In a closely-watched case, the U.S. Supreme Court held that to establish standing to sue, a claimant who alleged that inaccurate information on the Spokeo website about him violated the Fair Credit Reporting Act must show that the supposed FCRA violation caused him “concrete” harm. Defense-side advocates had hoped that the Court would strike down the plaintiffs’ claims in the case and help stem the flow of proliferating “no injury” class action litigation under the FCRA and other federal statutes such as the TCPA and the ADA. However, the Court’s did not strike down the plaintiffs’ claim, but instead remanded the case for the Ninth Circuit to determine whether or not the claimant’s allegations met the “concrete harm” requirements to establish standing. Though the holding is narrow, there is language in the Court’s opinion that may prove helpful for defendants in other cases. A copy of the Court’s May 16, 2016 opinion in Spokeo, Inc. v. Robins can be found here. Continue Reading U.S. Supreme Court: To Establish Standing, Statutory Claimant Must Allege “Concrete” Injury
Two Things D&O Insurers Regularly Get Wrong
Readers familiar with my background know that while I have spent the last ten years representing policyholders, I spent the first 25 years or so of my career on the insurer side of the aisle, first as a lawyer representing insurers and later as an insurer employee. Because of that long prior experience, I am generally able to see the insurer’s side of most issues, even when I am advocating on behalf of a policyholder. Though I generally can see where the insurer is coming from, there are two issues that I think the insurers regularly get wrong. Both of these issues arise in the context of private company D&O insurance. The first relates to the wording of the contractual liability exclusion. The second involves the wording of the professional liability exclusion. I discuss both of these issues below. Continue Reading Two Things D&O Insurers Regularly Get Wrong
Guest Post: Independent Directors in India: Risk Exposures, Safeguards, and Insurance Protection
In the following guest post, Umesh Pratapa takes a look at the law in India governing the duties and responsibilities of independent directors, and discusses the ways that independent directors can manage their exposures and safeguard themselves from liability, and protect themselves with D&O insurance. Umesh is an independent insurance consultant in India. I would like to thank Umesh for his willingness to publish his article 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 Umesh’s guest post. Continue Reading Guest Post: Independent Directors in India: Risk Exposures, Safeguards, and Insurance Protection
The Commemorative Edition Tenth Anniversary Frisbee
As I hope readers know, The D&O Diary is celebrating its tenth anniversary this week. Because I want everyone to be able to join the celebration, the anniversary activities include a special offer. As along as supplies last, any reader who wants a commemorative edition D&O Diary Tenth Anniversary Frisbee can have one, for free. Free, as in no charges. Nada, rien, zilch.
There is, however, one little catch. Continue Reading The Commemorative Edition Tenth Anniversary Frisbee
Will Disclosure-Only Settlements in Merger Objection Suits Live On Outside Delaware?
When Delaware Chancellor Andre Bouchard rejected the proposed disclosure-only settlement in the litigation arising out of Zillow’s acquisition of Trulia, there was some belief that his decision represented the death knell for these kinds of settlements in merger objection lawsuits. There is indeed some evidence that the number of merger objection lawsuits filed has declined. However, as discussed in an April 29, 2016 Washington Legal Foundation article by attorneys Anthony Rickey and Keola R. Whittaker (here), “Delaware’s sister courts continue to approved disclosure only settlements and award six-figure attorneys’ fees.” As discussed below, the net effect of Delaware’s hostility to disclosure only settlements may not necessarily be that fewer of these kinds of cases get filed, it may be that weaker cases are “driven to other jurisdictions.” Continue Reading Will Disclosure-Only Settlements in Merger Objection Suits Live On Outside Delaware?
The Tenth Anniversary Issue
I started The D&O Diary with my first blog post on May 10, 2006. Ten years later, I am about to celebrate the blog’s tenth anniversary. It has been a great ten years for me, and to celebrate the milestone, I have posted this special tenth anniversary issue. Following a brief reflection below on ten years of blogging, I have posted three lists: a list of frequently asked questions; a list of my top ten favorite noninsurance-related posts; and a list of my top ten favorite travel post pictures. In addition, to allow everyone to be a part of the celebration– and even more importantly, to ensure that everyone reads this post all the way to the end– I have also included a special Tenth Anniversary offer to readers. Continue Reading The Tenth Anniversary Issue
Social Activist CEOs and Their Duties to Shareholders
I am sure many readers saw Monica Langley’s front page Wall Street Journal article earlier this week about Salesforce CEO Marc Benioff and how he uses his position to advance social causes he favors, including most recently, his efforts to combat state legislation concerning transgender bathroom use. The Journal article suggests that Benioff has launched a “new era of corporate social activism.” As the article details, Benioff’s efforts have drawn praise in some quarters, criticism in others. In a May 3, 2016 post on his eponymous blog (here), UCLA Law Professor Stephen Bainbridge raises some interesting questions about the compatibility of Benioff’s activities with traditional notions of corporate officers’ duties to shareholders. Continue Reading Social Activist CEOs and Their Duties to Shareholders
Guest Post: Cyber-Liability Insurance and the Retroactive Date Exclusion
Cyber liability insurance is a relatively new product and many of the terms and conditions found in cyber-liability policies are as yet untested in the courts. In this guest post, Stephen O’Donnell of the Steptoe & Johnson law firm takes a look at two particular standard features of the cyber liability insurance policies, the retroactive date and policy inception date exclusions, and the potential for these exclusions to preclude coverage for the very kind of exposures that are the reasons most purchasers buy the insurance.
I would like to thank Stephen for his willingness to publish his 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 Stephen’s guest post.
Continue Reading Guest Post: Cyber-Liability Insurance and the Retroactive Date Exclusion
Private Company Management Liability Insurance Tune-Up Tips
The private company management liability insurance environment is constantly changing. The liability environment is constantly evolving. Because of the changes in liabilities and exposures and because of the competitive nature of the insurance marketplace, the available terms and conditions are constantly changing as well. Unfortunately, all too often, some private companies simply renew their management liability insurance programs year after year, without ensuring that their policies contain the most up-to-date terms and conditions available. In order for companies assess whether their policies are current, I have listed some of the important items for companies to look for in their policies. I have added some additional comments below, as well. Continue Reading Private Company Management Liability Insurance Tune-Up Tips
The Yates Memo: What Impact So Far?
It has now been seven months since the U.S. Department of Justice announced — in the form of a September 9, 2015 memo from Deputy Attorney General Sally Yates — that it was adopting a policy focused on individual accountability for corporate wrongdoing. The keystone of the policy embodied in the Yates memo is that for companies to receive cooperation credit, they must completely disclosure “all relevant facts about individual misconduct.” As discussed below, the Yates memo is having an impact in a number of ways. However, according to an April 22, 2016 publication from the Clifford Chance law firm (here), the Yates memo may be having unintended consequences – it may actually be deterring companies from divulging information. Continue Reading The Yates Memo: What Impact So Far?