The D&O Diary was in Barcelona this last week for business meetings and for an industry event. Though my schedule was full (and though we lost an entire day thanks to flight delays), we still had a chance to enjoy being in beautiful Barcelona. This city features a  unique combination of climate, seaside beauty, and scenic mountains that really can’t be beat anywhere. Continue Reading Barcelona in June

Jonathan Legge

In a three-post series, Jonathan Legge, a Senior Vice President at RT ProExec, is taking a look at the key insurance issues relating to Private Capital Investment. In the first of the three articles in the series (here), Jon examined the issues involved with getting the insurance for private equity-backed portfolio companies’ right. In the second post in the series (here), Jon discussed transactional risk insurance, and in particular, contingent liability insurance. In today’s post, the third and final post in the series, John takes a look at the evolving insurance solutions for Private Capital investors’ changing needs. I would like to thank Jon for allowing me to publish his series of articles as guest posts 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 Jon’s article. Continue Reading Guest Post: Evolving Solutions for Private Capital Investors

Privately-held companies, on the one hand, and companies whose shares are public traded, on the other hand, face very different liability exposures. Because of these differences in liability exposures, the directors and officers liability insurance available for these types of entities varies – the D&O insurance form available for private companies is quite a bit different from the D&O insurance form available for public companies. A recent law firm memo took a brief look at the differences between the two forms of coverage. There some important additional considerations, that I discuss below. Continue Reading Thinking About the Differences Between Private Company and Public Company D&O Insurance

In the following guest post, Paul Ferrillo and Chris Veltsos take a look at the latest consequences that companies are now facing following a data breach – a rating agency downgrade. Paul is a shareholder in the Greenberg Traurig law firm’s Cybersecurity, Privacy, and Crisis Management Practice. Chris is a professor in the Department of Computer Information Science at Minnesota State University, Mankato where he regularly teaches Information Security and Information Warfare classes. I would like to thank Paul and Chris for allowing 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 site’s readers. Please contact me directly if you would like to submit a guest article. Here is Paul and Chris’s article. Continue Reading Guest Post: Rating Agency Downgrades Following Cyber Breaches — Are They the Canary in the D&O Coal Mine?

John Reed Stark

In recent days, a number of leading retailers have announced that they are initiating processes to allow consumers to complete purchase transactions using bitcoin or other cryptocurrencies. In the following guest post, John Reed Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a look at these developments in the retail industry. A version of this article originally appeared on Securities Docket. 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 site’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s article.

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Continue Reading Guest Post: The Bitcoin Plague Spreads to Retail

In a little noticed-development last week, the U.S. Supreme Court denied the petition for a writ of certiorari in Hagan v. Khoja, in which former officials of a bankrupt pharmaceutical company sought to have the Court review a decision by the Ninth Circuit to revive a securities class action lawsuit against them. Had the petition been granted, the Court would have been called upon to consider the controversial question of whether public companies have a duty to update prior disclosures that were accurate when made. The Court’s cert denial leaves the Ninth Circuit’s ruling standing and the questions surrounding the existence and requirements of a duty to update remain unsettled. The Court’s May 20, 2019 order can be found here.   Continue Reading Supreme Court Denies Cert Petition in Duty to Update Case

In a recent post, I commented on the settlement of a state court securities class action lawsuit relating to the defendant company’s secondary offering, suggesting in the post among other things that the state court suit was noteworthy because it was the first state court secondary offering-related securities suit of which I was aware. In response to the post, I received a helpful and informative email from my friends at Stanford Securities Litigation Analytics, who pointed out that over time there actually have been quite a number of state court secondary offering-related securities suits. Following their direction, I was able to research this issue further myself using their site’s analytic tools and confirm a number of their observations to me about these kinds of lawsuits. Turns out, as they informed me, there have in fact been a number of state court secondary offering-related securities lawsuits, both pre- and post-Cyan, as set out below. This information could have significant implications both for companies conducting secondary offerings and for their D&O insurers. Continue Reading More About State Court Secondary Offering-Related Securities Class Action Suits

Frank Hülsberg
Burkhard Fassbach

In the following guest post, Frank Hülsberg, a Partner for Governance, Risk, Compliance & Technology at Warth & Klein Grant Thornton AG in Düsseldorf, and Burkhard Fassbach, a D&O-lawyer in private practice in Germany, take a look at the EU’s new Whistleblower Directive. I would like to thank Frank and Burkhard for allowing me to publish their article. 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 Frank and Burkhard’s article. Continue Reading Guest Post: The European Union Whistleblower Directive: Overdue Protective Shield

John Reed Stark

In the following guest post, John Read Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a look at the latest cryptocurrency phenomenon — the  “initial exchange offering,” or IEO. A version of this article originally appeared on Securities Docket. I would like to thank John for allowing me to publish his article. 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 an article Here is John’s article. Continue Reading Guest Post: The Looming SEC IEO Smackdown

In the following guest post, Kelly Johnson of Hiscox USA and  James Talbert and Elan Kandel of Bailey Cavalieri took a look at a recent judicial decision addressing the question of whether a wage and hour claim represents an employment related misrepresentation within the meaning of an Employment Practices Liability Insurance policy. I would like to thank Kelly, James, and Elan for allowing 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 Kelly, James and Elan’s article.   Continue Reading Guest Post: Courts Reject Wage and Hour Claims as Employment-Related Misrepresentation Theory