According to the latest report from the NYU Pollack Center for Law & Business in conjunction with Cornerstone Research, SEC Enforcement Activity against publicly traded companies and their subsidiaries declined in fiscal year 2021 (which ended on September 30, 2021) relative to recent years as well as relative to fiscal year 2020. Monetary recoveries were in aggregate greater in FY 2021 relative to FY 2020. The report, entitled “SEC Enforcement Activity: Public Companies and Subsidiaries: Fiscal Year 2021 Update” can be found here. Cornerstone Research’s November 17, 2021 press release about the report can be found here. Continue Reading Public Company SEC Enforcement Activity Declined in FY 2021

In late 2020 and early 2021, plaintiffs’ lawyers filed as many as ten shareholder derivative suits against the boards of U.S. publicly traded companies alleging that the director defendants violated their legal duties by failing to nominate, elect or appoint African American individuals to their boards. So far, these suits have not fared well. In the latest of these cases to fail to clear the initial pleading hurdles, the court in the board diversity lawsuit filed against Qualcomm’s board has granted the defendants’ motion to dismiss. The decision in the Qualcomm case is noteworthy because, unlike many of the prior dismissal motion rulings, the court addressed the merits of the plaintiff’s Section 14(a) claims. A copy of the court’s November 15, 2021 opinion can be found here. Continue Reading Qualcomm Board Diversity Derivative Suit Dismissed

On November 12, 2021, a Chinese court entered a 2.46-billion-yuan ($385.26 million) verdict in a collective investor action against Kangmei Pharmaceuticals, certain of the company’s executives and the company’s outside auditor. The action was the first of its kind in China. The claimants in the case had alleged that the company had engaged in massive accounting fraud by inflating its revenues, profits, and cash. The verdict in the case follows a July 2021 public hearing in the case. A copy of a November 12, 2021 Global Times article about the verdict can be found here. A November 12, 2021 Reuters article about the verdict can be found here. Continue Reading First-Ever Chinese Collective Investor Action Results in $385 Million Damages Verdict

Just as the coronavirus pandemic itself continues to disrupt economic and social activity, it also continues to generate COVID-related securities class action litigation. In the latest COVID-related securities suit, the vaccine development firm Novavax has been hit with a securities suit pertaining to delays the company has experienced regarding its coronavirus vaccine candidate. As discussed below, this latest lawsuit shares a number of features with other previously filed coronavirus-related securities suit. The November 12, 2021 complaint in the new Novavax lawsuit can be found here. Continue Reading Vaccine Development Firm Hit with COVID-Related Securities Suit

Johann Wolfgang von Goethe is of course one of the great authors of World literature. His oeuvre is vast, varied, and enduring. But during his long lifetime he accomplished so much more beyond mere literary output. Goethe not only wrote such classic works as The Sorrows of Young Werther and Faust, but he also published books and articles on botany, minerology, anatomy, chromatics, and optics. And, while in the service of Duke Karl August of Saxe-Weimar, he acted variously as diplomat, finance minister, military reformer, theater director, road commissioner, university administrator – and perhaps, most importantly, as a collaborator, inspiration, and friend to a long list of the leading authors of the age. Continue Reading Sunday Arts: Life as a Work of Art

Nessim Mezrahi

In the following guest post, Nessim Mezrahi takes a detailed look at the factors driving D&O profitability and the securities class action loss mitigation steps insurers can take to improve profitability. Mezrahi is co-founder and CEO of SAR, a securities class action data analytics and software company. A version of this article previously was published on the PLUS Blog. I would like to thank Nessim 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 Nessim’s article. Continue Reading Guest Post: SCA Loss Mitigation is Critical for D&O Profitability

From the outset of his time in office, SEC Chair Gary Gensler has made it clear that establishing oversight of crypto assets represent one his priorities. In a speech last week, Gensler said that agency will be “very active” in bringing digital currency under its investor protection framework, saying further that the digital assets will not mature if they are not brought under broad regulatory oversight. The regulator’s position is not restricted to mere words; a recent report shows that the agency has indeed been active in asserting its cryptocurrency oversight through enforcement actions. According to a recent report from Cornerstone Research, the agency has bought 19 enforcement actions related to cryptocurrency in the first nine months of 2021. The report, entitled “SEC Cryptocurrency Enforcement: Q3 2021 Update,” can be found here. Continue Reading SEC Enforcement Activity Targets Crypto Assets

In the latest example of claimants seeking to assert the newly revitalized type of claim for breach of the duty of oversight against corporate boards, plaintiff shareholders have filed a derivative lawsuit in Delaware Chancery Court against certain past and current directors of technology company SolarWinds, based on the massive cybersecurity incident involving the company’s software and systems discovered in December 2020. As discussed below, there are several interesting features of this lawsuit in light of recent developments involving claims for alleged breaches of the duty of oversight. A copy of the heavily redacted publicly available version of the plaintiffs’ complaint against the SolarWinds board can be found here. Continue Reading Cybersecurity-Related Breach of the Duty of Oversight Claim Filed Against SolarWinds Board

The number of False Claims Act cases, both those filed by the government and those filed by qui tam relators, is increasing. As a result, potential False Claims Act liability is increasingly important for companies and for their D&O insurers. At the same time, there have been recent court decisions, applying an expansive reading of D&O insurance policies, that have rejected D&O insurers’ attempts to deny coverage for False Claims Act claims against their policyholders. The recent decisions suggest that companies subject to False Claims Act claims potentially may be able to obtain coverage under their D&O insurance policies – and not only for defense expense, but for settlement amounts as well. An October 26, 2021 Insurance Journal article discussing the insurance implications of the growing number of False Claim Act cases can be found here. Continue Reading Increased Numbers of False Claims Act Actions and the D&O Insurance Coverage Implications

In what is one of the largest derivative lawsuit settlements ever, and — according to the statement from one of the co-lead plaintiffs in the case — the largest settlement ever in Delaware of a Caremark/breach of the duty of oversight case, the parties to the Boeing 737 Max Crash shareholder derivative suit in Delaware Chancery Court have agreed to settle the case for a payment of $237.5 million, all of which is to be funded by D&O insurance. As part of the settlement, the company also agreed to adopt several safety and oversight protocols and other corporate governance measures. The settlement is subject to court approval. A copy of the November 5, 2021 statement of the co-lead plaintiff, New York State Comptroller Thomas DiNapoli, about the settlement can be found here. A copy of the parties’ settlement stipulation can be found here. Continue Reading Boeing Air Crash Derivative Lawsuit Settles for $237.5 Million