After several quarters in a hard market, the D&O insurance marketplace is now in transition, with important implications for buyers, brokers, and underwriters. On October 11, 2022, I will be participating in a Tuesdays with Lloyd’s seminar with Michelle Comtois of Marsh and Johnathan Tritton of Acrisure London Wholesale. The free 45-minute webinar begins at
Penang
The D&O Diary’s sojourn in Asia continued last week with a visit to Penang, an island along the northwestern coast of peninsular Malaysia. In addition to being an island, Penang (along with a bit of the adjacent mainland) is one of the states in the Malaysian federation. We visited George Town, the state’s colorful and multicultural capital, located on the island’s Northeast. For a few brief days, we enjoyed Penang’s rich, diverse, and interesting sights, sounds, and tastes.
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Singapore, Again. (Finally.)
The D&O Diary is on assignment in Asia this week, with the first stop on the itinerary in the equatorial city state of Singapore. It was great to finally be back in Singapore after a three-year pandemic-caused hiatus. It was also great to see this dynamic attractive city again and to enjoy its many colorful sights and attractions.
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The “What to Watch” Podcast
I hope many readers saw and read my recent post “What to Watch in the World of D&O.” A few days ago I recorded a podcast as part of the Rising Edge Ltd’s podcast series in which I discuss several of the themes raised in the “What to Watch” post. In the podcast recording, I
Updated DOJ Corporate Enforcement Policies Emphasize Individual Accountability
In a September 15, 2022 speech, Deputy Attorney General Lisa Monaco announced new Department of Justice guidelines for prosecutors to use when assessing corporate criminality. Although the new guidelines address several issues, the primary focus of the guidelines is on individual accountability. Monaco emphasized at the outset of her speech that “the Department’s number one priority is individual accountability.” The new guidelines represent a clear signal of the Department’s renewed focus on corporate criminality enforcement. The text of Monaco’s speech can be found here, and the September 15, 2022 DOJ memo outlining the new guidelines can be found here.
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Will Corporate and Securities Litigation Follow SEC Adoption of Climate Disclosure Guidelines?
As I discussed at the time (here), in March 2022, the SEC published proposed climate-related disclosure guidelines. The agency’s proposal is now in the public comment period, and it remains to be seen in what form the guidelines will be put into effect. However, it seems probable that that the guidelines will be implemented in some form, despite concerns expressed in public comments so far. If the rules are put into effect in some form close to the initial proposal, there will be a risk that claimants may seek to rely on the guidelines in connection with future corporate and securities lawsuits. A detailed and interesting September 12, 2022 memo from the Cleary Gottlieb law firm (here) discussed the possibility that the climate change disclosure guidelines could give rise to a host of potential future litigation risks. (Hat tip to the TheCorporateCounsel.net blog for the link to the law firm memo.)
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Capital One Data Breach-Related Securities Suit Dismissed
Readers of this blog know that in recent years, plaintiffs’ lawyers have filed a number of D&O lawsuits against companies that experience cybersecurity-related incidents. Overall, the plaintiffs’ track record on these cases is at best mixed, and a number of high-profile cases have been dismissed. In the latest example of the dismissal of a cybersecurity-related securities suit, the court in the Capital One Financial Corporation data breach-related securities class action lawsuit has granted the defendants’ motion to dismiss. The September 13, 2022 dismissal order in the case can be found here.
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Guest Post: The Second Circuit Creates a Circuit Split on Whistleblower Claim Standards
In the following guest post, Gregory A. Markel, Christopher F. Robertson, and David J. Winkler of the Seyfarth Shaw law firm take a look at the Second Circuit’s August 5, 2022 decision in Murray v. UBS Securities LLC. As the authors discuss, the Second Circuit’s ruling creates a split within the federal judicial circuits on the question of whether or not a SOX whistleblower retaliation claimant must prove retaliatory intent in order to prevail. 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 on topics 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.
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AstraZeneca COVID-19-Related Securities Suit Dismissed
As I have noted in numerous posts on this site, since the initial outbreak of COVID-19 in March 2020, plaintiffs’ lawyers have filed a host of coronavirus-related securities class action lawsuits. As I also noted, the plaintiffs’ track record in these cases has been mixed at best, with a number of the cases being dismissed. In the latest example of the hurdles the plaintiffs are facing in these cases, a federal court has entered an order dismissing the COVID-19 related securities suit that was filed against the pharmaceutical company AstraZeneca relating to the company’s troubled efforts to develop a COVID-19 vaccine. A copy of the September 12, 2022 opinion in the case can be found here.
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Twitter Hit with Cybersecurity-Related Securities Suit Over Whistleblower Allegations
In the midst of its battles with Elon Musk over Musk’s attempt to walk away from his proposed takeover of the company, Twitter was rocked by the news that a whistleblower had sent Congress and federal agencies explosive reports of “major security problems” at the company. According to the news reports, the whistleblower’s disclosure not only detailed privacy and cybersecurity vulnerabilities at Twitter, but also included allegations that company management had misled its own corporate board and government regulators about the vulnerabilities. Among other things, these revelations triggered a Congressional inquiry. And now, a plaintiff shareholder has launched a securities class action lawsuit against the company and several of its executives, based on the whistleblower’s allegations. As discussed below, the complaint has several interesting features.
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