Because the lawsuits are so expensive to litigate and to resolve, securities class action litigation has long been the subject of both scrutiny and criticism. However, while the history of concern about securities litigation is long, the case can be made that there has rarely been a time when securities litigation in the U.S. deserves a critical look more than it does now. As has been well-documented on this site and elsewhere, securities class action lawsuit filing activity has been a record levels for the past two years. Signs are so far this year that these heightened levels of activity, which can only be described as alarming, are continuing. Given these circumstances, it is hardly surprising that business groups and others are now raising calls for another round of securities class action litigation reform. Continue Reading Securities Class Action Reform Discussed at Washington Event

Last fall, the U.S. Chamber Institute for Legal Reform issued a paper detailing the ways in which the U.S. securities class action litigation system is “spinning out of control,” and calling for a renewed wave of securities litigation reform. In a new paper, entitled “Containing the Contagion: Proposals to Reform the Broken Securities Class Action System,” the Institute renews the call for reform and sets out a series of specific proposals intended address the “abuses” the paper identifies. The current securities class action litigation system, according to the paper, is “plainly broken, harming investors and our capital markets.” The Institute’s February 25, 2019 paper can be found here. Continue Reading U.S. Securities Class Action Litigation: Alarm Bells and Reform Proposals

Every year, investors from Wall Street to Main Street await Berkshire Hathaway Chairman and CEO Warren Buffett’s annual letter to the company’s shareholders, for his commentary on the current business and economic environment, for his investment insights, and for his occasional folksy and humorous observations. In the run-up to the release of this year’s letter, which took place this past Saturday morning, there was hope that this year’s letter might do a little more – say, explain how Buffett intends to deploy the company’s growing mountain of cash, or comment on recent negative developments at Kraft Heinz. Although this year’s letter contains the usual ration of Buffett’s brand of investment wisdom, those who were looking for more undoubtedly were disappointed.  Buffett’s February 23, 2019 letter can be found here. (Full disclosure: I own BRK.B shares, although not nearly as many as I wish I did.) Continue Reading A Closer Look at Buffett’s Annual Letter to Berkshire Shareholders     

Libby Benet

In the current environment, most people are aware that there are serious pitfalls and problems involved with data security and privacy. However, business leaders may not always be aware of their legal and ethical duties for securing employee, customer, and partner information. In the following guest post, Libby Benet, JD, CIPP US, Principal Benet Consulting, takes a look at these issues, as well as the important differences between information security and privacy. I would like to thank Libby for allowing me to publish her article as a guest post. 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 Libby’s article. Continue Reading Guest Post: Information Security and Privacy – What Business Leaders Need To Know

Bill Boeck

In June 2017, the food company Mondelez International was one of the companies hit by the major global computer malware attack dubbed NotPetya. According to news reports, the malware caused damage to the company’s network servers and computers in excess of $100 million. Various sources have attributed the malware attack to the Russian military. Mondelez submitted its losses to its property insurer, which denied coverage in reliance on the policy’s war exclusion. Mondelez and its insurer are now in coverage litigation. In the following guest post, Bill Boeck takes a look at the litigation and its implications. Bill is currently Senior Vice President and Insurance and Claims Counsel with the Lockton Companies.  He is Lockton’s global leader for cyber claims and for the development of proprietary cyber wordings and endorsements.  Bill also leads Lockton’s US financial lines claims practice. A version of this article previously was published on the Lockton Cyber Risk Update Blog. I would like to thank Bill for his willingness to allow me to publish his article 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 Bill’s article. Continue Reading Guest Post: War Exclusions and Cyber Attacks

When most people think of liability insurance, they think about the insurer’s payment obligations. But policyholders have obligations under liability insurance policies, too. Among the most important policyholder obligation is the requirement to provide timely notice of claim. The failure to provide timely notice can entirely preclude coverage, as is illustrated in a ruling in a recent coverage dispute arising out of an underlying False Claims Act claim. As discussed below, there were a number of circumstances involved in the underlying claim that the policyholder argued excused or at least explained its late provision of notice. However, the court rejected these arguments and held the late notice was not excused and that coverage was precluded. The February 12, 2019 order in the case by Central District of California Judge Stephen V. Wilson can be found here. Continue Reading Late Notice Precludes Coverage for False Claims Act Settlement

Between 2010 and 2016, the number of shareholder appraisal actions filed in Delaware courts increased every year, but in 2017 and again in 2018, the number of appraisal actions declined, according to a recent report from Cornerstone Research. The decline arguably is a result of recent Delaware Supreme Court decisions in which the court reversed lower court rulings holding that the fair value exceeded the deal price and instead indicated that the deal price should be given substantial weight, at least where the sales process was “robust.” The report, entitled “Appraisal Litigation in Delaware: Trends in Petitions and Opinions, 20016-2018” can be found here. Cornerstone Research’s February 13, 2019 press release about the report can be found here. Continue Reading Cornerstone Research: After Years of Increases, Number of Delaware Appraisal Actions Decline

John Reed Stark

In a February 14, 2019 order, Southern District of California Judge Gonzalo Curiel entered an order reversing his earlier decision on the same issue and concluding that the digital tokens offered by cryptocurrency company Blockvest LLC represented “securities” within the meaning of the federal securities laws. 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 Judge Curiel’s ruling and what it many mean for future securities litigation involving digital currency offerings. A version of this article previously was published on Securities Docket. I would like to thank John for allowing me to publish his article as a guest post. 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: Judge Reverses Blockvest Decision: ICOs are Securities

A German village along the Rhine, north of Düsseldorf

The D&O Diary was on assignment in Germany for meetings this past week, with four stops on a crowded itinerary. I have been to Germany during the winter months many times before and I have learned that the weather can be OK or it can be lousy. But nothing in my prior experience prepared me for the weather this past week, which, with the exception of one gloomy day, was really pretty spectacular, at least for this time of the year. Continue Reading Four Cities in Germany

Karen Boto

In the following guest post, Karen Boto, Legal Director at the Clyde & Co. law firm, takes a look at the unusual circumstances that have recently come to light in connection with the cryptocurrency trading platform Quadriga, as well as the insurance issues that the circumstances might involve. I would like to thank Karen for allowing me to publish her guest post. 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 Karen’s article. Continue Reading Guest Post: Cryptocurrencies — A Quandary for Quadriga