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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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The D&O Diary is on assignment this week in Europe, with the first stop in the French capital city of Paris. I have been to Paris many times before, and in all kinds of weather. I have been in Paris in the snow, in the rain, and in the sunshine. However, I have never seen Paris as we experienced it over the past few days. We enjoyed a string of sunny, warm, clear, pleasant, summery days — the best word I can think of to describe the weather we enjoyed in Paris is “magical.”Continue Reading Paris in June

Corporate directors and managers have broad responsibilities to oversee their company’s operations. Among the most important items for these executives to monitor are the company’s operational and capital cash flows. In following guest post, H. Stephen Grace, Jr., Suzanne H. Gilbert, S. Lawrence Prendergast, and Joseph P. Montelone, the importance of corporate executives’ oversight of cash flows cannot be overstated – it is, the authors suggest, “the most critical indicator of a company’s ability to survive.” Steve Grace is President and Founder of H.S. Grace & Company, Inc.,; Suzanne Gilbert is a veteran corporate executive with over 30 years of experience with the Interpublic Group of Companies (IPG); Larry Prendergast is Chairman of the Turrell Fund and serves on the advisory boards of several investment funds, including JPMorgan; and Joe Monteleone is a Partner at the Weber Gallagher Simpson Stapleton Fires & Newby LLP law firm. A version of this article previously was published on ABA’s Business Law Today site (here). 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 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. Continue Reading Guest Post: Monitoring Cash Flows: The Board, the CLO, and the CFO

In prior posts, I have noted the growing phenomenon of an anti-ESG backlash. The ESG backlash has taken the form of both legislation and litigation. In the latest examples of ESG backlash litigation, plaintiffs recently have filed two lawsuits against U.S.-based airlines based on the companies’ alleged actions supporting ESG-related initiatives. As discussed below, these latest lawsuits reconfirm that it is not the ESG laggards that are getting hit with ESG-related litigation; rather, the lawsuits are coming against companies that are taking ESG-supportive initiatives.Continue Reading Airlines Hit with ESG-Backlash Lawsuits

In the following guest post, Ed Whitworth, the Head of Directors and Officers Liability at Inigo, and Yera Patel, Head of Casualty & Financial Lines Claims and Analytics for Inigo, summarize the results of a recent survey Inigo conducted of U.S. securities litigation defense counsel. The original of the survey summary previously was published on Inigo’s blog, here. I would like to thank Ed, Yera, and Inigo for allowing me to publish the report summary on this site. I welcome guest post submissions from responsible authors on topics of interest to the blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article. 

**********************Continue Reading Guest Post: Inigo’s 2023 Defense Counsel Survey

The U.S. Supreme Court – in a short, concise, unanimous opinion – has ruled that to assert Section 11 claims against Slack in connection with the company’s June 2019 direct listing, the plaintiff must plead and prove that he purchased shares pursuant to Slack’s allegedly misleading registration statement. Slack had offered both registered and unregistered shares in the direct listing. Even though the plaintiff had not alleged that the shares he purchased were registered shares, the Ninth Circuit had allowed the plaintiff’s claims to stand. The Supreme Court vacated the Ninth Circuit’s order and remanded the case to the district court. At a minimum, the Supreme Court’s ruling means Section 11 plaintiffs must plead that their shares are traceable to the offering. The practical implication of the Court’s ruling may be that the companies conducting direct listings cannot be sued under Section 11. A copy of the Court’s June 1, 2023, opinion can be found here.Continue Reading Even in Direct Listing, Section 11 Plaintiff Must Trace Shares to Registration Statement

Burkhard Fassbach

Among important recent developments in digital currency is the increasing governmental move toward Central Bank Digital Currency (CBDC) and other forms of digital currency. In the following guest post, Burkhard Fassbach takes a detailed look at the rapidly evolving world of CBDCs and what their advent may mean for the D&O insurance industry. Burkhard is a D&O lawyer in private practice in Germany I would like to thank Burkhard 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 blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Burkhard’s article.Continue Reading Guest Post: What D&O Professionals Need to Know About CBDCs and Stablecoins

One of the most topical and potentially most significant recent developments had been the release of several different language-based generative artificial intelligence tools, such as ChatGPT and Google’s Bard. The advent of these tools, their ease of use, and their responsiveness has led to observers and commentators to question whether these tools could drive significant changes in the economy and labor force – among other things, for example, whether these tools might have significant implications for the practice of law. My own experience (discussed here) is that while these tools are interesting, they are no substitute for the research and writing of an experienced lawyer. A recent case, involving an experienced New York lawyer who relied on ChatGPT generated content in a legal brief in a client’s case, demonstrates the dangers involved for anyone who relies on ChatGPT as a substitute for legal research. The case was described in a May 27, 2023, New York Times article entitled “Here’s What Happens When Your Lawyer Uses ChatGPT” (here).Continue Reading AI is Not Quite Ready to Replace the Lawyers

As I have chronicled on this blog (most recently, here), a wave of litigation has followed in the wake of the SPAC boom in late 2020 and early 2021. Since January 1, 2021, over 60 SPAC-related securities class actions have been filed, and there has also been a number of Delaware state court breach of fiduciary duty lawsuits, as well. Although many of these suits have only just been filed and therefore have not yet been subjected to judicial scrutiny, there have been several dismissal motion rulings in a number of these cases. A May 2023 memo from the Jones Day law firm entitled “SPAC Litigation: A Review of Recent Developments” (here) reviews the state of play in the various judicial rulings so far in the SPAC-related cases.  As the memo notes, “many high-profile suits have recently survived motions to dismiss (at least in part), and at least one has been resolved through a significant settlement.”Continue Reading Key SPAC-Related Litigation Developments

ESG has for some time now been a hot button issue for companies. More recently, an anti-ESG backlash has emerged, further complicating the ESG environment for companies and sometimes putting them in a “damned-if-you-do-and damned-if-you-don’t” dilemma. How are companies to navigate these complicated conditions? In a May 23, 2023 post on the Harvard Law School Forum on Corporate Governance entitled “Navigating the Current ESG Landscape: Recommendations for the Board and Management” (here), veteran and respected corporate attorney Martin Lipton of the Wachtell, Lipton law firm provides guidance for companies as they navigate these difficult circumstances and describes the principles companies should follow in trying to make their way on these issues.Continue Reading Navigating the Challenging ESG Landscape

After California’s legislature enacted legislation requiring greater diversity on corporations with corporate offices in California in 2020, the legislation was almost immediately the subject of a court challenge. Now, in a May 15, 2023, ruling, a California federal district court has held that the statute is facially unconstitutional under the Equal Protection Clause and in light of precedent of the U.S. Supreme Court. As discussed below, the court’s decision follows an earlier ruling by a California State court that previously struck down the statute. A copy of the court’s May 15, 2023, opinion can be found here.Continue Reading Federal Court Strikes Down California Board Diversity Statute