The Palace of Westminster

It is with a great deal of pleasure that I finally get to say this again after a long wait: The D&O Diary was on assignment in London last week. With two COVID vaccinations under my belt and a booster shot to boot, I just decided it was finally time to start traveling again. It was great being back in London and re-acquainting myself with one of my favorite cities. Pandemic precautions made some parts of the trip awkward, but in most other ways it felt almost normal to be traveling again. Continue Reading London Again (Finally)

A Canadian-based deep-sea mining company is the latest firm to be hit with a SPAC-related securities class action lawsuit. The company, which plans to mine the seabed for materials to be used in electric vehicles batteries, merged with a SPAC in September 2021. The company’s share price recently declined following news reports and a short-seller report questioning the company’s financing, licensing, and its claimed sustainability credentials. A copy of the October 28, 2021 complaint can be found here. Continue Reading Deep-Sea Mining Company Hit with SPAC-Related Securities Suit

In a recent post in which I reviewed recent legal developments in Australia, I discussed the growing possibilities for future climate change-related D&O claims. A recent paper highlights the extent of these D&O claim risks in the United States. The October 2021 paper, published by the Commonwealth Climate and Law Initiative and entitled “Fiduciary Duties and Climate and entitled “Fiduciary Duties and Climate Change in the United States,” discusses how evolving understandings of climate change has “changed the relevance of climate change to the governance of corporations,” with important implications for the fiduciary duties of directors and officers. The paper discusses how in the current legal environment in the U.S. a board’s failure to adequately regard climate change-related issues could lead to potential litigation and liability. A copy of the full paper can be found here, and an executive summary of the paper can be found here. Continue Reading Climate Change-Related Breach of Fiduciary Duty Lawsuits?

I have always felt an aversion to the works of Richard Wagner; his massive and melodramatic style, his well-known antisemitism, and the association of many of his operas with Nazi culture, have always seemed reasons enough to avoid his music. It was with some surprise then that, after hearing a fascinating radio interview of The New Yorker’s music critic Alex Ross, I found myself reading with interest and even enthusiasm Ross’s thought-provoking recent book, Wagnerism: Art and Politics in the Shadow of Music. In his book, Ross makes the convincing case that Wagner was and is one of the most important and influential artists of the modern Western era, even if many of his legacies and the use to which his art has been put are malignant. In this vast, intelligent book, Ross demonstrates that the works of a wide array of artists and writers reflect Wagner’s influence. Ross also makes the case that, regardless of how your feel about Wagner, he cannot simply be ignored. Continue Reading Sunday Arts: Wagnerism

An Australian Federal Court class action lawsuit alleging that the Australian Federal Government failed to disclose to investors the climate change risks associated with the government’s sovereign bonds has survived in part an attempt by the government to have the action dismissed. In an October 8, 2021 Judgment (here), a Federal Court of Australia Judge “declined to strike-out” the applicant’s claim based on allegations of misleading or deceptive conduct, while agreeing with the government to “strike-out” others of the applicant’s claims, as discussed below. The court’s rulings in this case arguably represent something of a milestone in the development of climate change-related litigation. Continue Reading Australian Bond Climate Change-Related Disclosure Class Action to Proceed

Jeffrey Lubitz

In the following guest post, Jeffrey Lubitz, Executive Director of ISS Securities Class Action Services, reflects on the 20th anniversary of the Enron scandal and considers the meaning of Enron for institutional investors. A version of this article was also published on the ISS Securities Class Action Services website. I would like to thank Jeff 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 Jeff’s article. Continue Reading Guest Post: 20 Years Later: Why the Enron Scandal Still Matters to Investors

In the latest SPAC-related securities class action lawsuit filing, a plaintiff shareholder has filed a securities class action suit against electric vehicle company Lightning eMotors and certain of its directors and officers, after the company disappointed investors in its first post-SPAC-merger financial release. As discussed below, the Lightning eMotors SPAC-merger transaction was already the subject of a separate, prior Delaware Chancery Court action. A copy of the new federal court securities class action lawsuit complaint can be found here. Continue Reading Electric Vehicle Company Hit with Post-SPAC-Merger Securities Suit

The standard view of the Biden Administration SEC under the leadership of Gary Gensler is that the agency will take a more active enforcement approach than was the case during the prior administration. Two developments in the past few days certainly support this standard view. First, in a speech last week, new SEC Enforcement Division Director Gurbir Grewal indicated that the agency will be requiring admissions of wrongdoing in some enforcement settlements. Second, in a statement the next day, SEC Chair Gensler announced that the agency would revitalize the rulemaking process with respect to rules regarding clawbacks of erroneously awarded compensation. As discussed below, these moves evidence a more aggressive approach to the enforcement of the securities laws. The text of Grewal’s October 13, 2021 speech can be found here. Gensler’s October 14, 2021 statement about the compensation clawback rules can be found here. Continue Reading SEC Moves on Admissions and Compensation Clawbacks Underscore Tougher Enforcement Approach

As readers will recall, in August, the U.S. Chamber of Commerce Institute for Legal Reform (ILR) issued a paper entitled “Courting Confusion: Federal Securities Class Actions Don’t Belong in State Courts,” in which the ILR called for Congress to require that all ’33 Act claims must be brought in federal court and authorize the removal to federal court of ’33 Act liability actions filed in state court, as discussed here. Earlier this month, I recorded an ILR podcast with Andrew Pincus, a partner at the Mayer Brown law firm and the author of the ILR paper, in which Andy and I discuss the Cyan problem; the concerns surrounding federal court securities litigation in state courts; and possible avenues for reform. The podcast, posted on the ILR website on October 12, 2021, can be found here.

Larry Fine

As I noted in a recent post, there recently has been an increase in excessive fee litigation against plan fiduciaries. In the following guest post, Larry Fine takes a look at recent developments in excessive fee litigation, and the implications for the fiduciary liability insurance industry. Larry is the Management Liability Coverage Leader at Willis Towers Watson. I would like to thank Larry 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 Larry’s article. Continue Reading Guest Post: Excessive Fees, Excessive Fiduciary Litigation: A Balanced Look