Any question that litigation funding has become a very big business was completely eliminated by the December 14, 2016 announcement of the merger between Burford Capital Ltd., the world’s largest publicly traded litigation funding firm, and GKC Holdings, LLC, the parent company of Gerchen Keller Capital, the largest privately held litigation funding firm. When the combination is completed the merged company will have $2 billion committed to litigation and a current portfolio of more than $1.2 billion in litigation investments, with hundreds of millions of dollars of capital available for further litigation investments. Continue Reading A Watershed Event in Litigation Funding Industry and More Thoughts About Litigation Funding
Data Breach-Related Shareholder Derivative Lawsuit Filed Against Wendy’s
Cyber-breach related D&O lawsuits have not fared particularly well. Indeed, after the shareholder derivative lawsuit against the board of Home Depot was recently dismissed, it was unclear what the future direction for cybersecurity litigation against corporate officials might be. But though the future direction of this type of litigation is unclear, it seemed unlikely despite the poor track record that we had seen the last of these cases. Among other things, it seemed likely that entrepreneurial plaintiffs’ lawyers would continue to try to identify their litigation opportunity for these kinds of cases. As it has now turned out, we didn’t have to wait long for confirmation that despite the dismissals we had not seen the last of the cyber breach-related D&O lawsuits. Continue Reading Data Breach-Related Shareholder Derivative Lawsuit Filed Against Wendy’s
Class Action Litigation in Australia Poised for Further Growth
Class actions have been a big deal in the U.S. for a long time now, but what is really interesting is that class actions (and other forms of collective action) are now becoming a big deal outside of the U.S. One place in particular where class actions have become a very big deal indeed is in Australia. As detailed in a recent study, class actions have in recent years become a well-established part of Australia’s litigation landscape. Recent judicial developments seem likely to make Australia an even more attractive jurisdiction for class action litigation. Continue Reading Class Action Litigation in Australia Poised for Further Growth
Bribery-Related Follow-On Securities Suit Filed Against U.K.-Based Rio Tinto
In yet another securities suit following on news of a bribery or corruption investigation, and in the latest securities suit involving a global mining company, on December 12, 2016, a plaintiff shareholder filed a securities class action lawsuit in the Southern District of New York against the world’s second-biggest mining company, U.K.-based Rio Tinto plc, and certain of its current and former officers. The complaint arises out of the company’s recent announcement of a corruption investigation involving its operations in the Simandou iron mine, located in southern Guinea. As discussed below, this latest lawsuit exemplifies a number of the key securities litigation filing trends that have arisen this year. Continue Reading Bribery-Related Follow-On Securities Suit Filed Against U.K.-Based Rio Tinto
Will the DOJ Priorities in the Yates Memo Continue in the New Administration?
Among the many questions surrounding the new incoming Presidential administration is the question of what direction the Trump administration will go with criminal and regulatory enforcement. And among the many specific questions under that topic heading is the question of whether or not the Department of Justice will continue the current agency policy of giving priority to holding individuals accountable for corporate wrongdoing. Based on early signs, all indications are that the current policy, embodied in the so-called Yates Memo, will continue under the new administration. Continue Reading Will the DOJ Priorities in the Yates Memo Continue in the New Administration?
Guest Post: Supreme Court Rules on Key Insider Trading Case
On December 6, 2016, the U.S. Supreme Court issued its opinion in Salman v. United States (here), a case in which the court was asked to consider what is sufficient to establish a “personal benefit” in order to support an insider trading conviction, as I discussed here. In the following guest post, attorneys from the Paul Weiss law firm take a look at the Court’s Salman decision. I would like to thank the attorneys from Paul Weiss for their willingness to allow me to publish their article here. 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 the Paul Weiss attorneys’ guest post. Continue Reading Guest Post: Supreme Court Rules on Key Insider Trading Case
Book Review: “Securities Litigation: Law, Policy, and Practice”
It is a truth universally acknowledged that a public company D&O insurance practice requires knowledge of the federal securities laws. And so like many others in our field, I have had to back-and- fill a working knowledge of the securities laws. Due to the way I acquired this knowledge, there are some bare spots – in particular, I sometimes am hamstrung because I lack the perspective that would allow me to see how it all fits together. So every now and then, I need to step back and reengage with the basics. All too often I find myself relying on the indifferent result of a Google search for this gap-filling. I have never really found a good, manageable source to use for caulking those securities law gaps. Until now, that is. Continue Reading Book Review: “Securities Litigation: Law, Policy, and Practice”
Ontario Statute: Directors and Officers of Dissolved Corporations May be Held Liable for Environmental Liabilities
A new Ontario statutory provision affecting the liability of directors and officers of dissolved corporations for environmental remediation costs recently caught my attention. As discussed in a December 5, 2016 memo from the Dentons law firm (here), apparently Ontario corporations have been in the past voluntarily dissolving in order to try to avoid environmental clean-up. Under provisions of the Forfeited Corporate Property Act 2015, which comes into force on December 10, 2016, along with related amendments to the Ontario Business Corporations Act, corporate dissolution will no longer protect former directors and officers from environmental liabilities. This statutory change, which is consistent initiatives in a number of jurisdictions to try to impose liability on corporate and officers without regard to culpability, raises a number of concerns and also highlights a number of larger issues. Continue Reading Ontario Statute: Directors and Officers of Dissolved Corporations May be Held Liable for Environmental Liabilities
Supreme Court: Gift of Insider Information to Friends and Family Supports Insider Trading Conviction
In one of the most watched business cases on the U.S. Supreme Court’s docket this term, the Court on December 6, 2016 unanimously affirmed the Ninth Circuit’s ruling upholding the insider trading conviction of Bassam Salman. Salman had traded on tips he received from the brother of a former Citigroup investment banker; Salman himself was married to the sister of the Citigroup banker. The case raised the question of whether or not the “personal benefit” that the tipper received from passing along the trading information must be pecuniary in nature in order to support an insider trading conviction for the tippee.
The Supreme Court, in an opinion written by Justice Samuel Alito, held that a jury could infer that the tipper personally benefited from making a gift of confidential information to a trading relative. The Court rejected the Second Circuit’s suggestion in its 2014 opinion in U.S. v. Newman that the tipper must also have received something of a “pecuniary or similarly valuable nature.” The Supreme Court’s December 6, 2016 opinion in the Salman case can be found here. Continue Reading Supreme Court: Gift of Insider Information to Friends and Family Supports Insider Trading Conviction
RBS Reaches $1 Billion Partial Settlement of Credit Crisis-Related Collective Investor Action
In the latest signal of the increasing significance of collective investor actions outside of the U.S., on December 5, 2016, Royal Bank of Scotland agreed to pay £800 million ($1 billion) in a settlement with three of the five investor claimant groups that had sued the bank in the U.K. for alleged misrepresentations in connection with its £12 billion pound fundraising effort just months before the British government bailed out the bank. The case will go forward as to the remaining claimant groups, with whom the bank will now attempt to reach a settlement. If the bank is unable to settle with the remaining claimant groups, the case could proceed to trial in March 2017. The partial settlement is by far the largest collective investor action recovery in the U.K. RBS’s December 5, 2016 SEC filing to which its press release announcing the partial settlement is attached can be found here. A December 5, 2016 Reuters article describing the settlement can be found here. Continue Reading RBS Reaches $1 Billion Partial Settlement of Credit Crisis-Related Collective Investor Action