In the wake of the era of corporate scandals, Congress enacted the Sarbanes-Oxley Act. Section 406 of the Act required the SEC to promulgate rules requiring reporting companies to disclose whether or not they have adopted a code of ethics for its financial officers. The SEC subsequently issued rules implementing this directive, and as a result companies facing the new disclosure obligations adopted codes of ethics. Continue Reading Ninth Circuit: Ethics Code Violations Insufficient to State Securities Law Claim
Latest Twist in the Merger Objection Lawsuit Saga: New York Appellate Court Approves Disclosure-Only Settlement
After the Delaware courts in a series of decisions culminating in the January 2016 ruling in the Trulia case showed their hostility to disclosure-only settlements of merger objection lawsuits, commentators asked whether this development might mean the end of the merger objection lawsuit curse. Since that Delaware court’s decision in the Trulia case, plaintiffs’ lawyers increasingly are filing merger objection lawsuits outside Delaware, primarily in federal court. This shift in turn raises the question of the extent to which the courts in other jurisdictions will follow the principles the Delaware court set out in the Trulia case. The jurisdictional shift also raises larger cases about the future direction of merger objection litigation. A recent decision from a New York intermediate appellate court provides important perspective on many of these questions.
A February 2, 2017 opinion from the New York Appellate Divisions, First Department, applying New York law, reversed a lower court’s rejection of the disclosure-only settlement of a suit that had been filed in connection with Verizon’s proposed acquisition of Vodafone subsidiaries holding ownership interests in Verizon Wireless. The decision expressly considered the Delaware courts’ concerns in Trulia and other cases about disclosure-only settlements, but nevertheless not only reversed the lower court’s rejection of the settlement, but remanded the case for the lower court to consider a fee award for the plaintiffs’ counsel. The New York court’s decision in the Verizon case presents a number of interesting and important suggestions the future direction of merger objection lawsuits. The New York appellate court’s opinion can be found here. Continue Reading Latest Twist in the Merger Objection Lawsuit Saga: New York Appellate Court Approves Disclosure-Only Settlement
The 2017 PLUS D&O Symposium in a Snowy New York City
It was another great D&O Symposium in New York City this week. The show went on despite the huge blizzard that blew through the city on the morning of the Symposium’s second day. The turnout was once again great, the panels were excellent, and we all made it through the snowstorm together. Continue Reading The 2017 PLUS D&O Symposium in a Snowy New York City
Guest Post: The Importance of the Business Judgment Rule
The business judgment rule is one of the important principles involved when questions of board and director liability are raised. In the following guest post, Bernard Sharfman, an associate fellow of the R Street Institute and a member of the Journal of Corporation Law’s editorial advisory board, takes a look at the way that the business judgment rule is often presented and understood. Bernie’s guest post is a summary of his longer academic paper on the same topic, which can be found here. This post previously appeared on the Harvard Law School Forum on Corporate Governance and Financial Regulation. I would like to thank Bernie 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 publish a guest post. Here is Bernie’s guest post. Continue Reading Guest Post: The Importance of the Business Judgment Rule
Germany in February
The D&O Diary is on assignment in Germany this week for meetings in Frankfurt, with brief opportunities to look around in some other places as well. I have been to Germany during the winter before; I know it can be chilly, and it can snow, too. But during my jetlag recovery visit to Freiburg, I was fortunate to enjoy some pre-Spring warmth and sunshine, as reflected in the picture at the top of the post. Continue Reading Germany in February
Guest Post: Supreme Court Nominee’s Skeptical View of Securities Litigation, Agency Deference
President Trump’s nomination of Tenth Circuit Justice Neil Gorsuch to fill the Supreme Court seat vacated by the late Justice Antonin Scalia has attracted a great deal of commentary and raised a host of questions about the proposed new Justice’s views on a variety of different subjects. In the following guest post, attorneys from the Paul Weiss law firm take a look at the proposed Justice’s past writings and opinions on securities litigation and agency deference questions. I would like to thank the Paul Weiss attorneys for allowing me to publish their 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 the Paul Weiss attorneys’ guest post. Continue Reading Guest Post: Supreme Court Nominee’s Skeptical View of Securities Litigation, Agency Deference
Insured vs. Insured Exclusion: No Coverage When Claim Includes Both Non-Insured and Insured Claimants
As I readers of this blog well know, a frequently recurring D&O insurance question is whether or not the policy’s insured vs. insured exclusion operates to preclude coverage. One of the many issues that can arise under the exclusion is whether or not the exclusion precludes coverage if the underlying claim is brought both by claimants that are insured persons under the policy and persons that are not insured persons. In a January 30, 2017 decision applying Florida law (here), Southern District of Florida Judge Beth Bloom ruled that a condominium association’s D&O insurance policy’s insured vs. insured exclusion barred coverage for the a claim brought by two claimants, one of whom was insured under the policy and one of whom was not. Continue Reading Insured vs. Insured Exclusion: No Coverage When Claim Includes Both Non-Insured and Insured Claimants
Cornerstone Research: Securities Lawsuit Filings Rise to Highest Level in 20 Years
According to the latest annual securities litigation survey, securities class action lawsuit filings were at “record” levels in 2016. A surge of federal court merger objection lawsuit filings during the year accounted for much of the activity, but even so-called “traditional” securities lawsuit filings were at elevated levels, according to report, which was release jointly by Cornerstone Research and the Stanford Law School Class Action Clearinghouse. The January 31, 2017 report, entitled “Securities Class Action Filings: 2016 Year in Review,” can be found here. Cornerstone Research’s and the Stanford Law School Class Action Clearinghouse’s January 31, 2017 press release can be found here. Continue Reading Cornerstone Research: Securities Lawsuit Filings Rise to Highest Level in 20 Years
Guest Post: D&O Insurance Implications as Deferred Prosecution Agreements Take Off in the U.K.
On January 17, 2017, the U.K.’s Serious Fraud Office announced that it had entered into a significant Deferred Prosecution Agreement (DPA) with Rolls-Royce PLC following its approval by Sir Brian Leveson. The agreement followed an extensive investigation of alleged bribery involving the company’s operations in a number of different countries. The full text of the deferred prosecution agreement can be found here. In the following guest post, Mark Sutton and Karen Boto of the Clyde & Co law firm take a look at the agreement and examine the agreement’s D&O insurance implications. I would like to thank Mark and Karen for their willingness to publish their 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 Mark and Karen’s guest post. Continue Reading Guest Post: D&O Insurance Implications as Deferred Prosecution Agreements Take Off in the U.K.
Record Setting Securities Suit Filing Pace Accelerates Into New Year
As the various annual securities suit filing reports have been coming out, it has become clear that federal securities class action lawsuit filings were at record levels in 2016, largely as a result of a rise of merger objection lawsuit filings in federal court. Now that 2017 is well underway, it is clear that the heightened pace of securities suit filing has continued, and arguably even accelerated, in the New Year. Continue Reading Record Setting Securities Suit Filing Pace Accelerates Into New Year