Paul Ferrillo

In the following guest, Paul Ferrillo takes a look at the current deteriorating cyber insurance claims environment and offers his views on the likely impact of the claims developments on the market for cyber insurance in 2021. Paul is a partner in the McDermott, Will & Emery law firm. My thanks to Paul for allowing me to publish his article as a guest post on this site. I welcome guest posts 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 Paul’s article. Continue Reading Guest Post: Be Prepared: Costly Cyber Claims Could Lead to Higher Premiums in 2021

A recent guest post on this site opined that because of the volume of Section 11 litigation being filed in New York state court, New York’s courts “will have a major role in shaping the standards applied in Securities Act litigation going forward.” If that is the case, then the recent New York appellate court ruling reversing a trial court’s dismissal motion denial in a state court Section 11 action could be significant. According to a December 4, 2020 Law360 article (here), the ruling represents the first time the New York appellate division has addressed the merits of a federal ’33 Act claim since the U.S. Supreme Court’s decision in Cyan. The New York appellate court’s December 3, 2020 ruling can be found here. Continue Reading NY Appellate Court Reverses Trial Court’s Dismissal Denial in State Court Securities Suit

On December 4, 2020, in what is according to the SEC its first proceeding charging an issuer for misleading investors about the financial effects of the pandemic on company finances and operations, the SEC entered into a settled Cease and Desist Order with The Cheesecake Factory Incorporated based on the agency’s determinations that the company’s late March and early April statements that it was “operating sustainably” were, without further information, misleading to investors.  The SEC’s December 4, 2020 Cease-and-Desist Order can be found  here, and the agency’s December 4, 2020 press release about the Order can be found here. Continue Reading SEC Charges Cheesecake Factory Over Misleading COVID-Related Disclosures

Nessim Mezrahi

In the following guest post, Nessim Mezrahi takes a look at the Second Circuit’s November 25, 2020 Summary Order in Lea v. TAL Education Group, in which the appellate court reversed the trial court’s dismissal of a securities class action complaint. Many of the plaintiff’s allegations in the complaint were based on matters first raised in a short seller report, a consideration about which Mezrahi has concerns, as discussed below. Mezrahi is co-founder and CEO of SAR, a securities class action data analytics and software company. 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: Second Circuit Ruling Exposes D&Os to Exchange Act Claims Based on Biased Short-Seller Research

In the latest development in what has become a widespread push toward greater board diversity, Nasdaq has filed a proposal with the SEC that would require Nasdaq-listed companies to disclose whether the companies meet Nasdaq-specified board diversity requirements. If approved, the new listing rules would require companies to have at least one female director and one director who is a racial minority or who self-identifies as LGBTQ+, or to provide an explanation why they do not. A copy of Nasdaq’s December 1, 2020 proposal can be found here. Nasdaq’s December 1, 2020 press release concerning the proposal can be found here. Continue Reading Nasdaq Pushes Proposed Board Diversity Listing Rules

The board of directors and several executives of Pinterest have been hit with a shareholder derivative lawsuit brought by an institutional investor alleging that the defendants breached their fiduciary duties by causing or permitting the company to engage in a pattern of race and gender discrimination and retaliation, harming the company’s reputation and workforce. As discussed below, the Pinterest lawsuit is the latest in a series of lawsuits alleging that companies’ boards have violated their duties to their companies or the companies’ shareholders with respect to their oversight of diversity, equity and inclusion issues. Continue Reading Pinterest Board Hit with Derivative Suit Based on Race and Gender Discrimination Allegations

Francis Kean

In the following guest post, Francis Kean takes a look at the new UK Corporate Insolvency and Governance Act and the Act’s potential implications for D&O insurance coverage. Francis is a Partner, Financial Lines, at McGill and Partners. A version of this article previously was published as a McGill client alert. I would like to thank Francis 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 Francis’s article. Continue Reading Guest Post: The New UK Insolvency Act Exposes a Gap in Cover for D&O Insurance

There is no private right of action under the Foreign Corrupt Practices Act. However, FCPA-related matters frequently are the subject of D&O claims, as investors file follow-on civil actions in the wake of news of an FCPA-related investigation or enforcement action. The latest examples of this type of corrupt payment-related follow-on actions are the lawsuits recently filed against Raytheon Technologies Corporation and certain of its directors and offices in the wake of the company’s disclosures of governmental investigations of alleged improper payments. The new lawsuits are representative examples of the ways in which news of corruption investigations can lead to D&O claims against the target companies. Continue Reading Company Hit With D&O Claims Over Improper Payments Investigation

Francis Kean

In the following guest post, Francis Kean takes a look at the possibilities for director prosecutions under the UK Fraud Act and explores the possible D&O insurance implications of future prosecutions. Francis is a Partner, Financial Lines, at McGill and Partners. A version of this article previously was published as a McGill client alert. I would like to thank Francis 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 Francis’s article. Continue Reading Guest Post: Fraud Act Prosecution of Directors: How Likely and What Are The D&O Implications

The SEC’s Office of the Whistleblower received a record 6,911 whistleblower tips during FY 2020, which ended September 30, 2020. The nearly 7,000 reports represent a nearly 33% increase over the number of tips received during the prior fiscal year, according to the Office’s recently released annual report. The Office also made awards representing a record high annual dollar value and to a record annual number of individual award recipients during the fiscal year.  A copy of the November 16, 2020 report can be found here. Continue Reading SEC: Record Number of Whistleblower Tips and Awards During FY 2020