In a very interesting development and one that will definitely be worth watching, a plaintiff shareholder has launched a shareholder derivative lawsuit in New York state court on behalf of Bayer AG against members of its supervisory board, certain managers, and other defendants, seeking damages from the defendants for alleged violations of their duties under the German Stock Corporations Act. The lawsuit basically alleges that the defendants violated their duties to the company for pursuing and completing Bayer’s disastrous acquisition of Monsanto. The lawsuit raises the question of whether shareholders of a company organized under the laws of and based in Germany can pursue German law claims in New York courts using New York court procedures.  As discussed below, the plaintiff’s attempt to pursue her claims in New York rather than Germany could face significant threshold hurdles. However, if her claims are permitted to go forward, this case could have very significant implications for the potential exposures of other non-U.S. companies to litigation in the U.S.  A copy of the plaintiff’s March 6, 2020 complaint can be found here. Continue Reading Derivative Suit Against Bayer Board Alleging German Law Violations Filed in NY Court

In the following guest post, Dan Gold, Thad Behrens, Kit Addleman, Emily Westridge Black, Carrie L. Huff, Timothy Newman, Matt McGee, and Odean L. Volker of the Haynes and Boone, LLP law firm review the key developments during 2019 in securities litigation and enforcement, including significant securities related decisions by the Supreme Court and federal appellate courts, key developments in SEC enforcement, and significant rulings in state law fiduciary litigation against directors and officers of public companies. A version of this article previously was published as a Haynes and Boone client alert. I would like to thank the authors for their willingness to allow 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. Continue Reading Guest Post: 2019 Securities Litigation: Key Takeaways and Trends

In a post late last week I noted the filing of the first coronavirus-related securities class action lawsuit, commenting at the time that though the lawsuit was the first, it was unlikely to be the last. I did not suspect that the next coronavirus-related securities suit would come quite so quickly – in fact, it appears that the second coronavirus-related suit might actually already been filed then. On March 12, 2020, an Inovio Pharmaceuticals shareholder filed a securities class action lawsuit against the company and its CEO based upon the CEO’s statements about the company’s development of a COVID-19 vaccine. A copy of the Inovio Pharmaceuticals complaint can be found here. Continue Reading Pharma Company Hit with Securities Suit over COVID-19 Vaccine Claims

Perry Granof

It was very shocking and sad to learn this past week of the untimely death of my good friend and industry colleague, Perry Granof. Because Perry was friends with so many in the industry, I thought it would be appropriate for me to post a memorial to him here.  Please also read the many memorials to Perry at the end of this post. Because the way Perry lived his life has so many lessons for all of us, I hope everyone will read this memorial, even those who did not know him. Continue Reading In Memorium: Perry Granof      

After I published a post last week suggesting that there could be D&O claims arising out of the COVID-19 coronavirus outbreak, several people suggested to me that I was being alarmist and expressed deep skepticism about the possibility of coronavirus-related claims. After all, they said, there were no D&O claims filed in connection with the SARS, MERS or Ebola outbreaks. Well, there may well have been no D&O claims related to those prior outbreaks. However, it looks like in this context as in many others, the COVID-19 outbreak is going to be different. On March 12, 2020, a plaintiff shareholder filed a securities class action lawsuit against Norwegian Cruise Line Holdings, Ltd. alleging that the company was employing misleading sales tactics related to the outbreak. A copy of the plaintiff shareholder’s complaint can be found here. Continue Reading Cruise Line Shareholder Files First Coronavirus-Related Securities Suit

As I have detailed in prior posts, U.S. securities class action lawsuit filings remained at historically high levels in 2019. Among the 2019 securities suit filings were significant number of lawsuits filed against non-U.S. companies with U.S. listings. As detailed in a new report from the Dechert law firm, there was an uptick in 2019 the number of U.S. securities lawsuits filed against non-U.S. companies compared with the year prior. The Dechert report also details a number of trends with respect to filings against non-U.S. companies, as well as the trends with respects to dispositive motions in these cases. The March 11, 2020 report can be found here. Continue Reading Non-U.S. Companies with U.S Listings Continue to Face Significant U.S. Securities Suit Exposure

On March 10, 2020, as part of a Professional Liability Underwriting Society (PLUS) series of recorded discussions on the possible professional liability insurance implications of the COVID-19 Coronavirus outbreak, I participated in a short conversation on the viral outbreak’s D&O insurance implications. Joining me for the conversation were my good friends Carl Metzger of the Goodwin Procter law firm and Rob Yellen of Willis Towers Watson. A recording of the brief conversation (less than 30 minutes) can be found on a March 11, 2020 post on the PLUS Blog, here. Upcoming conversations in the PLUS series will address the issues concerning other coverage lines. My prior post about the possible D&O implications of the coronavirus outbreak can be found here.

As previously reported (here), 2019 was a relatively slow year for securities class action lawsuit settlements compared to 2018. However, there were a number of significant securities lawsuit recoveries and the total recoveries in the aggregate were for at least some law firms quite substantial. In a March 11, 2020 report entitled “The Top 50 of 2019,” ISS Securities Class Action Services sets out a list of the top 50 law firms  — ranked by total cash amount and by number of cash settlements – with respect to final securities class action lawsuit settlements in 2019 in North America (inclusive of both the U.S. and Canada). ISS’s report can be found here. Continue Reading ISS Ranks 2019 Top Plaintiffs’ Securities Class Action Firms

Francis Kean

In a post published last month, I wrote about an interesting U.K. case in which a claim had been asserted post-bankruptcy against a director of a private company. In the following guest post, Francis Kean, a partner in the financial lines team at McGill and Partners, takes another look at the case and considers its implications. A version of Francis’s article previously was published on LinkedIn. I would like to thank Francis for allowing me to publish his article as a guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly of you would like to submit a guest post. Here is Francis’s article. Continue Reading Guest Post: Do D&O Policies Need to be Amended to Cover Post Insolvency Claims?

If you have not been following the drama surrounding the question of the attorneys’ fees to be paid to class counsel in the State Street foreign currency exchange overcharge case, you will want to read the latest order from District of Massachusetts Judge Mark Wolf. Among other things, in his February 27, 2020 order, Judge Wolf cut the fees of the law firms that acted as class counsel, from $75 million to $60 million. Perhaps even more significantly, Judge Wolf concluded that lawyers at two of the lead plaintiff law firms had violated applicable provisions of the professional code of conduct and referred the attorneys to the local state bar professional practices unit. Judge Wolf’s findings also include his own reflection about the indispensable role of judge in supervising class counsel and their fees. A copy of Judge Wolf’s order can be found here. Continue Reading Court Ratchets Down Fee Award, Refers Class Counsel for Possible Ethics Violation