In the current political environment, class action lawsuits are under assault, particularly in conservative legal circles. As Joe Patrice put it in an August 30, 2017 Above the Law post (here) , with a somewhat tongue-in-cheek summary of the conservative perspective on class actions, “The only thing every good conservative legal thinker knows is that class actions are greedy money grabs perpetrated by slimy lawyers that help no one and only frustrate the hard-working capitalists making America great again.”
Given this general outlook among conservatives about class action lawsuits it is all the more surprising and interesting that a conservative legal scholar has come forward with a robust defense of class actions. Vanderbilt Law Professor Brian Fitzpatrick, who clerked for Reagan appointee Dairmuid O’Scannlain on the 9th Circuit and for conservative Supreme Court Justice Antonin Scalia, has published a paper entitled “Do Class Actions Deter Wrongdoing?” (here), as part of his forthcoming book, “The Conservative Case for Class Actions.” In Fitzpatrick’s view, class actions serve an important role because they deter corporate wrongdoing. Fitzpatrick’s analysis may not only be important for the ongoing debate about class actions in the U.S., but, as discussed further below, it may be even more important for the debate about class actions outside the U.S. Continue Reading A Conservative’s Case in Support of Class Actions
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Every year just after Labor Day, I take a step back and survey the most important current trends and developments in the world of Directors’ and Officers’ liability and D&O insurance. This year’s survey is set out below. Once again, there are a host of things worth watching in the world of D&O. 
The D&O Diary’s European mission concluded this week with a final stop in Zurich, for meetings and an educational session. I already knew from prior visits that Zurich is a beautiful and charming city nestled in a spectacular setting at the northern end of Lake Zurich, surrounded by mountains, with a spectacular view of the Alps to the south. What I learned on this trip is that as reliably beautiful as Zurich is at any time, it is particularly stunning in late summer. 
One issue with which courts dealing with insider trading cases have struggled is how to interpret and apply the personal benefit element of the liability standard. The personal benefit standard was in fact an important part of the U.S. Supreme Court’s 2016 decision in Salman v. United States (as discussed 
The D&O Diary’s European assignment continued last week with a stop for meetings in Warsaw, Poland, a city that absolutely confounded expectations. As befits a national capital of a country with a growing economy, Warsaw (
As litigation under the Telephone Consumer Protection Act (TCPA) has proliferated in recent years, one of the recurring questions has been whether the defendants have insurance coverage for these kinds of claims. The insurance questions have in turn generated insurance coverage litigation, primarily with respect to the defendants’ CGL insurance policies, but also with respect to their D&O insurance policies as well. One closely watched recent case involved a D&O insurance dispute arising out of a TCPA claim against the Los Angeles Lakers. The district court had held that the Lakers’ D&O insurance policy did not cover the TCPA claim and the Lakers’ appealed. On August 23, 2017, in a decision that is sure to attract both attention and perhaps further skirmishing on these issues, a divided Ninth Circuit panel affirmed the district court’s holding, concluding that the invasion of privacy exclusion in the Lakers’ D&O insurance policy precluded coverage for the claim. The Ninth Circuit’s opinion can be found 
The D&O Diary is on assignment in Europe this week, with the first stop in Berlin, for a series of business meetings. My schedule while in Berlin was full, but I did have some time both days during my two-day visit to the city for a look around. 
Most informed observers know that IPO companies are more susceptible to securities class action litigation than are more seasoned companies. IPO companies usually have short operating histories and so their post-offering performance can be unpredictable and may include unexpected developments. When IPO companies stumble out of the blocks, they can attract a securities suit just a short time after their debut. An example of this occurred earlier this year when Snap, Inc. was hit with a securities suit two months after its IPO. A more recent example of this sequence involved Blue Apron Holdings, which this past week was hit with a securities suit just seven weeks after its IPO. These cases underscore the securities litigation vulnerability of IPO companies, which in turn has important implications. 
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