often raise affirmative defenses, either based on pre-receivership conduct (as for example, in connection with pre-failure examinations) or post-receivership conduct (as for example in connection with the agency’s
D&O Insurance: Advancing Defense Costs in Bankruptcy
After entity coverage began to be added to the D&O insurance policy a couple of decades ago, a recurring problem in the bankruptcy context was whether or not the D&O policy proceeds were property of the estate under Bankruptcy Code Section 541(a) and subject to the automatic stay under Bankruptcy Code Section 362.
Damning E-mails: Can We Talk?
It is nothing new for seemingly outrageous emails to trigger attention-grabbing claims of wrongdoing. But revelations this past week arguably represent some type of high-water mark, as a cluster of serious allegations were accompanied by a trove of embarrassing excerpts from emails and instant messages. While the latest disclosures provide yet another reminder of the
D&O Insurance: Bank Directors’ Notice of FDIC Failed Bank Suit Held Timely
On February 5, 2013, in a detailed opinion exploring the nuances of a D&O policy’s extended reporting period provisions, Western District of North Carolina Judge Henry Herlong Jr. determined that the directors of the failed Bank of Ashville of Asheville, North Carolina timely provided their D&O insurer notice of the FDIC’s lawsuit against them as
A Closer Look at the DoJ’s Complaint against McGraw-Hill and S&P
By now you will have heard that the U.S. Department of Justice has filed a securities class action lawsuit against S&P and its corporate parent, McGraw-Hill, about the rating agency’s ratings of collateralized debt obligations as the subprime meltdown unfolded. A copy of the DoJ’s complaint, filed on February 4, 2013 in the Central District of