According to NERA Economic Consulting’s latest annual securities litigation report, there were a “record number” of securities class action lawsuit filed in 2016. The January 23, 2017 report, which is entitled “Recent Trends in Securities Class Action Litigation: 2016 Full-Year Review” (here), attributes the growth in filings during the year largely to the number of federal court merger objection lawsuits, which more than doubled from the previous year. NERA’s January 23, 2017 press release about the report can be found here. Continue Reading NERA Economic Consulting: Record Number of Securities Suit Filings in 2016
More About Litigation Reform Bylaws: Will “No Pay” Provisions Succeed Where Forum Selection Bylaws Have Failed?
In recent years, we approached the point where nearly every M&A transaction attracted one or more merger objection lawsuit, which all too often was resolved through a “disclosure only settlement” in which the defendant company agreed to make supplemental deal document disclosures and to pay the plaintiffs’ attorneys fees, in exchange for a comprehensive release for the defendants. However, the courts in Delaware, the state where the majority of these cases were filed, have recently shown – in a series of rulings culminating with the Trulia decision last January — their unwillingness to approve these kinds of disclosure -only settlements where there is no material benefit for the company or its shareholders. Continue Reading More About Litigation Reform Bylaws: Will “No Pay” Provisions Succeed Where Forum Selection Bylaws Have Failed?
The Better Angels of Our Nature
There have been few darker hours in our country’s history than March 4, 1861, the date of Abraham Lincoln’s First Inaugural Address. Seven states had already seceded from the Union and armed conflict loomed. While denouncing secession as anarchy, Lincoln’s address was largely a call for reconciliation. Desperately hoping to avoid the coming conflict, Lincoln ended the speech with an eloquent and impassioned plea: Continue Reading The Better Angels of Our Nature
Guest Post: Supreme Court to Review Whether Statute of Limitations Applies to SEC Disgorgement Claims
Last Friday, the U.S. Supreme Court granted cert in two cases involving the limitations periods under the federal securities laws. One case, as I noted in a post earlier this week, will address the question of whether or not the filing of a securities class action tolls the Securities Act’s statue of repose. The second case, Kokesh v. Securities and Exchange Commission (about which refer here), involves the question of whether or not the five-year statute of limitations applicable to SEC enforcement actions seeking civil penalties applies to disgorgement claims. In the following guest post, attorneys from the Paul Weiss law firm take a look at the case and the issues it presents, as well as its potential implications. I would like to thank the Paul Weiss attorneys for their willingness to publish their 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 the Paul Weiss attorneys’ guest post.
Continue Reading Guest Post: Supreme Court to Review Whether Statute of Limitations Applies to SEC Disgorgement Claims
Guest Post: The Nuts & Bolts of SEC Investigations & Enforcement
The SEC is the primary regulatory body charged with the enforcement of the U.S. securities laws. Most insurance and legal professionals are well-aware of the agency and familiar with its regulatory role. But in an era that has been (at least up until now) characterized by heightened enforcement activity, many of those professionals may be unfamiliar with the agency’s investigative and enforcement process and protocols. In the following guest post, Ted Carleton and Tammy Yuen of the Skarzynski Black law firm and John Sikora of the Latham & Watkins law firm provides a basic outline of the SEC’s investigative and enforcement processes, reviews some recurring D&O insurance coverage issues arising from SEC investigations and enforcement actions, highlights some of the current issues at the agency, and take a look ahead at what the change in administration may mean. I would like to thank Ted, Tammy, and John for their willingness to publish their 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 Ted, Tammy and John’s guest post. Continue Reading Guest Post: The Nuts & Bolts of SEC Investigations & Enforcement
Guest Post: A Focus on Directors’ and Officers’ Risks in India
As readers of this blog know well, liability claims against corporate directors and officers is an increasingly global phenomenon. A number of different factors are contributing to the globalization of D&O liability, including legislative changes, changes in regulatory enforcement activity, and the rise of litigation financing. In the following guest post, Richa Shukla of Khaitan Legal Associates, Nilam Sharma of Nilam Sharma Ltd., and Joel Pridmore from Munich Re, Australia, examine the changing environment for D&O liability in India. I would like to thank Richa, Nilam, and Joel for allowing me to publish their article 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 Richa, Nilam, and Joel’s guest post. Continue Reading Guest Post: A Focus on Directors’ and Officers’ Risks in India
Supreme Court Agrees to Hear Securities Act Statute of Repose Tolling Question
The U.S. Supreme Court has agreed to take up a case arising out of the credit crisis-era collapse of the Lehman Brothers investment bank, in order to decide whether or not, under principles known as the “American Pipe doctrine,” the filing of a securities class action lawsuit tolls the Securities Act’s statute of repose. In its 1974 American Pipe decision, the Court held that the filing of a class action suit tolls the applicable statute of limitations; in this latest case, the Court must resolve a split between the federal circuit courts and decide whether a class action lawsuit filing also tolls the applicable statute of repose. Though the case involves seemingly arcane issue, it could have very important practical implications, particularly with respect with respect to the timing of class members’ decisions whether or not to opt-out of the class. The U.S. Supreme Court’s January 13, 2017 order granting the petition of the plaintiff for a writ of certiorari in California Public Employees’ Retirement System v. ANZ Securitites Inc. can be found here. Continue Reading Supreme Court Agrees to Hear Securities Act Statute of Repose Tolling Question
Eighth Circuit: Insured vs. Insured Exclusion Precludes Coverage for Claims Brought by Both Insured and Non-Insured Persons
You know that the Insured vs. Insured Exclusion is a frequent source of D&O insurance coverage disputes when on consecutive days two federal appellate courts issue opinions interpreting and applying the provision. As I noted yesterday, on January 10, 2017, it was the Ninth Circuit’s turn; the next day, it was the Eighth Circuit’s turn. On January 11, 2017, the Eighth Circuit affirmed a district court’s holding that the Insured vs. Insured exclusion in a grocery store chain’s D&O insurance policy precluded coverage for claims brought by the chain’s founder’s daughter, who had served briefly as a director of the company. The appellate court also affirmed the district court’s holding that the exclusion precluded coverage not just for the daughter’s claims, but also for the claims of her two children, who were shareholders but not directors of the company. The court, applying Minnesota law, held that the exclusion precluded coverage for both the claims of the daughter (who was an insured person) and those of the children (who were not). The Eighth Circuit’s opinion can be found here. Continue Reading Eighth Circuit: Insured vs. Insured Exclusion Precludes Coverage for Claims Brought by Both Insured and Non-Insured Persons
Ninth Circuit: Insured vs. Insured Exclusion Unambiguously Excludes FDIC’s Failed Bank Claims
During the bank failure wave that followed the global financial crisis, one of the recurring questions was whether or not the failed banks’ D&O insurance policies’ insured vs. insured exclusion precluded coverage for the FDIC’s liability claims as receiver for the failed bank against the banks’ former directors and officers . As I noted in a post late last year, the general consensus among the federal appellate courts is that the exclusion’s applicability to FDIC-R claims is ambiguous and therefore that the exclusion does not preclude coverage. As I also noted, however, there was an exception to this consensus, reflecting important wording differences sometimes found in the exclusion.
Consistent with this exception to the consensus, on January 10, 2017, the Ninth Circuit, applying California law, held in an unpublished opinion that the applicable D&O policy’s insured vs. insured exclusion was not ambiguous and precluded coverage for the FDIC’s claims against the former directors and officers of the failed Security Pacific bank. Unlike the exclusion found in many D&O insurance policies, the policy at issue in the Ninth Circuit’s case specifically precluded coverage for claims brought by any “successor” or “receiver.” The Ninth Circuit’s opinion can be found here. Continue Reading Ninth Circuit: Insured vs. Insured Exclusion Unambiguously Excludes FDIC’s Failed Bank Claims
Setting the “Blow Provisions” in Securities Class Action Settlement Agreements
Among the important parts of any securities class action lawsuit settlement agreement are the so-called “blow provisions,” which provide settling defendants with an option to terminate the settlement agreement if a specified threshold of investors elect to opt out of the settlement. Among other key consideration with respect to blow provisions is that the threshold specified must be carefully structured to allow defendants to terminate or renegotiate the class settlement when opt-outs reach an unacceptable level. In a December 8, 2016 research paper entitled “Considerations for Blow Provisions in Securities Class Action Settlements” (here), Cornerstone Research takes a look at the various ways that blow provisions can be structured, and identifies the pitfalls with the various alternatives. Continue Reading Setting the “Blow Provisions” in Securities Class Action Settlement Agreements