The news headlines have been dominated in recent days by appalling revelations that leading politicians, entertainers, political candidates and others have engaged in sexual harassment, assault, and even worse behavior. As these stories have emerged, a dynamic has evolved in which the victims come forward with their stories and seek to hold the wrongdoers accountable for their misconduct. Now, a blockbuster settlement entered on Monday suggests that this dynamic may not be limited just to attempting to hold individuals to account but may also involve efforts to hold the wrongdoers’ companies’ executives accountable for allowing the misconduct or for turning a blind eye.

 

In what is one of the largest shareholder derivative settlements ever, senior officials of 21st Century Fox have agreed to a $90 million settlement (to be funded by insurance) of allegations the company’s management permitted a culture of sexual and racial harassment to permeate the company, ultimately resulting in financial and reputational harm to the company. The settlement includes provisions for interesting governance and compliance enhancements, including the creation of a Workplace Professionalism and Inclusion Council. As discussed below, the procedural circumstances of the settlement are interesting as well, as the settlement arises out of a lawsuit that had been threatened but not filed until the same day as the settlement agreement was submitted to the court. Continue Reading Massive Derivative Suit Settlement for Alleged Management Failure to Prevent Sexual Misconduct

When two or more insurers’ policies potentially cover a single loss, “other insurance” questions can arise. Over the years, courts have developed a number of rules of the road to apply when multiple policies potentially cover the same loss. But these principles govern the obligations and responsibilities between the insurers, and not between the insurers, on the one hand, and the policyholder, on the other hand. These principles were well-illustrated in a recent case out of the Southern District of South Carolina in which  Judge Henry Herlong held that the possible application of another policy of insurance did not entitle an insurer to a pro rata apportionment of its loss payment to its insured. The case provides a good example from which to consider the insurer’s rights and obligations are in these situations. Judge Herlong’s November 7, 2017 Opinion in the case can be found here.  The Wiley Rein law firm’s November 17, 2017 post about the decision on its Executive Summary blog can be found here. Continue Reading “Other Insurance” Issue is Not the Policyholder’s Problem

The D&O Diary’s European assignment continued this week with a stop for meetings in Oslo. On the flight to Oslo from Stockholm, it was clear from looking out the window that it had snowed overnight in Norway. Skies were clear and the sun was shining brightly when I made my way in to the city from the airport, but Oslo also was covered with a fresh layer of snow.  The grounds of the Royal Palace, where the lilacs had been in bloom when I visited Oslo in May, were snow-covered, as shown in the accompanying picture. Continue Reading Snow in Oslo

The D&O Diary is on assignment in Europe this week, with the first stop in Stockholm, Sweden’s capital city. Given Stockholm’s Baltic climate and northern latitude, November is not necessarily the optimal month to visit Stockholm. The weather forecast for my visit was particularly forbidding, with freezing rain and snow predicted. Fortunately, the foul weather never materialized, and other than one overcast day, I enjoyed brisk but dry late fall weather throughout my visit, as the pictures show. Continue Reading November in Sweden

David M. Furbush
David M. Lisi

Cybersecurity issues are currently at the top of the agenda for corporate boards. In the following guest post, David M. Furbush and David M. Lisi of the Pillsbury law firm review what corporate directors should understand about their companies’ cybersecurity risks and how boards can go about proactively participating in decisions about what to do to mitigate these risks. I would like to thank David and David for their willingness to allow 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 David and David’s guest post. Continue Reading Guest Post: What Corporate Directors Need to Know about Cybersecurity

John Reed Stark

 As I noted in a recent post (here), the business pages these days are full of headlines about Initial Coin Offerings (ICOs). Among many issues swirling around ICOs one is the question of how the offerings fit within the overall legal and regulatory framework. 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 detailed look at ICOs with a particular focus on securities regulation. A prior 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 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 guest post. Continue Reading Guest Post: The SEC and ICOs: Winter is Coming

A recurring issue in securities cases involves the question of when plaintiffs may rely on the presumption of reliance under the fraud on the market doctrine. To invoke the presumption plaintiffs must show that the defendant company’s securities trade on an efficient market, which in turn raises the question of what the plaintiffs must show in order to demonstrate market efficiency. In the following guest post, attorneys from the Paul Weiss law firm review a recent Second Circuit decision on this issue, Waggoner v. Barclays PLC (here). I would like to thank the attorneys from the Paul Weiss law firm for allowing me to publish this article as a guest post. 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 the Paul Weiss attorneys’ guest post. Continue Reading Guest Post: Second Circuit: Price Impact Evidence Not Always Necessary to Establish Market Efficiency

Uzbekistan (highlighted)

There is no private right of action under the Foreign Corrupt Practices Act (FCPA), but plaintiff shareholders nevertheless frequently file follow-on civil actions in the wake of FCPA allegations against a company. Are these follow-on civil actions just an end run around the FCPA’s lack of a private right of action? That is the question a district court addressed in ruling on a motion to dismiss in a securities class action lawsuit filed against VEON (formerly known as Vimpelcom). In a September 19, 2017 order (here), Southern District of New York Judge Andrew L. Carter, Jr. held that the alleged misrepresentations on which the plaintiff sought to rely were “sufficiently distinct to avoid any potential concern that Plaintiffs are seeking to enforce the FCPA by [their] securities fraud action.” A November 8, 2017 memo from the Shearman & Sterling law firm about the ruling can be found here. Continue Reading Is a Follow-On Lawsuit an End-Run Around the Absence of an FCPA Private Right of Action?

Chris Graham
Shelly Hall

In prior posts (most recently here) I have reviewed cases in which courts considered the question of insurance coverage for a bank’s obligation to repay allegedly improper overdraft fees.  The following guest post discusses a recent overdraft fee coverage case from the Seventh Circuit. BancorpSouth v. Federal Insurance Co. (the opinion can be found here). In this guest post, Chris Graham, a founding partner of Jones Lemon Graham LLP, and Shelly Hall, an attorney at the firm and business law adjunct professor, provide an overview of the Seventh Circuit case and also provides a chronology of other overdraft fee coverage cases.  A prior version of this article previously appeared on the law firm’s website (here). I would like to thank Chris and Shelly for their willingness to allow me to publish their 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 an article. Here is Chris and Shelly’s guest post. Continue Reading Guest Post: Fee Exclusion Precludes Coverage with No Allowance for Defense Costs

Anyone who reads the business pages these days has to be aware that there has been a surge of interest and activity involving cryptocurrencies, and in particular involving initial coin offerings (“ICOs”). In third quarter 2017 alone, 105 ICOs raised over $1.3 billion. This level of activity has in turn attracted regulatory scrutiny and even enforcement activity. In addition, there is now a securities class action lawsuit pending in connection with an ICO earlier this year, as discussed in detail below. As problems have emerged, investors, regulators, and others understandably have become wary of ICOs. However, because of the opportunities involved, ICOs are likely to continue, and for that reason it remains important to try to understand the promise they represent. Continue Reading Cryptocurrencies and ICOs: Problems and Promise