In February 2018, the SEC updated its cybersecurity disclosure guidelines for reporting companies, emphasizing the importance to investors and markets for prompt and robust disclosure relating to cyber issues. Indeed, in April, the agency brought its first enforcement action relating to cybersecurity enforcement issues. In its recent annual report, the agency’s enforcement division emphasized that cybersecurity disclosure is a priority issue. Clearly, public company’s cybersecurity-related disclosure practices are receiving a great deal of attention and scrutiny.

 

But what are public companies actually doing in terms of cybersecurity disclosures? A recent study by EY took a look at the actual cybersecurity disclosure practices. Their analysis shows that cybersecurity-related disclosure practices “vary widely,” suggesting there is an “opportunity for enhancement.” The October 22, 2018 report, entitled “Cybersecurity Disclosure Benchmarking,” can be found here. Continue Reading Cybersecurity Disclosure Practices and Standards

Both the volume of SEC enforcement activity and the level of financial recoveries increased in the fiscal year that ended September 30, 2018, according to the agency’s annual enforcement activity report. The increases came after activity had been down in the prior year, the first year under the current presidential administration. However, the agency’s enforcement chiefs cautioned against placing too much weight on the numbers alone. The report contains some interesting signs of what we might expect in the current fiscal year. The SEC’s enforcement report can be found here. The agency’s November 2, 2018 press release about the report can be found here. Continue Reading SEC 2018 FY Enforcement Report Shows Increased Activity, Recoveries

In June 2017 when the U.S. Supreme Court entered its opinion in California Public Employees Retirement System v. ANZ Securities, in which the Court affirmed the Second Circuit and held that Securities Act of 1933’s three-year statute of repose is not subject to equitable tolling, one question that was asked was whether the Court’s ruling would encourage more securities suit class members to file protective actions before the statutory period expired in order to preserve their right to opt-out of the class action.

 

Recent developments in a securities class action involving VEREIT, a real estate investment trust and successor-in-interest to the troubled American Realty Capital Properties, in which VEREIT has entered three opt-out settlements with large institutional investors totaling a whopping $217.5 million, suggest that the concerns raised following the ANZ Securities decision may be coming to pass. These developments may also portend a very complicated future for U.S. securities class action litigation, at least in the most serious cases. Alison Frankel’s October 29, 2018 post on her On the Case blog about the VEREIT opt-out settlements can be found here. Continue Reading Do Opt-Out Settlements of $217.5 Million Foreshadow the Future of Securities Litigation?  

As I have noted in prior posts (most recently here), in recent months, allegations of price fixing have given rise to follow-on securities class action lawsuit filings against generic drug companies alleged to have participated in the price-fixing. All of these kinds of cases are examples of a securities litigation trend in which securities suit filings following in the wake of underlying antitrust allegations. In the latest example of this type of lawsuit, a plaintiff shareholder has now filed a securities class action lawsuit against McKesson Corporation, asserting securities claims based on the company’s alleged involvement in a scheme to fix prices for generic drugs. As discussed below, this new lawsuit has a number of interesting features. Continue Reading Securities Lawsuit Filing Follows Generic Drug Price Fixing Allegations

In the latest example of a D&O lawsuit following in the wake of allegations of sexual misconduct, three shareholders have filed a state court derivative lawsuit in Oregon against Nike’s Board of Directors alleging that the defendants failed in their oversight duties and allowing a toxic “boys club” culture of sexual harassment and bullying to take hold. The Nike complaint shows yet again that the accountability process that has emerged as part of the #MeToo movement in many cases has involved efforts to hold company’s boards accountable for permitting misconduct or turning a blind eye. The Nike derivative complaint can be found here. Continue Reading Nike Board Hit with Sexual Misconduct-Related Derivative Suit

As I have detailed in prior posts on this blog, securities class action litigation is well-established in Australia. According to a recent report from ISS Securities Class Action Services, securities class action litigation has grown “markedly” in the last ten years, to the point that outside North America, Australia “is the jurisdiction in which a corporation is most likely to find itself defending against a class action,” and indeed other than the U.S., Australia “is pulling ahead of almost all other countries in terms of active securities class action cases before the courts.” There are however important differences between the Australian and U.S. class action systems, and some of these difference post important challenges for both the courts and for litigants – and indeed have led to calls for reform. The October 23, 2018 report, entitled “Navigating the Australian Securities Class Action Landscape,” can be found here. Continue Reading The Challenging Securities Litigation Landscape in Australia

As has been well-documented (on this site and in various other sources), securities class action frequency has soared to historically high levels in recent years. Given this development, it might reasonably be assumed that D&O insurance pricing has increased to account for the increased litigation risk. However, for a number of reasons – including the continued abundance of insurance capacity – D&O insurance pricing overall has declined. For that reason, it “should come as no surprise” that Transatlantic Reinsurance’s October 2018 analysis of the U.S. public company D&O liability insurance marketplace reveals “price inadequacy” – that is, that the “level of compensation in the market is not commensurate with the risks being taken.” The TransRe report, while technical, illustrates the currently challenging circumstances facing the D&O insurance industry. Continue Reading Losses Up, Pricing Down: A Tough Combination for D&O Insurers

Alleged deficiencies in climate change-related disclosures have been a target of advocacy groups, shareholders, and regulators. The latest example of this phenomenon is the civil lawsuit the New York Attorney General filed on Wednesday against Exxon Mobil Corporation. The NYAG alleges that the company sought to “systematically and repeatedly deceive investors” about the future impacts climate change regulation could have on the company’s assets and value. The lawsuit underscores the fact that climate change disclosures are and will remain under scrutiny and that the claims alleging insufficient or deceptive climate change-related disclosures remain a significant area of corporate liability exposure. The October 24, 2018 complaint can be found here. The NYAG’s October 24, 2018 press release about the lawsuit can be found here. Continue Reading NYAG Files Climate Change Disclosure Lawsuit Against Exxon Mobil

John Reed Stark

Most readers are undoubtedly familiar with the concept of “insider trading” – that is, the purchase or sale by company insiders of their personal holdings in company shares based on material non-public information. Readers may be less familiar with “outsider trading,” which is trading in shares of a company on the basis on material non-public information by individuals who do not qualify as insiders. 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 the SEC’s track record in this area and calls for the agency to reinforce its efforts to police outsider trading. A version of this article previously appeared on Securities Docket. I would like to thank John for his willingness to allow 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: The SEC’s Outsider Trading Program: The Silence is Deafening

In 1995, Congress passed the Private Securities Class Action Reform Act (PLSRA) over President Clinton’s veto in order to try to address perceived securities class action litigation abuses. According to a new report from the U.S. Chamber Institute for Legal Reform entitled “A Rising Threat: The New Class Actions Racket That Harms Investors and the Economy,” despite the PSLRA’s reforms, many of the same abuses that led to the PSLRA’s enactment have returned, and as a result the securities class action system is “spinning out of control.” According to the report, the time has come for Congress to intervene again to curb “abusive practices that enable the filing of unjustified actions.” The Institute’s October 23, 2018 report can be found here.  Continue Reading Time for Another Round of Securities Class Action Litigation Reform?