Francis Kean

As long time readers know, I have long been warning that climate change-related issues could have a significant impact on directors and officers liability exposures. In the following guest post, Francis Kean provides a summary outline of the specific litigation exposures that corporate directors and officers may face as a result of emerging climate change-related concerns. Francis is Executive Director FINEX Willis Towers Watson. Francis will be joining McGill and Partners in early spring 2020. 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: Climate Change Litigation Threats to Directors and Officers

One of the hot topics for mainstream P&C insurers these days is dealing with “silent cyber” – that is, the coverage for cyber-related losses in traditional property and casualty insurance policies. There are a number of initiatives underway in the insurance underwriting community as insurers try to address silent cyber. However, as noted in an interesting January 14, 2020 memo from the Covington law firm entitled “The Noise About ‘Silent Cyber’ Insurance Coverage” (here), these initiatives have important implications for policyholders. Among other things, these initiatives potentially could result in a gap in policyholders’ coverage for cyber-related losses, as discussed below. Continue Reading Addressing “Silent Cyber” and the Risk of Coverage Gaps

Plaintiffs seeking to pursue negligence claims for the disclosure of their personal information in a data breach often face hurdles in pleading a sufficient injury. The claimants’ failure to plead a sufficient injury frequently is the basis for dismissal. However, in a very interesting recent decision, the Georgia Supreme Court reversed the intermediate appellate court’s affirmance of the dismissal of the plaintiffs’ data breach claims, finding that the claimants had sufficient standing to assert their claims where they alleged that the disclosure of their personal information left them at an “imminent and substantial risk of identity theft.” As discussed below, the Court’s holding arguably makes data breach claims under Georgia law less susceptible to dismissal. However, as also discussed below, there are important limitations to the Court’s holding. Continue Reading Georgia Supreme Court: Risk of Future Identity Theft Sufficient to Support Data Breach Negligence Claim

Regular readers know that among the recurring themes on this site are concerns about problems with the application of notice rules to preclude insurance for claims that would otherwise be covered under the policy. These problems are, in my view, particularly abrupt where a claims is made during one policy period and the notice is provided during the policy period of a subsequent renewal policy issued by the same insurer. I have argued that continuity of coverage between the two policies and with the same insurer ought to be taken into consideration and that coverage should be denied only if the insurer can show that the late notice of claim during the renewal period prejudiced the insurer’s interests. In a recent appeal, the Ninth Circuit rejected this continuity of coverage argument. The appellate court’s opinion, though brief, raises a number of interesting points, as discussed below. Continue Reading Ninth Circuit Rejects Continuity of Coverage as Response to Late Notice of Claim

Securities class action litigation has been an important part of the corporate and securities litigation environment in the United States and Canada for many years. What has been interesting in more recent years has been the steady rise of collective investor actions outside North America. As these various claims have accumulated, a number of them have developed into significant settlements, as documented in a recent report. ISS Securities Class Action Services has published an interesting report entitled “The Top 25 Non-North American Settlements: Largest Securities-Related Settlements Outside of North America of All-Time” (here) detailing the largest collective investor action settlements in Europe, Australia, and Asia. Continue Reading The Top 25 Securities-Related Settlements Outside of North America

On my beat here at The D&O Diary, I cover the liabilities of corporate directors and officers. One objection I frequently hear is that I focus too much public companies and not enough on private companies. The reason I write about public company issues more than private company concerns is that the public company world usually is more eventful. However, every now and then, something comes up involving a privately-held company that reminds all of us that plenty happens in the private company D&O world, too. The most recent example is the shareholder derivative and class action lawsuit filed last week against executives of the electronic cigarette company, Juul Labs. As discussed below, this new lawsuit highlights the exposures that private company directors and officers can face and underscores the fact that even private companies can get hit with shareholder class action lawsuits. Continue Reading Private Company Directors and Officers Hit with Shareholder Class Action Lawsuit

As one of my year-end features on this site, I published in late December a post with my Top Ten favorite pictures from my travels during 2019. In the same post, I also invited readers to send in their favorite pictures from their own 2019 travels, with the idea that I would post the readers’ pictures here, on this blog. Last week, I published the first installment of readers’ travel pictures. Today, I am very happy to publish the second set of readers’ pictures. There are some great pictures in this set. Continue Reading More of Readers’ 2019 Travel Pictures 

John Reed Stark

In the following guest post, John Reed Stark takes a look at the troubling rise of ransomware attacks, and the disturbing relationship between ransomware attacks and bitcoin. John is the President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement. I would like to thank John 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 John’s article. Continue Reading Guest Post: Ransomware’s Year-End Thank You Note to Bitcoin

On January 6, 2020, solar panel company First Solar announced that it had settled the securities class action lawsuit  pending against the company and certain of its executive officers for a payment of $350 million. During the long course of this matter, the case made its way to the Ninth Circuit a couple of times; the case even involved an unsuccessful petition to the U.S. Supreme Court for a writ of certiorari. In addition to its sheer size, there are a number of other interesting aspects to this settlement, as discussed below. The settlement is subject to court approval. The company’s January 6, 2020 press release can be found here. Continue Reading First Solar Settles Long-Running Securities Class Action Lawsuit for $350 Million

After a run of several years where numerous banks failed each year, no banks failed in 2018, and only four failed in 2019. The low number of bank failures last year, and the absence of any bank failures the year before, clearly are signs that the economy is strong and the banking industry generally is profitable. But the banking sector is notoriously volatile and historically registers all of the economy’s ups and downs vividly. Is it possible that the current banking sector calm itself foreshadows trouble ahead? That is the question asked in a January 6, 2020 Wall Street Journal article entitled “Few Bank Failures Could Be a Warning Sign for U.S. Financial System” (here). Continue Reading Few Banks Failed Last Year – Is That a Problem?