John Reed Stark

Lost amidst all of the turmoil surrounding the dramatic swings in the value of digital currencies is that the original idea for these digital assets is that  they might actually be used as exchange media, in place of traditional currencies. Whether or not someone might use cryptocurrency to, say, buy a cup of coffee at Starbuck’s, Ohio residents, at least, may now use bitcoin to pay their state taxes. 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 Ohio’s recent bitcoin move and reviews what it might mean – for Ohio, and in general. A version of this article previously was published on CybersecurityDocket.com. I would like to thank John for allowing me to publish his guest 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: Ohio Now Accepts Bitcoin for Tax Payments; No Problem, Right?

The Second Circuit recently took up the insurance coverage dispute arising out of the high profile enforcement action the SEC pursued against hedge fund Patriarch Partners and its CEO, Lynn Tilton. The district court had ruled that coverage under the firm’s third level excess D&O insurance policy for the expenses the firm incurred in defending the SEC action was precluded because the agency’s investigation preceded the policy’s “prior and pending” litigation date. The Second Circuit affirmed the district court, but not on the grounds on which the lower court had relied. Rather, the appellate court affirmed the district court ruling based on its conclusion that coverage was precluded under language in the warranty statement the firm submitted for the excess insurance policy. The opinion includes interesting discussion of the issues surrounding the warranty statement. The Second Circuit’s December 6, 2018 Summary Order in the case can be found here. Continue Reading Second Circuit: Excess D&O Policy’s Warranty Statement Exclusion Precludes Coverage

Jonathan Legge

Private Capital Investment is an increasingly important component of the global financial landscape. The increasing importance of Private Capital Investment raises a number of important issues, not the least of which are insurance-related issues. In a series of three posts, Jonathan Legge, a Senior Vice President at RT Pro Exec, will be taking a look at the key insurance issues relating to Private Capital Investment. The first of the three posts is published below. I would like to thank Jon 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 Jon’s article. Continue Reading Guest Post: Private Capital Investment: Getting the Portfolio Company Covered Right

One of the basic requirements in order for coverage to be triggered under a directors’ and officers’ liability insurance policy is that the misconduct alleged must have been undertaken by insured individuals in an “insured capacity” – that is, in their capacities as directors or officers of the insured entity. In a recent insurance coverage ruling, the Delaware Superior Court held that because the allegations against the insured individuals “arose out of” their involvement with entities other than the insured entity, there was no coverage for the individuals under their bankrupt company’s D&O insurance policy. The ruling underscores the importance of capacity issues in determining D&O insurance coverage and highlights the ways in which allegations of misconduct undertaken in multiple capacities can lead to complicated coverage questions. The Delaware Superior Court’s November 30, 2018 decision can be found here. Continue Reading D&O Insurance: No Coverage for Alleged Misconduct Not Undertaken in an Insured Capacity

Bill Boeck

As most readers undoubtedly are aware, the EU’s General Data Protection Regulation went into effect on May 25, 2018. Even though the regulation has only been in effect for a few months, regulators across Europe have already starting levying fines under the regulation’s provisions. In the following guest post, Bill Boeck takes a look at the fines that have been imposed so far and considers their 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: What Can the First GDPR Fines Tell Us?

When news of the recent massive data breach at Marriott began circulating late last week, a colleague emailed and asked me how long I thought it would take for a D&O lawsuit to be filed. I emailed back that I thought there would be a securities class action lawsuit before the end of business on Monday (December 3). Turns out, I didn’t give the plaintiffs’ lawyers nearly enough credit for haste. The plaintiffs’ lawyers managed to file a securities class action lawsuit against the company on December 1, 2018, just one day after Marriott announced the breach. The lawsuit is the latest example both of a data breach-related D&O lawsuit and an event-driven securities suit, as discussed further below. Continue Reading Marriott Hit with Data Breach-Related Securities Lawsuit

One of the important questions about U.S. Department of Justice’s approach following the change of Presidential Administration two years ago was whether DOJ would continue  emphasizing its policy of individual accountability in the agency’s 2015 statement known as the Yates Memo. In a recent speech, Deputy Attorney General Rod J. Rosenstein announced changes to the policy. The changes, which are more in the form of an adjustment rather than a wholesale change, makes it clear that companies seeking cooperation credit no longer need to identify “all” individuals involved in the wrongdoing, so long as the companies identify those who were “substantially involved” in the misconduct. The text of Rosenstein’s November 29, 2018 speech to the American Conference Institute’s International Conference on the Foreign Corrupt Practices Act, at which he announced the changes, can be found here. Continue Reading Department of Justice Eases “Yates Memo” Requirements for Cooperation Credit

Late last month, Lion Air Flight 610 crashed into the Java Sea shortly after its takeoff in Jakarta, killing all 189 passengers and crew members on board. As details about the doomed flight have emerged, investigators have raised questions about the possible malfunction of new flight control features on the Boeing 737 MAX 8 jet involved in the crash, as well as about Boeing’s documentation and training relating to the flight control features. Under these circumstances, the possibility that there might be litigation is hardly surprising. What might be less obvious is that the litigation against Boeing relating to the crash might involve a securities class action lawsuit. Continue Reading First The Plane Crash, Then The Securities Lawsuit

One idea that resurfaces from time to time is the suggestion that companies ought to adopt bylaw or charter provisions mandating the arbitration of shareholder claims, including claims under the federal securities laws. The current SEC Chair, Jay Clayton, has said that he does not consider the issue to be a top priority, seemingly shelving the idea for the time being. But various contending parties have continued to agitate on the issue.

 

In a recent white paper issued by a consumer advocacy group and signed by a number of prominent securities law professors, the professors state their view that Delaware law does not permit federal securities law claims to be resolved in arbitration or in any specific forum. The white paper is sure to stir the pot. As discussed below, it could also have an impact on a case currently pending in Delaware state court that could dictate whether or not Delaware companies may designate a federal court forum for the resolution of claims under the federal securities laws. Continue Reading Delaware Law and Mandatory Shareholder Claim Arbitration Provisions

If the uncertainty creates risk, then the current state of play on the United Kingdom’s efforts to withdraw from the European Union represents risk in a highly concentrated form. On November 25, 2018, the 27 EU members approved the divorce pact that the U.K. negotiated with its EU counterparts, but the pact must now face a Parliamentary vote, on December 11, 2018. In the meantime, the March 29, 2019 withdrawal date looms. These upcoming events present uncertainties at both the economic and enterprise levels. The uncertainties in turn create challenges for potentially affected companies, including among other things the challenge of communicating about these issues to investors. As discussed below, SEC Chair Jay Clayton recently emphasized that the agency is “sharpening its focus” on Brexit-related disclosures, highlighting the significance of the disclosure-related concerns. Continue Reading Brexit Uncertainty, Disclosure Concerns, and Potential Liability