On July 13, 2018, the Amsterdam Court of Appeals finally approved the €1.3 billion ($1.5 billion) settlement of a series of shareholder claims against Fortis in the wake of the global financial crisis. The settlement, which had first been announced in March 2016 by Ageas, Fortis’s successor in interest, faced a number of judicial objections and concerns, resulting in changes to the settlement as originally proposed. According to a July 27, 2018 Law 360 article by Jonathan Richman of the Proskauer law firm and Ianika Tzankova of Tilburg University (here), the court’s recent approval “again shows” that the Dutch settlement procedure “remains a viable settlement vehicle for companies wishing to resolve transnational problems on a classwide, opt-out basis.” On the other hand, claimants’ attorneys have questioned whether the court’s rulings on class distribution and attorneys’ fees could discourage institutional investors from seeking to use the Dutch settlement procedures. Continue Reading
Massive Facebook Stock Drop Draws GDPR-Related Securities Suit
It was perhaps inevitable after Facebook’s disappointing quarterly earnings announcement last week triggered what reportedly is the largest single day share price drop ever that securities class action lawsuits against the company would follow. And indeed on Friday at least two securities class action lawsuits were filed against the company. While the lawsuit filings may have been predictable, at least one of the lawsuits contains an interesting and unexpected variant on the standard pattern – one of the two lawsuits contains allegations that the company made misrepresentations about its readiness for the May 2018 effective date of General Data Protection Regulation (GDPR) and about the impact of GDPR compliance on the company’s business and operations. As discussed below, these allegations reflect the growing liability exposures arising from growing privacy-related concerns and regulation. Continue Reading
Guest Post: The Speed of Breaches and Other Bad News in Cybersecurity Incident Response
For any organization experiencing a data breach, the organization’s response to the incident remains one of the most important and yet one of the most challenging next steps. In the following guest post, Paul Ferrillo, a partner in the New York office of the Greenberg Traurig law firm, examines the ways that an organization can respond well to a cyber incident. I would like to thank Paul for his willingness to allow me to publish his article as a guest post on my 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 Paul’s article. Continue Reading
Cornerstone Research: Securities Suit Filings at Near Record Level in Year’s First Half
Securities class action lawsuits were filed at “near record levels” in the first six months of 2018, according to a July 25, 2018 report from Cornerstone Research. According to the report, which is entitled “Securities Class Action Filings – 2018 Midyear Assessment,” more than 750 federal securities class actions have been filed since mid-2016, the highest number of filings in a 24-month period since the passage of the PSLRA. The report can be found here. Cornerstone Research’s July 25, 2018 press release can be found here. My report of the securities suit filings in the year’s first six months can be found here. Continue Reading
Book Review: A Guide to Using ADR to Resolve Insurance Claims Disputes
As is well known, civil litigation in the U.S. can be expensive, time-consuming and burdensome. Despite these obvious drawbacks, countless insurance disputes wind up in litigation, imposing costs and burdens on policyholders, claimants, and insurers. Alternative dispute resolution (ADR) mechanisms – such as arbitration, mediation, settlement conferences, and appraisal – allow the parties to insurance disputes to avoid the expense and burdens of trying to address a dispute in court. A new book published by the American Bar Association entitled “Resolving Insurance Claims Disputes Before Trial” (here) seeks to provide a practical guide to the ADR mechanisms. As discussed below, this book provides valuable guidance for attorneys, claims adjusters, and others involved in the insurance claim process. Continue Reading
House Passes JOBS Act 3.0
Since it first enacted the Jumpstart Our Business Startups (JOBS) Act in 2012, Congress has continued to modify the original JOBS Act as part of an ongoing effort to try to boost small businesses and business startups. For example, in 2015, Congress acted to expand a number of the JOBS Act’s provisions. On July 17, 2018, the U.S. House of Representatives passed what has been referred to as the JOBS Act 3.0. By a vote of 406-4, the House passed the JOBS and Investor Confidence Act of 2018, which is designed to further encourage capital formation and market access for small business enterprises. The House Financial Services Committee’s July 17, 2018 statement about the legislation can be found here. Continue Reading
9th Circ. Reverses Ruling That U.S. Securities Laws Do Not Apply to Toshiba’s Unsponsored ADRs
One of the questions that courts have wrestled with as they have struggled to apply the U.S. Supreme Court’s decision in Morrison is whether or not the U.S. securities laws apply to transactions in American Depositary Receipts (ADRs). In the U.S. securities class action lawsuit filed against Toshiba in the wake of the company’s massive accounting scandal, the district court granted the company’s motion to dismiss on the grounds that the Exchange Act did not apply to the plaintiffs’ over-the-counter (OTC) transactions in the company’s unsponsored American Depositary Receipts (ADRs). The plaintiffs appealed. In a July 17, 2018 decision, the Ninth Circuit reversed the dismissal and remanded the case in order for the plaintiffs’ to have the opportunity to try to plead facts that might be sufficient to establish that the securities laws apply, notwithstanding the fact that the ADRs were unsponsored. The Ninth Circuit’s opinion can be found here. Continue Reading
Percentage of M&A Deals Attracting Litigation Continued to Decline in 2017
The percentage of M&A transactions valued over $100 million attracting at least one merger objection lawsuit continued to decline in 2017, according to a recent Cornerstone Research study. The July 18, 2018 study, entitled “Shareholder Litigation Involving Acquisitions of Public Companies: Review of 2017 M&A Litigation” (here), also reports that the average number of lawsuits filed per M&A deal and the percentage of M&A deal litigation voluntarily dismissed declined in 2017, as well. Cornerstone Research’s July 18, 2018 press release about the report can be found here. Continue Reading
Another D&O Lawsuit Arising from Sexual Misconduct Allegations
In the latest example of a D&O lawsuit arising in the wake of allegations against a corporate executive of sexual misconduct, a shareholder has filed a securities class action lawsuit against National Beverage Corp. and certain of its executives following news reports that the company’s Chairman and CEO allegedly had inappropriately touched company pilots while traveling on the Chairman’s business jet. (National Beverage manufactures the ubiquitous LaCroix brand mineral water, with which the author of this blog has absolutely no connection.) The complaint, a copy of which can be found here, also contains separate allegations relating to allegedly misleading financial disclosures. This new lawsuit, like the prior D&O lawsuits filed following revelations of sexual misconduct allegations, underscores the fact as corporate executives are called out for alleged misbehavior, the accountability process may extend not only the alleged wrongdoers themselves, but may also extend to their company and other executives. Continue Reading
Fifth Circuit Reverses Dismissal of Data Breach Coverage Suit Against D&O Insurer
In a recent case in the Fifth Circuit, a retail merchant sought to establish that its D&O insurer was required to provide a defense to a data breach-related claim that had been brought against the merchant. The appellate court held that the trial court erred in granting the insurer’s motion for judgment on the pleadings and ruling that the policy’s contractual liability exclusion precluded coverage. The ruling, which suggests at least the possibility of coverage under the D&O policy for at least some of the claims against the merchant, raises a number of important issues, as discussed below. The Fifth Circuit’s June 25, 2018 opinion in the case can be found here. A July 11, 2018 memo from the Crowell & Moring law firm about the decision can be found here. Continue Reading
