For a period beginning in 2006, plaintiffs’ lawyers filed a wave of options backdating securities class action lawsuits. Almost all of these cases have now been resolved, although one case continues to grind through the appellate courts. Now that the cases are largely resolved, it may be time to calculate the final tally. In the accompanying guest post, Adam Savett, Director, Class Action Services at KCC, surveys the cases, their dismissal rates and their settlements. His guest post concludes with a link to his presentation on the options backdating-related securities litigation.

 

 

I would like to thank Adam for his willingness to publish his guest post on my site. I welcome guest posts and articles from responsible commentators on topics of interest to readers of this blog. If you are interested in publishing a guest post, please send me a note by e-mail. Here is Adam’s guest post:

 

 

 

Starting in 2006, and continuing for more than a year, a series of academic reports and articles in the Wall Street Journal suggested that a number of publicly traded companies had improperly retroactively dated the grant and exercise price of stock options issued to corporate officers to a time preceding a rally in the price of the underlying shares. The revelation of this practice, commonly called options backdating, led to much litigation. A substantial portion of that litigation took the form of securities class actions, typically filed against a publicly traded company (the issuer) and certain officers and directors of the issuer.

 

 

The first such securities class action was filed on May 19, 2005 against Brocade Communications.

 

 

Ultimately 39 federal securities class actions were brought which contained allegations that directors or officers had engaged in or allowed stock options backdating to occur.

 

 

Of those 39 cases, 31 ultimately settled and 8 were dismissed.

Some early prognosticators suggested that the entirety of the cases had little if any merit, and might ultimately collectively be settled for less than $1 billion. Though we appreciate any and all help from our prognosticators, most were significantly off in predicting outcomes in this group of cases.

 

 

The settlements were not insubstantial, having a combined value of more than $2.38 Billion, though a sizeable portion of that is from UnitedHealth Group’s $925.5 million settlement. The average of all of those settlements is approximately $77 million, while the median of the settlements is $18 million.

The dismissal ratio was also somewhat out of line with historical trends, with 82% settling, while historically only approximately 65% of securities class actions settle.

 

 

Now, nearly eight years later, the story is almost complete.

We have to say almost, as the plaintiffs in the Apollo Group litigation have appealed the dismissal of their complaint to the Ninth Circuit Court of Appeals.

 

 

Now, they are not the only plaintiffs to appeal, as plaintiffs in three of the other dismissed cases also appealed their dismissal orders. In the Cyberonics, Jabil Circuit, and Witness Systems, the plaintiffs all unsuccessfully sought reversal of the dismissal of their complaints. The dismissals in the Jabil & Witness Systems cases were affirmed by the Eleventh Circuit while the Cyberonics dismissal was affirmed by the Fifth Circuit.

 

 

While students of securities litigation know that each case is unique, and the Apollo Group case is pending before the Ninth Circuit, the decision to launch a fourth appeal after three defeats suggests a certain tenacity on the part of that law firm.

 

 

The opening brief was filed by the Plaintiffs on December 10, 2013 and the defendants answering brief is due to be filed in early January of next year. Oral argument has not yet been scheduled in the Apollo Group appeal for.

 

 

After the Ninth Circuit renders a decision, we will update our analysis to reflect the outcome. Our current analysis of these cases can be found here.

 

Of the different contexts within which securities class action lawsuits arise, one of the most significant is the bankruptcy context. As detailed in the following guest post from Michael Klausner and Jason Hegland of Stanford Law School, securities class action lawsuit arising in bankruptcy are different from cases involving solvent companies. Their guest post provides a detailed overview of the differences. The authors also reach some interesting conclusions about the importance of D&O insurance for the resolution of securities class action lawsuits arising in connection with bankrupt companies.

 

 

I would like to thank Mike and Jason for their willingness to publish their guest post on this site. I welcome guest posts from responsible commentators on topics of interest to readers of this blog. Anyone interested in publishing a guest post should contact me directly. Here is Mike and Jason guest post.

 

 

 

One out of every seven securities class actions filed since 2000 involves a company in bankruptcy. This important subset of class actions has some important features that warrant empirical examination. In this blog, we use our database of securities class actions filed from 2000 to the present to shed light on how cases involving bankrupt companies differ from cases against solvent corporations.[i] Specifically, we address the following questions.

 

·         Are cases involving bankrupt corporations more successful than cases against solvent corporations?

 

·         Is the timing of settlement affected?

 

·         How protective is D&O insurance for officers and directors when a company is bankrupt? Specifically, how much does D&O insurance pay out and how frequently do individual officers or directors make personal, out-of-pocket payments into a settlement?

 

·         Is there a basis for inferring that additional Side A coverage would have provided more protection for those individuals who paid into settlements?

 

Outcomes in Cases Involving Bankrupt Companies

As a company descends into insolvency, there may be incentives for management to shade financials or to describe its business in more rosy terms than is warranted. In addition, once a company has gone bankrupt, disclosures that were accurate when made may not look so accurate in hindsight. This could affect a judge’s ruling on a motion to dismiss and a jury’s view of a case if it went to trial. Thus, it would not be surprising to find that securities class actions involving bankrupt companies tend to be successful more often than cases against solvent companies.  On the other hand, perhaps plaintiffs’ attorneys over-rely on such hindsight bias—or are excessively affected by it themselves—and file weak cases against bankrupt companies only to see them dismissed for failure to plead intent with sufficient particularity. 

 

As shown in Table 1, the data indicate that cases involving bankrupt companies are in fact successful for plaintiffs more than are cases against solvent companies. Among cases filed since 2000, only 29% of cases involving bankrupt companies were dismissed or voluntarily dropped, compared to 46% of cases against solvent companies. The low rate of dismissal for these cases suggests that they may be more meritorious than cases against solvent companies. This inference is supported by the fact that cases involving bankrupt companies more often have parallel SEC enforcement actions in which severe penalties were imposed than do cases against solvent companies—specifically, 25% compared to 15%.[ii]

Table 1: Case Outcomes

(Cases filed 2000-2010 and resolved by 2013)

 

 

* Difference is rates of dismissal and settlement significant at the .001 level

Note: These are cases dismissesd on a motion to dismiss. Another 25 cases were dismissed on motions for summary judgment — one involving bankrupt companies and 24 involving solvent companies.

 

Settlement Timing

An explanation for the low rate of dismissal in these cases could be that they settle quickly, before the motion to dismiss is ruled on. The data show, however, that this is not the explanation. In fact, more often than cases against solvent companies, these cases tend to settle after the ruling on the first motion to dismiss.  Figure 1divides the litigation process into three phases: (a) early pleading, defined as the period before the ruling on the first motion to dismiss, (b) late pleading, defined as the period after an initial dismissal without prejudice but before a final ruling either to dismiss or to allow the case to proceed to discovery, and (c) discovery, defined as the period between a denial of the plaintiffs’ motion to dismiss and the end of trial. The graph shows that cases involving bankrupt companies tend to settle in the late pleading period and in the discovery period somewhat more often than do cases against solvent companies.[iii]  Moreover, our data also show that among cases that reach discovery, those involving a bankrupt company tend to settle later than do cases against solvent companies. 

 

Figure 1: Settlement Timing—By Phase of Litigation

(Settlements in cases filed 2000-2010)

 

 

 

 

At first glance, the fact that these cases do not settle earlier may be surprising, since the assets available for recovery by the plaintiff class and the plaintiffs’ attorney shrink as the case proceeds. Every dollar spent on defense costs is a dollar that will be unavailable in a settlement. On the other hand, the bankruptcy process and the involvement of separate defense lawyers for the company and for individual defendants may create complications that delay settlement. In addition, perhaps defense lawyers use the shrinking nature of potential settlement funds as leverage, continuing to threaten to extend the litigation (at no cost to themselves), in order to secure a lower settlement for their clients.

 

Individual Payments into Settlements

            Apparently reflecting plaintiffs’ attorneys’ search for deep pockets (or just pockets), more individual defendants are named in cases involving a bankrupt company than in cases involving a solvent company. On average, six individual defendants are named in cases involving a bankrupt company, compared to five individuals where the company is solvent.[iv] The same pattern appears with respect to naming outside directors as defendants. Where the company is bankrupt, outside directors are named in 43% of cases, compared to 39% of cases against solvent companies, and when outside directors are named, more of them are named in cases involving a bankrupt company.[v]  (The apparent search for pockets is reflected in the naming of third parties as well. Auditors and underwriters are named in 43% of cases, compared to 19% of cases involving solvent companies.)

 

            Being named a defendant, of course, does not mean an officer or director will have to contribute to a settlement. The D&O policy provides protection, so long as limits remain and a defendant’s conduct does not result in an exclusion from coverage under the terms of the policy. In total, across all cases involving bankrupt companies, insurers paid roughly $2 billion into settlements, for an average of $13,500,000 per case (or $17,000,000 if one excludes cases in which, for whatever reason, there was no insurance payment). This is a crude measure of the amount individuals would have paid out-of-pocket if they had no insurance, since settlement amounts could have been lower in the absence of insurance. But it is clear that without D&O insurance, individual officers and directors likely would have had to contribute toward settlement out of their personal assets much more frequently, and in some cases the costs to the individuals could have been severe.

 

            Table 2 shows that out-of-pocket payments are rare. But the incidence of out-of-pocket payments is greater where the company is bankrupt than where it is solvent—11% of cases compared to 3% of cases. A close look at the 19 cases in which individuals made out-of-pocket payments where the company was bankrupt reveals that in at least some of these cases, the explanation is either that the settlement was much larger than the policy limits one would expect, as in Enron and Global Crossing, or that the conduct involved was not covered, as in Refco, where individual defendants’ misconduct landed them in jail. There are a few cases, however, in which there were no reports of glaringly fraudulent conduct, where the settlement was not unusually large and where the carrier paid a portion of the settlement, and yet individuals paid as well. While some of these cases may have involved conduct-based coverage issues, the problem may have been insufficient limits.

 

Table 2:  Individual Payments into Settlements

(Settlements in cases filed 2000-2010)

 

Note: Significant at  .001 level

 

The experience of outside directors in these cases warrants analysis as well. In earlier publications, one of us investigated outside director liability in all types of litigation: securities class actions, state fiduciary duty suits and SEC enforcement actions.[vi]  The basic finding was that outside director liability is very rare. This is due to two factors: the protection provided by D&O insurance and the difficulty of proving a case against outside directors. Some people misunderstood that article to say that outside directors were not exposed to liability risk and therefore did not need D&O insurance—the opposite of the causal relationship I intended. As shown here, D&O insurance clearly protects outside directors from out-of-pocket payments.

 

            Table 3 provides data on the liability experience of outside directors. Consistent with the earlier research, settlements of securities class actions rarely result in payments by outside directors—a total of 12 cases out of 409 settlements in cases in which outside directors were named. All but one of these cases involved bankrupt companies. Thus, while liability for outside directors is rare, where it occurs it is nearly always when the company is bankrupt.[vii]

 

Table 3: Individual Payments by Outside Directors

(Settlements in cases filed 2000-2010 in which outside director was named)

 

 

 

 

Significant at .001 level

 

Side A Coverage 

            When a company is bankrupt, Side A of a traditional policy and in some cases a separate Side-A-only policy may be all that stand between a settlement demand and a personal, out-of-pocket payment. The fact that there have been only 19 cases since 2000 involving bankrupt companies in which individuals made such payments suggests that Side A protection is effective.  In nine of these 19 cases, insurance paid into the settlements—just not enough to cover the full settlement. On average insurance paid 73% of the total amount paid in those settlements. As stated above, it is possible that additional Side A limits would have protected some of the individuals that made out-of-pocket payments.

 

*****

            In sum, cases involving bankrupt companies are different from cases against solvent companies. They are dismissed less often and they therefore settle more often. They also take longer to settle than do cases involving solvent companies. Finally, and not surprisingly, officers pay into settlements in these cases somewhat more often than they do in cases against solvent companies. On the whole, however, D&O insurance provides substantial protection to individuals in these cases, and additional Side A coverage might have provided full protection for the individuals that paid out of pocket apparently.

[i] Cases included in this study were filed between 2000 and 2010 and resolved by 2013. There are 1,779 cases in the sample, 55 of which are ongoing and are therefore excluded for certain purposes below.

 

[ii] All comparisons in this paragraph are statistically significant at the .001 level in univariate tests and multivariate tests in which we control for factors that associated with dismissal.

 

[iii] This difference is of borderline statistical significance (p < .1), in univariate and multivariate tests, when comparing early pleading settlement vs. settlement in the two later periods. If we look at cases filed since 2005, the difference between cases involving bankrupt companies and cases involving solvent companies is somewhat greater.

 

[iv] Statistically significant at the .001 level.

 

[v] Statistically significant at the .005 level.

 

[vi] See Black, Cheffins & Klausner, Outside Director Liability, 58 Stanford Law Review 1055 (2006); Klausner, The Risk of Liability for Outside Directors, PLUS Journal 2006, p. 1.

 

[vii]There were two additional cases involving solvent companies, where individuals who were technically outside directors paid into settlements. In one of these cases, the individual was affiliated with the controlling shareholder and in another he was a founder and former CEO and therefore more involved in company management than a typical outside director.

 

The U.S. Supreme Court has already taken up a case this term that potentially could alter the way private securities cases are litigated. The Court has now granted cert in a different case that could have a significant impact on ERISA stock-drop litigation. On December 13, 2013, the Court granted the petition of defendant Fifth Third Bank for a writ of certiorari in order to consider the “presumption of prudence” that the lower courts have developed with respect to ESOP fiduciaries’ decision to invest in or to maintain investments in employer stock.

 

Many ERISA stock drop lawsuit defendants have been able to rely on the presumption – often called the Moensch presumption – to obtain dismissal of the cases against them. However, a split has developed in the circuit courts over the procedural stage at which the presumption applies and how the presumption may be rebutted. The way the Court decides this case could significantly affect the ability of many ERISA lawsuit defendants to rely on the presumption at the motion to dismiss stage to try to get the cases against them dismissed. Background regarding the presumption and the details of the circuit split can be found in a recent memo from the McDermott, Will & Emery law firm (here).

 

Congress has recognized that Employee Stock Ownership Plans (ESOPs) and Eligible Individual Account Plans (EIAPs), which invest in employer stock, further an important public policy goal by encouraging employee ownership. The courts in turn have held that fiduciaries of these types of plans should not be subject to liability for investing in employer stock, as that was the reason the plans were created, consistent with the Congressional objective of fostering employee ownership. In a 1995 decision, Moensch v. Robertson (here), the Third Circuit concluded that fiduciaries of plans that required or encouraged investment in employer stock were entitled to a presumption that they acted prudently under ERISA by investing in the employer stock. This presumption could only be overcome by a showing that the plan fiduciaries abused their discretion by continuing to invest in the employer stock.

 

Several circuit courts have adopted the Moench presumption of prudence; however, the courts continue to disagree on whether the presumption can be raised at the motion to dismiss stage and how the presumption can be rebutted. The Supreme Court has now agreed to take up a case that will address these questions – and could even address the question of whether there should be a presumption at all.

 

The case now before the Supreme Court involves Cincinnati-based Fifth Third Bank and arises out the events surrounding the global financial crisis. The plaintiffs in the case are employees of the bank and participants in the company’s profit sharing plan. Participants in the plan had the option of investing the funds in their plan accounts in several different investments, including the stock of Fifth Third Bank. The bank matched a portion of an employee’s investment in their plan account with stock of the bank, although after a period the employee was free to transfer the stock match investment to other authorized investments.

 

In their complaint, the plaintiffs allege that the bank, its CEO and the plan fiduciaries breached their fiduciary duties under ERISA by maintaining significant plan investments in company stock and maintaining company stock as an investment option at a time they knew that it was imprudent to do so. The company’s share price declined as the global financial crisis unfolded.

 

The district court granted the defendants’ motion to dismiss their complaint, holding that as ESOP plan fiduciaries the defendants were entitled to a presumption that their decision to remain invested in employer stock was reasonable. The district court also found that the plaintiffs had failed to allege facts sufficient to overcome the presumption.

 

The plaintiffs appealed to the Sixth Circuit, which reversed the district court. In a September 7, 2012 opinion written by Judge Jane Stranch for a three-judge panel (a copy of which can be found here), the Court held that the district court had erred in concluding that the presumption of reasonableness applied at the motion to dismiss stage. The Sixth Circuit considered the presumption to be evidentiary, subject to factual rebuttal, and therefor not appropriate to consider and apply at the motion to dismiss stage. The Sixth Circuit court also declined to adopt the more demanding standard for rebuttal of the presumption that certain other circuit courts have adopted – that is, that the presumption may be rebutted only by a showing that fiduciaries continued to invest in the employer stock though it faced a “dire situation” – preferring a test providing that in order to overcome the presumption the plaintiffs must  show that the “a prudent man acting in a like capacity” would not have undertaken or continued the investment.

 

In its cert petition, the bank argued that the Sixth Circuit’s rulings created a split in the circuits requiring the Supreme Court to step in. The bank also argued that the appellate court had interpreted the presumption in a way that unjustifiably puts ESOP fiduciaries at risk of liability and that is inconsistent with the Congressional policy of encouraging stock ownership. In their opposition, the plaintiffs argued that there is no circuit split and that in fact the seeming differences between the Sixth Circuit and the other circuit courts was simply a reflection of the underlying facts in the respective cases and the important differences between the various plans involved.

 

The U.S. Department of Labor filed an amicus brief in which the agency urged the Court to grant cert in the case on the grounds that a split exists between the circuits. However, rather than arguing for or against the position adopted by the Sixth Circuit, the DoL argued that there should be no presumption of prudence at all, saying that “ERISA’s text and purposes do not call for the application of a presumption at any stage of the proceedings.” The DoL argued further that the judge-created presumption of prudence is based “largely on policy considerations that extend beyond ERISA’s text and are unconvincing in their own right.”

 

Discussion

The Supreme Court’s decision to take up the Fifth Third Bank ERISA case potentially could prove significant for other ERISA stock-drop case defendants. As the Morrison Foerster firm said in its December 16, 2013 memo about the Supreme Court’s decision to take up the Fifth Third Bank case, the presumption of prudence is "an important first line of defense in ERISA stock drop litigation."  If the Court concludes that the presumption cannot be raised at the motion to dismiss stage or may be rebutted at the pleading stage based on the lower rebuttal standard defined and applied by the Sixth Circuit, it could prove to be more difficult for ESOP fiduciaries to obtain dismissal of the ERISA stock-drop lawsuit filed against them.

 

As Cleveland-based Keycorp (which itself has been the target of the same kind of ERISA stock-drop lawsuits) argued in its amicus brief in support of Fifth Third Bank’s cert petition, the standards the Sixth Circuit adopted have make it  “far too easy for plaintiffs to get a meritless claim under ERISA past the pleading stage.”

 

The problem for companies subject to these kinds of cases is that even if the cases are entirely lacking in merit, the underlying allegations often go to the heart of the employer’s business operations. Discovery in these cases can be wide-ranging and expensive. The cost of discovery alone can compel corporate defendants to try to settle the case.

 

In addition, there is a tension at the core of these cases. Imbedded in the underlying allegations is a suggestion that when a company suffers reverses or its stock price drops, the ESOP fiduciaries have fiduciary obligation to liquidate plan holdings in the company stock, the ownership of which was the very reason the ESOP was formed in the first place.

 

As the Employee Benefits Law Report blog noted in a recent post about the Fifth Third Bank case, “a Supreme Court ruling that the presumption of prudence does not apply at the initial stage, or a ruling that the presumption does not apply at all, would seemingly eviscerate the statutory boundaries that favor ESOPs and likely have a significant chilling effect. Employers would have to consider whether the ESOP model remains viable and is worth the risk.”

 

The risk that the Supreme Court might jettison the presumption cannot be disregarded. The presumption is a creation of the circuit courts; while lower courts have felt compelled to grapple with it, the Supreme Court will not be so constrained. The Supreme Court certainly is not constrained to the narrower question of when the presumption applies or how it may be rebutted.

 

The situation here may be analogous to the circumstances in which the Supreme Court took up the “cause and effect” test in the Morrison v. National Australia Bank case. There may have been decades of circuit court case law interpreting the “cause and effect” test for the determination of the jurisdiction of the U.S. securities laws, but the test itself was an invention of the lower courts — like the presumption of prudence here. The Supreme Court could, as it did in the Morrison case, simply disregard the work of the lower courts and examine the question afresh based on the relevant statutory language; the fact that the DoL has urged the court to take that approach could encourage the Court to do so.

 

In any event, those of us in the professional liability insurance world now have yet another U.S. Supreme Court case to watch out for this term. As the Morrison Foerster firm said in its memo about the case, "regardless of its outcome, the case bears watching by officers, directors, and employees whose responibilities may expose them to ERISA claims for breach of fiduciary duty in connection with employee investments in company stock." The case will likely be argued around March 2014 and will be decided be the end of the current term in June.

 

The Federal Insurance Office (FIO) has – nearly two years overdue – finally published its long awaited report to Congress on its recommendations for the modernization of insurance regulation in the United States. The broadly ranging 65-page report identifies limitations in the current state-based regulatory model but does not recommend that federal regulation should displace state regulation entirely. Rather, the report proposes a hybrid model, where the current state-based system is generally preserved except where the need for greater uniformity or the requirements of an increasingly global insurance industry are best served by regulation at the federal level.

 

The FIO’s December 2013 report, entitled “How to Modernize and Improve the System of Insurance Regulation in the United States,” can be found here. The FIO’s December 12, 2013 press release about the report can be found here.

 

Section 502 of the Dodd-Frank Act created the FIO as a unit within the U.S. Department of Treasury to monitor all aspects of the insurance industry and, among other things, to identify issues contributing to systemic risk. Section 502 (p) of the Act expressly provided that “not later than 18 months after the date of the enactment of this section, the [FIO’s] Director shall conduct a study and submit a report to Congress on how to modernize and improve the system of insurance regulation in the United States.” The Act was enacted in late July 2010, and the modernization report was officially due on January 21, 2012, nearly two years ago. In preparing the report the FIO solicited public comment and also held public hearings as well.

 

The Dodd Frank Act was of enacted in the wake of the global financial crisis, in order to try to address the issues that were thought to have caused the crisis. As the FIO’s recent report acknowledges, one of the critical developments at the peak of the crisis was the near collapse of insurance giant AIG. However, it is worth noting that the problems that led to AIG’s near demise did not involve its insurance operations (which were and are regulated at the state level), but rather involved the company’s alternative financial products division (which theoretically at least was regulated at the federal level).

 

Thus even though a critical part of financial crisis was the near collapse of one of the largest participants in the global insurance industry, that development in and of itself does not present a case for setting aside the current model of insurance regulation in the United States. Indeed, the insurance industry generally weathered the financial crisis in reasonable good order, which could be interpreted to make the case for preserving the current regulatory model.

 

On the other hand, as the FIO report notes, the current balkanized regulatory model, involving as it does 56 different insurance regulators (if the regulators in the District of Columbia and territories are included in the count) “creates inefficiencies and burdens for consumers, insurers, and the international community.” The report observed that “the need for uniformity and the realities of globally active, diversified financial firms compel the conclusion that federal involvement of some kind in insurance regulation is necessary.”

 

However, the FIO does not suggest that the limitations in the current system imply that a federal regulator should displace state regulation completely. The report observes that the creation of a new federal regulatory agency to regulate all or part of the $7.3 trillion insurance sector “would be a significant undertaking.” For the federal government to amass the “personnel, resources and institutional expertise to execute such an endeavor” would require a substantial and unequivocal commitment from the political branches of government.

 

The report concludes that “the proper formulation of the debate” is not whether insurance regulation should be state or federal, “but rather whether there “are areas in which federal involvement in regulation under the state-based system are warranted.”

 

With this approach, and based on an extensive overview of the current state of the industry and the current approach to regulation, the report recommends a number of steps that could be taking to modernize and improve the regulatory system. The steps are divided into two categories: short term steps for the states to take; and steps toward direct federal involvement in regulation in certain areas.

 

Among other things, the report suggests that states should come up with new policies related to resolving failed insurers; monitor the impact of different rate-regulation and market conduct examination practices; develop plans to reduce losses in natural disasters. The report also suggests that the states should develop a uniform regime for the oversight of reinsurance captives. In addition, the report suggests that the states “should move forward cautiously with the implementation of principles-based reserving.”

 

As far as regulation at the federal level, the report recommends, among other things, the development and implementation of federal standards and oversight for mortgage insurers; in order to effect uniform treatment of reinsurers, develop provisions for reinsurance collateral requirements; and identify issues or gaps in the regulation of large national and internationally active insurers. The report also proposes that the FIO will study and report on the use of personal information in insurance pricing. The FIO also proposes to make recommendations pertaining to the availability of certain types of insurance for military personnel and Native Americans. The FIO will also monitor state progress on modernizing the collection of surplus lines taxes “and determine whether federal action may be warranted in the near term.”

 

According to news reports (here), the industry has generally been supportive of the FIO’s approach, although there clearly is wariness of the steps toward federal regulation that the report recommends. In addition, as noted in a December 14, 2013 memo about the report from the Nelson Levine de Luca & Hamilton law firm (here), one of the more “surprising” aspects of the report is its suggestion that “if states do not reform their laws and processes to meet the recommendations of the report, they could face federal action. “ The memo went on to note that the report suggests that “Congress should strongly consider direct federal involvement if states do not implement the FIO’s recommendations.”

 

The report includes several recommendations that may be of particular interest to readers of this blog. For example, among the report’s recommendations for the state is the proposal that the states should “develop corporate governance principles that impose character and fitness expectations on directors and officers appropriate to the size and complexity of the insurer.” The report explains this recommendation by noting:

 

Many U.S.-based insurers are expanding rapidly in geography, size and complexity, thereby imposing even greater de­mands on leadership. For example, internationally active insurers are increasingly engaged in sophis­ticated enterprise risk management practices to measure and understand risks posed to the enterprise from any angle or perspective. With standards appropriately scaled to the size and complexity of the firm, state regulators should adopt director and officer qualification standards that require individuals serving in those roles to have the expertise to assess strategies for growth and risks to the enterprise. For an insurer that exceeds size and complexity thresholds, state regulators should adopt an approach designed to ensure that individuals nominated to serve in the firm’s leadership ranks have sufficient capacity to understand and challenge an insurer’s enterprise risk management.

 

Another recommendation in the report that will be of interest to this blog’s readers is its suggestion that “the National Association of Registered Agents and Brokers Reform Act of 2013 should be adopted and its implementation monitored by the FIO.” This proposed legislation, which can be found here, is intended to create a uniform agent and broker licensing clearinghouse is supported by the Independent Insurance Agents and Brokers of America. (More information about this proposed legislation can be found here.)

 

The FIO report contains a wealth of information, including some very interesting data showing how important the insurance industry is in the United States. Among other things, the report states that 2012 U.S. insurance premiums totaled $1.1 trillion, representing 7 percent of the country’s GDP. Insurers directly employ 2.3 million people in the U.S, representing 1.7 percent of non-farm payrolls. As of year-end 2012, insurers reported $7.3 trillion in total assets, including $6.8 trillion in invested assets

 

Special thanks to a loyal reader for sending me a copy of the FIO report.

 

And in the End: The Beatles ended their Abbey Road album with the simple song called “The End.” The song features short but memorable lyrics – “And in the end, the love you take is equal to the love you make – and a sonic quality that make the track truly unforgettable. In a December 13, 2013 post on Something Else Reviews entitled “Deep Beatles: ‘The End,’ from Abbey Road (1969)” (here), music journalist Kit O’Toole takes a closer look at the song, which she says “serves as more than a mere final track to an album”; the song, she says, “effectively summarizes [the Beatles’] career trajectory as well as the end of the 1960s.”

 

The song features one of the only drum solos that Ringo Starr has ever recorded, as well as the dueling guitar solos featuring the other three Beatles. As O’Toole says, “after the angst expressed in ‘Carry That Weight’ and the ‘You Never Give Me Your Money’ reprise, ‘The End’ injects pure adrenaline and joy in the proceedings.”

 

Even if you think you know the song, read O’Toole’s account of how the song was recorded and how the pieces came together, and then listen to the song again on the embedded video link below. (The video starts with “Golden Slumbers” and ends with “The End”.)

 

O’Toole ends her article quoting Paul McCartney as saying “I’m very proud to be in the band that did that song and that thought those thoughts and encouraged other people to think them to help them get through little problems here and there.” It really is a great song.

 

After you have watched the video, you might want to visit the website for Abbey Road Studios (here) which has a webcam set up on the famous Abbey Road cross walk. If you check out the webcam shot during the daytime (London time) you won’t have to wait long to see random groups of people trying to recreate their version of the Abbey Road album cover.

 

//www.youtube.com/embed/hc5YuMsDTRE

Largely as a result of changes in the industry following the enactment of the Affordable Care Act, health care organizations have seen their D&O insurance rates increasing and the available terms and conditions tightening, according to a December 10, 2013 report from Marsh. Moreover, these changes are likely to continue in 2014, according to the report. A copy of the Marsh report, entitled “As Reform Takes Effect, Health Care D&O Rates Increase,” can be found here (registration required). Marsh’s December 11, 2013 press release about the report can be found here. Hat tip to Claire Wilkinson at the Insurance Information Institute blog (here) for the link to the Marsh report.

 

According to the report, since the 2010 passage of the ACA, health care organizations have been undergoing rapid consolidation, as they seek to form accountable care organizations (ACOs), which are joint ventures or affiliations “aimed at better coordinating services, reducing costs and improving the quality of care.” Because the formation of these ACOs expressly contemplates that the participating organizations will collaborate and share information, “some insurers have expressed concerns about the antitrust issues.”  

 

Among the insurers’ concerns is that, while the Federal Trade Commission and the Department of Justice have developed antitrust safe harbors for federally recognized ACOs, the extent of protection available under the safe harbors is “untested,” particularly in connection with private antitrust litigation.

 

As a result of these concerns, D&O insurers have been raising their rates for health care organizations, as well as restricting the coverage available under their policies for antitrust claims. According to the report, average primary D&O rate for smaller health care organizations (those with assets of $150 million or under and fewer that 1,000 employees) increased by 12.7% in the third quarter of 2013. 96% of organizations in this sector renewed their insurance with rate increases. Average primary D&O insurance rates for midsize and large health care organizations increased by 9.6%, with a median increase of 7.0%. 96% of all midsize and large health care organizations renewed with an increase during the third quarter.

 

Graphical information in the report shows that for all health care organizations, both primary D&O premiums and overall premiums have been increasing steadily since the fourth quarter of 2011.

 

Along with these rate increases, some insurers have been restricting the coverage available under their policies for antitrust claims. These restrictions include in some instances the introduction of sublimits and/or coinsurance for antitrust claims. According to the report, at least one insurer has taken “a particularly aggressive stance” by restricting availability of antitrust coverage to a maximum of $5 million across all financial and professional lines, and imposing a mandatory coinsurance of 20% to 30%.

 

The article notes that in addition to the antitrust concerns, the health care industry’s shift to the accountable care model entails a number of other liability risks. For example, the establishment of provider networks raises the possibility of “contractual liabilities and lawsuits from customers, competitors, and regulators over such issues as errors in providing nonmedical services.” An ACO also could assume “higher risks related to the pricing of services, medical expenses in excess of agreed capitation levels, or contract mismanagement for its members.”

 

As a result of these changes and heightened risks, D&O insurers are seeking a great deal more renewal underwriting information, particularly with respect to ACO formation and strategy. Among other things, they are seeking additional information about contractual terms, data security, and indemnification and insurance relationships between counterparties.

 

In addition to the D&O issues, another concern ACOs will face are the “managed care errors and omissions (E&O) inherent in population management strategies. These issues may arise as efforts to control costs lead to quality of care concerns. These kinds of issues will require many organizations that in the past may not have purchased managed care E&O insurance to add the coverage to their professional liability insurance program.

 

The article concludes with as the industry continues to transition to accountable care, risks and exposures will continue to emerge. As a result, health care organizations “should be prepared to face additional rate increases as they renew their D&O insurance program in 2014” and to address underwriters’ questions about their strategies for the formation of ACOs.

 

The article notes that D&O insurers will be closely monitoring developments in the consolidated Blue Cross Blue Shield antitrust litigation pending before Judge David Proctor bin the Northern District of Alabama (about which refer here). The report notes that “as a protracted legal struggle is expected, the case will likely have no immediate impact on pricing – but it has added to the antitrust concerns for underwriters.”

 

For those of you looking ahead to 2014, one date you will want to note on your calendar is January 29, 2014. That is the effective date of the Brazilian Clean Companies Act, a new anti-bribery statute that signals Brazil’s intention to crack down on corruption. The Act represents an operational and compliance challenge for Brazilian companies and for foreign companies doing business in Brazil. It also represents a potentially significant development in the risk environment for D&O insurers doing business in Brazil.

 

Following highly publicized public protests last year, the Brazilian Senate approve the Clean Companies Act on July 4, 2013. Brazilian President Dilma Rouseff signed the Act into law on August 1, 2013. The Act subjects Brazilian companies and foreign entities with a Brazilian registered office, branch or affiliate i to civil and administrative sanctions for bribery of domestic or foreign public officials. Violations of the Act can be sanctioned by civil fines of as much as 20 percent of a company’s gross billings, or if the prior year’s revenue cannot be calculated, of up to R$ 60 million (about US$26 million).

 

A December 6, 2013 memo from the Morrison & Foerster firm describing the Act can be found here. An August 9, 2013 memo from the Covington & Burling law firm with a detailed description of the Act can be found here.

 

The Brazilian Act has certain features in common with the U.S.’s Foreign Corrupt Practices Act and the U.K.’s Bribery Act. Like those two statutes, the Act has an international reach, applying to acts committed both in Brazil and abroad. Because of this international applicability, companies “can expect Brazil to cooperate more with US and UK regulatory authorities than it does today,” according to a memo about the Act by São Paulo attorney Gabriela Roitburd.

 

At the same time, there are important differences between the Act and the FCPA and the Bribery Act. Unlike the Bribery Act, the Clean Companies Act is a “strict liability” statute. In order for sanctions to be imposed on a company, prosecutors are not required to show that company representatives acted with criminal or corrupt intent. In addition, according to the Morrison & Foerster memo, “a company cannot avoid liability under [the Clean Companies Act] by proving that it had ‘adequate procedures’ in place.” However, companies can mitigate potential fines based on cooperation with Brazilian authorities and by having effective internal compliance procedures. Companies will also receive a cooperation credit for voluntary disclosure.

 

Unlike under the FCPA and the Bribery Act, the Clean Companies Act does not impose criminal liability on legal entities for acts of bribery. Violations of the Act can result only in the imposition of civil and administrative sanctions (which, though not involving criminal sanctions, nonetheless potentially can be quite harsh). The Act does not alter existing laws under the Brazilian Criminal Code imposing criminal liability on individuals for acts of bribery. In addition, unlike under the FCPA, the Clean Companies Act does not contain an exception for so-called “facilitation payments.”

 

Discussion

The extent of the changes that may follow the Act’s effective date is uncertain. In the words of the São Paulo attorney Gabriela Roitburd, “how aggressively Brazilian authorities will enforce the Act and in which areas they will focus their efforts remain to be seen.” Skeptics might well question the extent to which the Act alone will change anything.

 

Just the same, there are reasons to suspect that the Act could represent a very significant development. The Act’s enactment not only took place in the midst of a highly charged political environment, but it also follows a period in which Brazilian authorities have already started cracking down on corrupt activities; based on examples cited in its memo, the Morrison & Foerster law firm notes, with respect to existing enforcement activities, that “authorities are not shying away from pursuing big, powerful targets.” The memo goes on to observe that “the risks involved in sectors that require significant interaction with public officials have multiplied.”

 

There is a larger context within which the Act’s enactment takes on a more global significance. As the Morrison & Foerster memo notes, the Act “represents a firm statement of intent from the Brazilian government to align itself with global trends and tackle corruption head on.” It is this sense in which the Brazilian’s adoption of the Act represents a part of a “global trend” that the Act takes on a greater significance.

 

During numerous conversations with industry colleagues outside the U.S. this fall, I have heard over and over again that regulators outside the U.S. are becoming increasingly active and that there has been an upsurge in claims notifications involving regulatory and enforcement actions outside the U.S. The Brazilian adoption of the Act seems to set the stage for an augmentation of this current trend.

 

Ranked by GDP, Brazil has the world’s sixth largest economy. It is the largest economy in South America. Its enactment of this statute potentially will have an impact on other counties and economies, perhaps even outside of Latin America. To the extent, Brazilian’s adoption of the Act encourages other countries to try to crack down on bribery and corruption, it could accelerate the already pronounced trend toward greater regulatory activity around the world.

 

At a minimum, the Act’s adoption raises the possibility of greater regulatory and enforcement activity in Brazil, involving both Brazilian companies and foreign companies doing business in Brazil. The possibility of this increased regulatory and enforcement activity in turn raises the possibility of increased D&O claims activity, as companies targeted by prosecutors seek to have their defense costs and other expenses reimbursed by their insurers. The possibility (noted above) for collaboration between Brazil and both the U.S. and the U.K. on anticorruption enforcement further reinforces the possibilities for greater D&O claims activity.

 

Brazil’s adoption of the Act is significant in and of itself, for what it means for the country’s efforts to try to crack down corruption. It potentially is also emblematic of a more global move toward greater regulatory enforcement. These developments in turn have important significance for companies doing business in Brazil and for the larger global economy. All of these developments have important implications for the global D&O insurance industry.

 

The extent to which coverage would be available for any particular company under its D&O insurance for matters of the kind described above will of course depend on the nature of the specific allegations raised and the particular wording of the company’s policy. The extent of coverage available for investigative costs is a recurring issue, and the extent of coverage for investigations and enforcement actions involving the entity is particularly dependent on policy wording. In connection with enforcement actions, fines and penalties typically would not be covered, so enforcement action-related coverage questions would most likely involved defense cost protection. To the extent enforcement actions under the Brazilian Clean Companies Act lead to follow on civil litigation (as has happened in the U.S.  following FCPA enforcement actions), the related civil actions would involved further costs for which the insured persons would seek D&O insurance coverage.

 

It is not news that the choices CEOs make can significantly impact the companies they lead. But at least according to a recent academic study, CEOs’ ability to affect their companies is not limited just to the decisions they make in their corporate posts, but also includes decisions they make in their personal lives. According to the study’s authors, CEOs’ decisions and actions in the personal lives can affect their companies’ performance. As shown below, CEOs’ personal decisions can also lead to shareholder claims against their companies.

 

In a December 3, 2013 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation entitled “The Impact of CEO Divorce on Shareholders” (here), David Larker and Allan McCall of the Stanford University Accounting Department and Brian Tayan of the Stanford Graduate Business School examine the impact that CEO divorce can have on a corporation. The authors summarized their findings by saying that “recent events suggest that shareholders pay attention to matters involving the personal lives of CEOs and take this information into account when making investment decisions.”

 

(The authors’ recent blog post is abbreviated version of their more detailed October 1, 2013 paper entitled Separation Anxiety: The Effect of CEO Divorce on Shareholders, which can be found here).

 

The authors note that there are at least three potential ways that CEO divorce might impact a corporation and its shareholders. The first is that the property settlement associated with their divorce — in which the CEO might be forced to sell personal shares in their company – could affect a CEO’s control or influence. The share sale could “reduce the influence that he or she has over the organization and impact decisions regarding corporate strategy.”

 

Second, CEO divorce can affect the productivity, concentration and energy levels of the CEO. The authors cite prior research the concluded that employee divorce can affect firm productivity. In the extreme, the authors note, the distraction of divorce can lead to premature retirement. (The authors’ paper cites the example of A.G. Lafley, who stepped down early from his post as Proctor and Gamble’s CEO following his divorce filing).

 

Third, CEO divorce can influence a CEOs attitude toward risk. A sudden change in a CEO’s wealth can affect the executive’s risk appetite and therefore affect decision making. The authors’ research suggests that both the board of directors and shareholders need to consider the consequences to the corporation when a CEO and spouse separate. In some cases, the board might want to consider a change in CEO compensation to “restore” the CEO’s incentives so they are consistent with the original expectations and the company’s risk tolerance.

 

It is interesting to me that in their summarization of their findings, the authors did not limit their conclusions simply to matters pertaining to CEO divorce but rather stated more generally that shareholders should pay attention to matters “involving the personal lives of CEOs.” Indeed, recent events suggest that shareholders should be concerned not just CEO divorce but CEOs’ personal relationships as well.

 

A recent example where a CEO’s relationship caused problems at the executive’s company and even lead to the filing of a securities class action lawsuit arose at the IT outsourcing company iGate Corporation. On May 20, 2013, the company disclosed that its Board had terminated its CEO Phaneesh Murthy after an internal investigation revealed the CEO had a relationship with a subordinate employee in violation of company policy and the CEO’s employment contract. The company’s shares declined nearly 10 percent on this news. Then on May 22, 2013, the company further disclosed that the CEO’s termination was “for cause” and that the former CEO was not entitled to severance under his contract. The company’s shares slid further on this news.

 

As discussed here, on June 14, 2013, plaintiff shareholders filed a securities class action in the Northern District of California against iGate and its former CEO. The plaintiffs alleged that the defendants had failed to disclose that (i) the Company’s Chief Executive Officer and President was involved in an improper relationship with a subordinate employee in violation of iGATE’s explicit policies to the contrary; and (ii) the CEO’s improper conduct created a risk that he would be terminated from the Company, jeopardizing the Company’s future success.

 

Although the circumstances at iGate may seem to have their own distinct features, the departure of a CEO amid allegations of an improper relationship is not unprecedented, nor is the arrival of a shareholder lawsuit following the CEO’s departure.

 

For example, former H-P CEO Mark Hurd denied that he had a personal relationship with an outside publicist for the company, but (as discussed here) the board’s investigation into the publicist’s sexual harassment allegations ultimately led to Hurd’s resignation based on allegations that Hurd submitted expense report that had been falsified to obscure his relationship with the publicist. Following these events, an H-P shareholder filed a shareholders derivative lawsuit against the company’s board in the Northern District of California, alleging mismanagement and breach of fiduciary duties. (The case ultimately was dismissed, refer here). 

 

Of course, neither of these cases related to CEO divorce, which is the topic of the academics’ paper. But they do show how the CEO’s personal relationships generally can affect their company and can even lead to shareholder claims. The authors’ study shows how a CEO’s decisions in their personal life can affect corporate performance and investment risk. The difficulty for investors (and indeed for D&O insurance underwriters) who might want to understand this risk is that their interest in this kind of information runs directly into the CEO’s right of personal privacy.

 

The study’s authors have no difficulty identifying investors’ interest in knowing information about CEO’s personal lives. The authors understandably are more hesitant when it comes to describing company’s corresponding disclosure obligations in that regard. The authors note that companies do not always disclose when a CEO gets divorced, and that reports often only come out later when, for example, the CEO sells shares to satisfy the terms of the divorce settlement. In the end, the authors avoid any prescriptions about corporate disclosure obligations but simply pose the questions, “Is divorce a private matter, or should companies disclose this information to shareholders? If so, how detailed should this disclosure be?”

 

If the disclosure questions are awkward when it comes to CEO divorce, the questions are even trickier when it comes to issues such as CEOs’ personal relationships. Clearly, where a CEO has had a relationship (or engaged in any other behavior) that violates company policies, that is a matter that must be disclosed to investors. A CEO’s personal relationship arguably might trigger a disclosure obligation when a personal relationship has a clear and direct impact on company performance. However, beyond that, I think just about everyone would recognize that other details of CEO’s private life generally are off limits.

 

Just the same, the interests of investors (and of D&O underwriters) are affected by the choices that a company’s CEO makes, and that is true not just of the CEO’s corporate choices but even of their personal choices. We have all grown used to the notion that a company’s compliance environment starts with the “tone at the top.” Given the CEO’s rightful expectation to privacy, there may be no realistic way to try to underwrite the likelihood that a CEO’s personal life will lead to problems affecting corporate performance (or lead to shareholder lawsuits). However, a company’s culture, and the CEO’s role in that culture, can be underwritten.

 

This discussion does remind me of an earlier post I wrote years ago concerning another academic study in which the authors found an inverse correlation between the value of a CEO’s house and the future performance of their company. As discussed here, the study’s authors found a "significantly negative stock performance following the acquisition of very large homes by company CEOs," a negative trend that persists for several years after the home purchase.

 

All of which says to me that while in general the choices a CEO makes in their personal life often are nobody else’s business, the fact is that at least some of a CEO’s personal choices might nevertheless tell you something about the company they are running. As a minimum, as the authors of the CEO divorce study conclude, the CEO choices in their personal lives can affect corporate performance and therefore represent a form of corporate risk.

 

It is nothing new for private securities litigation to follow in the wake of a company’s announcement that it is the target of an SEC investigation. Similarly, civil litigation following after a company’s announcement of the existence of an FCPA investigation is a phenomenon I have frequently noted on this blog. A number of these more traditional kinds of post-investigation civil lawsuits have been filed in 2013.

 

But in addition there have also been as host of lawsuit filings this year following company announcements of a wide variety of other kinds of regulatory investigations.  These latest lawsuit filings following a broader array of regulatory investigations represent something of a new phenomenon and also represent a significant part of the 2013 securities class action lawsuit filings. They may also point toward a likely future source of securities suit filings as we head toward the New Year.

 

During 2013, there have been a number of the more traditional type of securities suit filings following after a company’s announcement of an SEC investigation. For example, Corinthian Colleges, the for-profit education company, was hit with a securities class action lawsuit in June 2013 after the company announced an SEC investigation as well as the SEC’s request for information relating to student recruitment, attendance, completion rate, placement and loan practices. In July 2013, plaintiffs filed a securities suit against Star Scientific following the company’s announcement that it had received subpoenas from the SEC and from the U.S. Attorney’s office about related party transactions at the company. In March 2013, ITT Educational Services, another for-profit educational company, received a securities suit following the company’s announcement of an SEC investigation of student loan arrangements.

 

There have also been new securities suit filings this year following companies’ announcements of FCPA investigations. For example, in August 2013, plaintiffs filed a securities class action lawsuit against Juniper Networks following the company’s announcement of an ongoing SEC and DoJ investigation into possible FCPA violations. In April 2013, plaintiffs filed a securities lawsuit against WalMart de Mexico following publicity surrounding allegations of bribery and other misconduct in connection with company operations in Mexico.

 

The arrival of securities lawsuit following the announcement of these kinds of investigations has long been a feature of securities lawsuit filings. In addition to these more traditional types of filings following SEC and FCPA investigations, there have been a number of other filings this year that involve very different kinds of post-investigation lawsuits.

 

The recent securities suit filed in the Eastern District of Virginia against Lumber Liquidators and certain of its directors and officers represents a good example of these more diverse kinds of post-investigation lawsuits. On November 26, 2013, plaintiff shareholders filed their complaint (a copy of which can be found here) against the hardwood flooring retailer following the company’s disclosure that the U.S. Department of Agriculture, the U.S. Fish and Wildlife Service, the Department of Homeland Security and the Department of Justice had executed search warrants on the company’s corporate offices in connection with the company’s possible violation of the Lacey Act for the alleged importation of illegally logged wood products from forests in eastern Russia and China.

 

There have been a number of other recent securities suits filed following companies’ announcement of a broad range of governmental investigations. For example, on November 29, 2013, plaintiffs filed a securities suit against DFC Global following an industry-wide investigation of payday lending by the U.K.’s Office of Trading, which was accompanied by severe losses in the company’s U.K. lending portfolio. 

 

And on September 25, 2013, Valley Forge Composite Technologies received a securities suit relating to the company’s February 2013 announcement that it was being investigated by the U.S. Attorney’s office for the company’s alleged export to Hong Kong of military semiconductors in alleged violation of the International Traffic in Arms Regulation (ITAR).

 

Other companies have also received securities suits during 2013 following company announcement of governmental or regulatory investigations. In September 2013, BioScrip was hit with a securities class action lawsuit following its announcement of its receipt of a civil investigative demand from the U.S. Attorney’s Office and the New York A.G.’s Medicare Fraud Unit relating to its distribution of certain pharmaceuticals.

 

In August 2013, plaintiff shareholders filed a securities suit against NuVasive following the company’s July 2013 announcement that it had received a federal administrative subpoena from the Office of the Inspector General of the U.S. Department of Health and Human Services in connection with possible false or misleading claims submitted to Medicare and Medicaid.

 

And in September 2013, plaintiffs filed an action in the Southern District of New York against PetroChina Company Limited, following the company’s announcement in late August of an investigation of the company’s corporate parent by a Chinese governmental ministry and the investigation of several company officials by the State-Owned Asset Supervision and Administration Commission for “severe breaches of discipline,” which is widely interpreted to mean corruption and bribery.

 

In April 2013, investors filed a securities class action lawsuit against Autoliv relating to the company’s announcements in early 2011 that the DoJ and the European Commission were investigating units of the company for anti-competitive practices and antitrust violations. The investigation resulted in the company’s June 2012 agreement to plead guilty to price-fixing for certain auto parts.

 

Collectively, these post-investigation cases (including the more traditional types of cases involving SEC and FCPA investigations) represent nearly ten percent of all of the securities class action lawsuits so far this year, so they represent an important phenomenon in and of themselves. But these fillings may be even more significant to the extent they represent a securities suit filing trend in which increased numbers of securities class action lawsuit filings arise in the wake of governmental investigative activity.

 

There are several things about these cases that make them particularly interesting to me. The first is just the broad array of governmental investigations that preceded the lawsuit filings. It is no secret that U.S. governmental regulators have become increasingly more active and arguably even more aggressive. As a broader range of regulators actively enforce a broader range of laws and regulations, companies face the possibility of a growing number of types of investigations accompanied by a greater risk of follow-on civil litigation.

 

Another thing that interests me about these examples is the international element of several of the claims. At least three of these lawsuits involve or related to governmental investigations by regulators outside the U.S., and several of the suits involve the investigation by U.S. regulators of possible misconduct outside the United States.

 

I put these post-investigation lawsuits with an international element in the context of several meetings I had this fall with industry colleagues from outside the United States, who uniformly commented to me that regulatory activity outside the U.S. is surging. D&O underwriters from outside the U.S. commented told me that they are receiving unprecedented levels of claims notifications involving non-U.S. regulatory actions.

 

These actions involving non-U.S. regulators are arising at the same time that U.S. regulators are also increasingly active. Indeed, one feature of several of the current high-profile investigations in the financial services industry (for example, Libor, currency exchange, and trade sanctions) is the level of cross-boarder collaboration and cooperation between various governments’ regulators.

 

Assuming that the Supreme Court does not completely alter the securities class action litigation environment in the Halliburton case, it seems likely to me that this phenomenon of post-investigation filings that loomed so significantly in 2013 will be even more important in 2014. The likelihood is that there will be more cases involving an even broader array of regulatory and investigative activity with an added likelihood that non-U.S. regulatory activity will be involved in a growing number of these kinds of cases.

 

Last week I happened to be at a meeting in which one of the more prominent securities defense attorneys asked one of the leading securities plaintiffs’ attorneys what kinds of companies or things the plaintiffs’ lawyers were going to be going after next. The plaintiffs’ attorney demurred to the question, basically saying when I find out myself I will let you know. The plaintiffs’ lawyer was unwilling to make any predictions but I will speculate here that as we head into 2014 this phenomenon of follow-on post-investigation civil litigation is going to be increasingly important (assuming of course that Halliburton does not change the entire litigation landscape).

 

 

With the arrival of the new Chair of the SEC, Mary Jo White, the agency has undertaken a variety of new enforcement initiatives. Among the most interesting is the agency use of data anallytics to try to uncover public company accouunting abuses. The following guest post from Christopher L. Garcia, Paul Ferrillo  of the Weil, Gotshal & Manges law firm and Matthew Jacques of AlixPartners takes a look at this new information gathering initiative from the SEC.

 

I would like to thank Christopher, Paul and Matthew for their willingness to publish thieir post on this site. I welcome guest post submissions on topics of interest to readers of this blog. Anyone interested in publishing a guest post on this blog is encouraged to contact me directly. Here is Christopher, Paul and Matthew’s guest post: 

 

            Since her confirmation as Chair of the U.S. Securities and Exchange Commission (“the SEC”), Mary Jo White has made clear that her administration will focus on identifying and investigating accounting abuses at publicly traded companies, a focus that has been echoed by Chairperson White’s co-Directors of Enforcement, George Canellos and Andrew Ceresney.[1] This renewed focus is perhaps unsurprising: whistleblower complaints relating to corporate disclosures far outstrip complaints in other popular enforcement areas, such as insider trading and FCPA, and yet the last several years have witnessed a steady decline in accounting fraud investigations and enforcement actions.[2]

 

            Accordingly, on July 2, 2013, the SEC announced two initiatives in the Division of Enforcement designed to support this renewed focus on uncovering and pursuing accounting abuses in public companies 

·        The Financial Reporting and Audit Task Force (“the Task Force”), “an expert group of attorneys and accountants” dedicated to detecting fraudulent or improper financial reporting,[3] and 

·        The Center for Risk and Quantitative Analytics, which is dedicated to “employing quantitative data and analysis to high-risk behaviors and transactions” in an effort to detect misconduct.[4] 

While the Task Force portends a new era in accounting fraud enforcement by creating a veritable “SWAT Team” tasked with reviewing financial restatements and class action filings, monitoring high risk companies, and conducting street sweeps,[5] the announcement that the SEC is employing “data analytics” to in order to detect indicia of accounting fraud is potentially the more significant development. 

 

First dubbed the “Accounting Quality Model” (“AQM”) by the SEC’s Chief Economist Craig M. Lewis, and later coined “Robocop” by the media, the use of data analytics represents advances in enforcement techniques made possible by a prior SEC compliance initiative called XBRL (eXtensible Business Report Language), which mandated a standardized format for public companies to report their results. This article attempts to bring together all of the concepts related to the AQM in an understandable way for directors and officers of public companies. In short, the AQM may mean that companies may receive more frequent inquiries from the SEC based upon the substantive quality of their financial statements alone. Though just one tool in the SEC’s enforcement tool box, the SEC’s AQM initiative certainly represents how 21st Century information gathering may give the SEC a leg up in detecting accounting fraud.

 

            What is XBRL?

            First, a brief word about XBRL, which has made the SEC’s AQM initiative possible. In mid-2009, the SEC mandated the use of XBRL (XBRL was voluntary beginning in 2006) for most companies reporting financial information to the SEC. According to the SEC’s XBRL web site, “Data becomes interactive when it is labeled using a computer markup language that can be processed by software for sophisticated viewing and analysis.  These computer markup languages use standard sets of definitions, or taxonomies, to enable the automatic extraction and exchange of data.  Interactive data taxonomies can be applied — much like bar codes are applied to merchandise — to allow computers to recognize that data and feed it into analytical tools.  XBRL (eXtensible Business Reporting Language) is one such language that has been developed specifically for business and financial reporting.”[6] 

 

          Put differently, financial information is essentially “coded” or “tagged” in a standardized fashion to allow the SEC, to understand it more readily. For example, an accrual, like an executive compensation accrual, is identified and coded as an accrual, along with other types of accruals. In short, XBRL is like as a hyper-advanced Twitter hashtag for the financially savvy that allows financial information reported to the SEC to be categorized and sorted quickly and effectively for further analysis.

 

            Standardized Financial Reporting Facilitates the AQM Initiative

            So how does mandatory financial reporting using XBRL make AQM possible? Through the standardization of reporting, tagging and coding of terms through XBRL, the SEC is able to quantify or “score” the degree to which a company may be engaged in any number of problematic accounting practices. For example, the model analyzes SEC filings to estimate the number and size of discretionary accruals within a company’s financial statements.  Discretionary accruals are accounting estimates that are inherently subjective and susceptible to abuse by companies attempting to manage earnings.  Once anomalous accrual activity is detected, the model then considers other factors that are “warning signs” or “red flags” that a company may be managing its earnings.  The SEC has publicly provided limited examples of these factors, which include: the use of “off-balance sheet” financing, changes in auditors, choices of accounting policies and loss of market share to competitors.  Ultimately the AQM quantifies how a company’s discretionary accruals and red flags compare to those of other companies within that company’s industry peer group.  Outliers (those with financial statements that “stick out”) in the peer group possess qualities that indicate possible earnings management. As SEC’s Dr. Lewis summed up in December 2012: “[AQM] is being designed to provide a set of quantitative analytics that could be used across the SEC to assess the degree to which registrants’ financial statements appear anomalous.”[7]

 

            It is then up to the SEC to take “the next step” which could vary from company to company. In some cases, a “high score” might warrant a letter from the SEC’s Department of Corporate Finance (“Corp Fin”) asking for explanations regarding potential problem areas. More dramatically, a “high score,” alone or in conjunction with other information, including information provided by a whistleblower, may result in an informal inquiry by the staff of the Enforcement Division, with attendant requests for documents and interviews, or, worse, a formal investigation. Thus, problems for a Company could escalate dramatically with cascading effects, including difficult discussions with the incumbent auditor, and, worst case scenario, a full blown audit committee investigation. 

 

 

            What AQM Could Mean for Public Company Directors and Officers

 

            A few years ago, AQM may have been viewed no differently than any of the laundry list of items public company officers and directors need to worry about. But arguably in the last 12 months the world has changed: The Division of Enforcement has announced a renewed focus on rooting out accounting fraud, the Task Force the SEC has formed is deploying new strategies to detect and investigate accounting irregularities, and whistleblowers are incentivized to bring allegations of accounting improprieties to the attention of regulators. 

 

 

            So is there a silver bullet to the AQM? How should companies respond to the renewed focus of the SEC on accounting fraud and earnings management issues? There are no right answers to these questions, only perhaps some prudent advice:

 

 

·        Get your XBRL reporting right the first time. There are many reports that public companies are continuing to make numerous XBRL coding mistakes. It is likely the AQM will not be able to identify an innocent coding mistake. Such mistakes, however, may land a company on the top of SEC’s “Needs Further Review” list. Though the audit firms have apparently steered away from giving advice on XBLR, there are numerous experts and boutique firms that can help provide guidance to registrants. Making errors in this area, even if innocent, is simply not an option in this new era.

 

 

·        Consider all of your financial disclosures. The AQM focusses on identifying outliers. One easy way to become an outlier is to be opaque with disclosures where other companies are transparent. Take a fresh look at your financial disclosures for transparency and comparability across your industry.

 

 

·        Listen to the SEC’s guidance. As we have noted above there are a number of new SEC programs and initiatives focused on detecting financial reporting irregularities. Stay current on SEC activity to avoid surprises.

 

 

·        It is not just the SEC. XBRL is available to the public. As a greater library of XBRL financial statement data is created, analysts, investors, other government agencies, media outlets and others will build their own versions of the AQM. Be prepared for greater scrutiny and inquiries from these groups.

 

 

·        Be conscious of red flags. For example, a change in auditor is thought to be a significant red flag that might warrant further attention from the SEC.

 

            Finally as we explained above, times have changed and the SEC, upon implementation of the AQM, is ever more likely to knock on your door. Be prepared for interactions with the SEC, in particular the Enforcement Division, that are not in keeping with historical experience. As we advised with the new whistleblower program, be prepared to respond quickly and substantively to any potential SEC inquiry that might have been generated solely by the AQM or one of the many other new tools being employed by the staff. Elevate those inquires, as appropriate, to the Audit Committee and handle them with the requisite diligence. Further, have your crisis management plan ready, just in case there is a genuine and serious accounting issue that needs attention. Given the potential damage an accounting problem can have on a company’s reputation, its investors, and its stock price, have internal and external crisis advisors ready to act if necessary to investigate quickly any potential impropriety. Also have your disclosure lawyers and crisis management advisor ready to communicate with the marketplace in whatever ways are appropriate and at the appropriate time. Indeed, in light of the SEC’s renewed focus on accounting improprieties, today, more than ever, a crisis management plan to deal with a potential accounting failures is absolutely essential. 

 

[1] See e.g. Speech of Mary Jo White to the Council of Institutional Investors Fall Conference, dated September 26, 2013

 

[2] See Henning, The S.E.C. is ‘Bringin’ Sexy Back’ to Accounting Investigations, NY Times.com, at  http://dealbook.nytimes.com/2013/06/03/the-s-e-c-is-bringin-sexy-back-to-accounting-investigations/?_r=0

 

[3] See Remarks of Chair Mary Jo White at the Securities Enforcement Forum, October 9, 2013, at http://www.sec.gov/News/Speech/Detail/Speech/1370539872100

 

[4] See SEC Release 2013-121, “SEC Announces Enforcement Initiatives to Combat Financial Reporting and Microcap Fraud and Enhance Risk Analysis,” July 2, 2013.

 

[5] See Speech of Co-Director of Enforcement, Andrew Ceresney, dated September 19, 2013, at http://www.sec.gov/News/Speech/Detail/Speech/1370539845772

 

[7] See speech of Craig Lewis, entitled “Risk Modeling at the SEC: The Accounting Quality Model,” dated December 13, 2012, at https://www.sec.gov/News/Speech/Detail/Speech/1365171491988

 

According to the FDIC’s latest Quarterly Banking Profile (here), as of September 30, 2013, there were 6,891 federally insured banking institutions, down from 6,940 at the end of the second quarter and down from 7,141 as of September 30, 2012. There were 8,680 banking institutions as recently as December 31, 2006, meaning that there are 1,789 (or about 20%) fewer banks in the U.S. than there were a little less than seven years ago.

 

The latest quarterly figures represents the lowest level for the number of banks since the Great Depression, according to a front page December 3, 2013 Wall Street Journal article (here). The Journal article details how the industry has shrunk to its current level from its high water mark of over 18,000 banking institutions as recently as 1984.

 

Two banking crises since 1984 account for a significant part of the decline. Between 1985 and 1995, as a result of the S&L crisis, 1,043 institutions failed (as discussed here).  More recently,  the global financial crisis has taken its toll on the U.S. banking industry – since January 1, 2007, 534 banking institutions have failed, or more than six percent of all of the banks in business at the beginning of the period.  But though there have been a huge number of bank failures in recent years, the closures alone do not account for the continuing decline in the number of U.S. banks.

 

According to the Journal article, the reasons for the continuing decline in the number of banks include “a sluggish economy, stubbornly low interest rates and heightened regulation.” These problems are particularly acute for smaller banks, which often depend on lower margin loans. Declining interest margins hurt smaller community banks more than larger banks, because the smaller banks’ business models – what the Journal describes as “traditional lending and deposit gathering”—rely on interest income. These pressures have caused a number of smaller institutions to merge or consolidate.

 

At the same time, no new banks are forming to replace the banks that are disappearing. According to the latest Quarterly Banking Profile, there was only one new banking institution formed in the first three quarters of 2013 (the first federally approved banking start up in nearly three years), while 159 institutions were merged out of existence and 22 institutions failed during that same period.

 

As one banking executive quoted in the Journal article asks with respect to the pressures facing smaller banks, “Can you be too small to succeed?” The problems smaller banks face was detailed in an interesting November 30, 2013 article in the Economist (here), about the travails of Marquette Savings Bank of Erie, Pa. The bank, which has weathered the financial crisis in relatively good shape is facing pressure from regulators to sell the mortgages it originates as well as to change its appraisal practices. Although the regulators pressures derive from justifiable concerns, they also threaten to undermine the keys of the bank’s success.

 

There is every reason to believe that consolidation in the banking industry will continue. Among other things, the FDIC and the banking industry are both still dealing with the fact that – even years out from the worst of the financial crisis – a large percentage of the remaining banks are “problem institutions.”  On the positive side, the number of banks on the FDIC’s "Problem List" declined from 553 to 515 during the third quarter. (The agency calls those banks that it rates as a “4” or “5” on a 1-to-5 scale of risk and supervisory concern “problem institutions.”)On the other hand,problem institutions still represent about 7.47 percent of all reporting institutions, down from about 7.96 during the second quarter.

 

Even though the number and percentage of problem institutions is down from the low point during the worst of the financial crisis — there were 888 problem institutions at the end of the first quarter of 2011 – the number of problem institutions remains stubbornly high. Many of the remaining problem institutions are unlikely to leave the list based on their own financial improvement. Many are likely to drop of the list either by merging or by failing.

 

Of course, the vast majority of banks are not problem institutions. But whether healthy or not, most remaining banks are small. Of the 6,891 banks at the end of the third quarter, 6,223 (or slightly more than 90 percent) have assets of under $1 billion. Many of these institutions are thriving and will continue to thrive. But others will face economic and regulatory pressures that may lead them to merge and combine.

 

It is hard to say where all of this will lead. It does seem likely that the number of bank failures will continue to slow, and it is always possible that an improving economy will enable more banks to remain strong and independent. However, at least right now, the likeliest outcome would seem to be that the number of banks will continue to shrink.

 

There are a number of practical consequences from the shrinking number of banks. Among other things, the Journal article raises the question whether as smaller community banks go out of existence, will it become harder from smaller businesses outside urban areas to obtain the credit they need.

 

All of these developments have consequences for the D&O insurance industry as well, or at least the portion of the industry focused on providing insurance for banking institutions. The carriers in this sector are already reeling from losses arising from the wave of bank failures and related litigation. These losses are continuing to accumulate at the same time that the overall universe of potential buyers continues to shrink. The carriers are struggling to spread an adverse loss experience across a shrinking portfolio. The accumulating losses from prior underwriting years and the shrinking customer pool means that it is harder for these carriers to show an underwriting profit on a current calendar year basis. The heightened loss experience and shrinking customer base suggests that these carriers will be facing pressure on their premium levels for some time to come.

 

At the same time that the carriers are dealing with these forces, they are also dealing with another dynamic that will even further complicate things for them. A shrinking customer base means less business for everyone. Carriers worried about maintaining their portfolios will have to figure out how to respond as competitors go after their business. As much pressure as there may be to maintain premium levels, competition may force carriers to adjust their premiums to avoid losing business.  

 

It is still a tough time for banks. It is also a tough time for their D&O Insurers as well.

 

The Desolation of Smog: SIxty years ago, London was more polluted than Beijing is today. (Here).