Failed bank lawsuit this year area on pace to total the largest annual number of lawsuits yet during the current bank failure wave, according to an April 2013 report from Cornerstone Research entitled “Characteristics of FDIC Lawsuits Against Directors and Officers” (here). The report identifies several factors – including the FDIC’s recently published settlement data – that the authors believe that “together suggest that substantially more FDIC cases may be filed in upcoming months.”

 

The report notes that as of April 22, 2013, the FDIC has filed twelve lawsuits against former directors and officers of failed banks during 2013. (I am aware of at least two additional suits that have been filed since that time; refer here, second item for the most recent). That brings the total number of lawsuits that the FDIC has filed since 2012, as of that date, to 56. The authors project that at the current filing rate, 2013 filings could total as many as 39.

 

Given the three year lag that generally follows after a bank fails before the FDIC files suit, and given that the peak number bank failures took place between the third quarter of 2009 and the third quarter of 2010, “this year will likely be a peak period for new filings.”

 

Though lawsuits have continued to emerge this year, bank failures themselves have slowed considerably during 2013, with only eight for the year so far compared to 51 during all of 2012. Since the beginning of 2007, 476 banks have failed. The authors project that as many as 26 banks total could fail this year.

 

To date, 12 percent of bank failures have resulted in D&O lawsuits. The lawsuits generally have targeted larger institutions and those whose failures produced larger costs. To date the FDIC has filed lawsuits against 21 percent of the banks that failed in 2009 and against 10 percent of banks that failed in 2010.

 

As I noted in an earlier post, the FDIC recently began publishing on its website information regarding settlements the agency has reached in connection with bank failure claims and lawsuits. The authors of this report have done the hard work of going through all of the settlements that agency has posted on its website.

 

Among other things, the authors report that the FDIC has obtained aggregate settlements of $601 million — $115 million attributable to filed D&O lawsuits; $216 million attributable to 33 claims involving directors and officers of failed banks that did not result in a complaint; and $270 million attributable to claims against professional firms and non-D&O individuals. As many as 17 of the settlement agreements required out-of-pocket payment by individual directors and officers. The out-of-pocket payments totaled $8 million.

 

The report is interesting and worth reading in full. The authors merit our gratitude for working through and summarizing the settlement information on the FDIC’s website. The report contains a number of interesting insights, such as, for example, the authors’ observation about the number of settlements in which directors and officers were required to make out-of-pocket contributions to the settlements.

 

Citing the “obvious magnitude” of the Libor-related antitrust litigation, Southern District of New York Judge Naomi Reice Buchwald has given the plaintiffs leave to attempt to amend their complaints to address the shortcomings that previously led her to grant the defendants’ motion to dismiss. Judge Buchwald granted the plaintiffs’ request for leave to file a motion to amend in a short May 3, 2013 order, a copy of which can be found here.

 

As detailed here, on March 29 2013, Judge Buchwald, in a ruling that she acknowledged at the time might be “unexpected,” granted the Libor benchmark- setting banks’ motions to dismiss the plaintiffs’ consolidated antitrust and RICO claims. In her massive 161-page opinion, Judge Buchwald held that the plaintiffs had failed to allege “antitrust injury” – that is, that the injury of which the plaintiffs’ complain was the result of the defendants’ anti-competitive conduct. Judge Buchwald dismissed the antitrust claims with prejudice.

 

Following her March 29 ruling, various groups of plaintiffs petitioned Judge Buchwald to try to obtain leave to amend their complaints. In her May 3 order, Judge Buchwald expressed skepticism that the plaintiffs could amend their pleadings sufficiently in order to address the concerns that led her to grant to the motion to dismiss. She noted that “although plaintiffs have described the allegations that they intend to add in their second amended complaint with regard to the issue of antitrust injury, we are inclined to think that none of these proposed allegations would change the outcome reached in our Memorandum and Order.”

 

Judge Buchwald cited a number of factors in support of her skepticism that the plaintiffs would be able to overcome the shortcomings of their prior complaints. First, she noted that as a result of the procedural history of the consolidated case and the revelations of the various regulatory investigations, the plaintiffs have in effect already effectively had opportunities to amend their pleadings. In addition, she noted that “plaintiffs have long been on notice that antitrust injury would be an important issue in this case,” adding that “plaintiffs never specifically argued, until after we issued our Memorandum and Order, that they would be able to satisfy the requirements for antitrust injury through additional allegations.”

 

Despite her skepticism that the plaintiffs will be able to address the antitrust injury issue in their amended pleadings, she nevertheless granted the plaintiffs leave to file a motion to amend and a proposed amended complaint. She added that “given the obvious magnitude f this litigation, we intend to proceed deliberately in evaluating plaintiffs’ request.”   However, in light of her concerns, as well as the “comprehensive manner” of her prior ruling and “the tremendous amount of resources already expended by defendants,” she said that she will review the proposed amended complaint prior to requiring the defendants to respond to any motion for leave to amend. Judge Buchwald allowed the plaintiffs two weeks in which to file a motion to amend, to which they must attach their proposed amended complaint.

 

Judge Buchwald’s May 3 order also addresses a number of other requests that other litigants have raised. Several of the defendants had sought to have her reconsider her denial of the motion to dismiss the exchange-based plaintiffs’ Commodity Exchange Act claims. Without ruling on the motion for reconsideration, she requested the parties to confer “regarding whether the exchange-based plaintiffs will be able to adequately allege their CEA claims against each moving defendant in a second amended complaint, in light of our rulings in our Memorandum and Order.”

 

In light of these other rulings, Judge Buchwald declined the request of several parties to lift the stay that has remained in place. She also decline to rule on the exchange-based plaintiffs’ request for leave to seek an interlocutory appeal, asking for additional briefing on the issue.

 

As a result of their efforts, the plaintiffs have at least managed to obtain leave to file a motion to amend. On the other hand Judge Buchwald gave them little reason from which to hope that they might overcome her concerns about their prior allegations. Indeed, among the possible outcomes is that Judge Buchwald could simply deny their motion for leave to amend. Nevertheless, Judge Buchwald’s May 3 ruling does raise the possibility, no matter how slight, that the antitrust allegations in the Libor-scandal might go forward after all.

 

Motion to Dismiss Granted in Securities Suit Against U.S.-Listed Chinese Company: In a May 6, 2013 order, Southern District of New York Judge Katherine B. Forrest granted the motion of China National Offshore Oil Co. (CNOOC) Limited, a U.S.-listed Chinese petroleum company, to dismiss the securities suit pending against the company. (The plaintiffs had previously voluntarily dismissed the claims they had filed against certain individual plaintiffs.) A copy of Judge Forrest’s May 6 order can be found here.

 

As discussed here, the plaintiffs filed their action in February 2012, alleging that the company had initially failed to disclose and then later down played two oil spills at the company’s production facilities in Bohai Bay. The company moved to dismiss the plaintiffs’ complaint.

 

Judge Forrest granted the defendants’ motion to dismiss, finding that the plaintiffs’ allegation were “insufficient to support a plausible inference of scienter.” In reaching this conclusion, she observed that “quite simply, there is not a single allegation in the complaint specifically identifying any information known to CNOOC at the time CNOOC made any of its allegedly false statements undermining the accuracy of those statements in any way.” Judge Forrest granted the motion to dismiss with prejudice.

 

Now This:  The most interesting Muppet in the world. (Hat tip to Cheezburger.com)

The collapse of the venerable Dewey & LeBoeuf law firm is a cautionary tale from which observers have drawn many lessons, including cautions about the perils associated with large law firm mergers and the challenges associated with various forms of law firm partner compensation. The firm’s failure and the claims that have subsequently arisen against the firm’s former managers also highlight important  issues surrounding management liability  insurance for law firms.

 

As discussed here, the Dewey & LeBoeuf firm was the result of a 2007 merger between the Dewey Ballantine firm and the LeBoeuf Lamb Greene & MacRae firm. After encountering financial difficulties, the firm filed for bankruptcy in May 2012. A detailed description of the firm’s collapse can be found here.  In the bankruptcy proceedings, as part of the firm’s liquidation plan, about 400 former Dewey partners agreed to repay the firm’s bankruptcy estate a portion of the compensation they had earned during 2011 and 2012. The total value of the partner contribution plan is $71.5 million. This agreement allowed these former partners to avoid further claims from the estate.

 

However, the committee representing the firm’s unsecured creditors sought and obtained leave of the bankruptcy court to pursue separate claims against the firm’s former leaders – former firm Chairman Steven Davis, former executive director Stephen DiCarmine and former Chief Executive Officer Joel Sanders. (These three individuals were expressly excluded from the agreement embodies in the $71.5 partnership contribution plan.)  Late last year, representatives of the estate sent Davis a demand letter, accusing Davis of mismanagement. In papers filed with the court seeking leave to pursue claims against the three men, the estate’s representatives alleged that the three firm leaders had, among other things, “over-distributed the Firm’s available cash to select partners; abusively relied on guarantee agreements that bore no economic rationality; and concealed the firm’s true financial condition from its partners, employees and creditors.” 

 

On April 22, 2013, representatives of the estate filed a settlement agreement reflecting that Davis, the bankruptcy estate and the law firm’s primary D&O insurer had reached an agreement to settle the estates claims against Davis. A copy of the settlement agreement can be found here.  A copy of the motion to the bankruptcy court to approve the settlement can be found here. Among other things, Davis agreed to pay $511,145 to the estate and in addition the firm’s primary D&O insurer agreed to pay $19 million in settlement of the claims against him. Sara Randazzo’s April 23, 2013 Am Law Litigation Daily article about the settlement with Davis can be found here.

 

On May 2, 2013, DiCarmine and Sanders, who are not parties to the Davis settlement, filed limited objections to the proposed settlement. A copy of their objections, in which they asked the bankruptcy court to reject or modify the settlement, can be found here. Among other things, the two men objected that the $19 million insurance settlement would, together with the $6 million “soft cap” on defense fees, deplete the $25 million limit of liability of the primary policy, while additional claims remain or have been threatened against the two of them. The two men also object that the release contained in the settlement agreement not only releases the primary D&O insurer but, according to the two men, the law firm’s excess D&O insurers as well. (According to the Am Law Litigation Daily article linked above, the law firm carried a total of $50 million D&O insurance, provided by three different insurers that the article identifies.) . Tom Huddleston’s May 2, 2012 Am Law Litigation Daily article discussing the objections can be found here.

 

The outcome of the efforts of Davis and of the firm’s primary management liability insurer to settle the claims against him, as well as the impact of the objections, remains to be seen. While the situation still has further to go before it is fully resolved, the circumstances also present some important insurance implications.

 

First and foremost, these circumstances underscore the importance for law firms of a separate program of management liability insurance. Attorneys are well aware of their need to procure and maintain errors and omissions insurance – or what they typically think of as malpractice insurance. But while they understand their need to have insurance in the event of claims against them asserting that they erred in the delivery of client services, attorneys, or at least some of them, can be reluctant to accept their need to also maintain insurance protecting their firm’s managers against claims for wrongful acts committed in the management of their firm.

 

As these circumstances demonstrate, law firm managers face the possibility of potential claims for a wide variety of potential claimants. Indeed, law firm managers at least potentially face potential claims from the same general range of claimants as does any privately held business and therefore the need for management liability insurance is the same. At a minimum these circumstances provide a vivid illustration to use to explain to law firm manager trying to understand the kinds of claims that might be asserted against them.

 

Second, the size of the proposed settlement with Davis has important implications for law firms when they consider how much management liability insurance to buy.  By the same token, the multiplicity of claims that have been asserted against the former firm managers (which are detailed in the filing the objectors presented to the court) underscore the breadth of litigation that can arise against firm management. Many law firms do not need to be persuaded that they need to carry hefty limits of liability for their E&O insurance, but they may underestimate their needs when it comes to their management liability insurance. As a reader pointed out to me in a recent email exchange, many law firms carry significantly greater levels of E&O insurance than management liability  insurance. The scale of the claims involved here could encourage some law firms to consider increasing the limits of liability for their management liability insurance program.

 

Third, this situation also raises important considerations with respect to the terms and conditions of a law firm’s management liability insurance program. In November 2012, when the unsecured creditors’ committee first sought leave of the bankruptcy court to pursue claims against the three former firm leaders, one concern that was raised was whether the firm’s management liability  insurance would provide coverage for a claim of that type, as the creditors committee in effect would be asserting the law firm’s own claims against the individuals.

 

The concern was that these claims might run afoul of the policy preclusion of coverage for claims filed by one insured against another insured. The fact that the estate and Davis have reached a settlement agreement to be funded largely by management liability insurance suggests that this potential coverage issue was resolved. But the fact that this concern was raised does have important implications about the need to ensure that the insured vs. insured exclusion is revised to insure that it does not preclude coverage for claims brought by representatives of the bankruptcy estate, such as a bankruptcy trustee or creditors’ committee.

 

There are other insured vs. insured exclusion concerns potentially affecting coverage under a law firm management liability insurance policy. For example, one type of claim that frequently arises in the law firm context is a claim by a law firm partner not involved in firm management against the firm’s managers. The way a law firm’s management liability policy would respond to this type of claim is an important coverage consideration, as is the policy’s response to partnership and compensation issues.

 

Many observers have chosen to interpret the demise of the Dewey & LeBoeuf law firm as a sort of a morality tale about the wages of supposed greed and excess. While some may find enough from the law firm’s demise to support that kind of an interpretation, it would be unfortunate if those lessons were the only ones drawn from these events. Even if the law firm’s collapse is the result of the firm’s own peculiar set of circumstances, there are still important lessons for other law firms, even those that consider their circumstances to be different from those of the late lamented Dewey LeBoeuf firm. Among the lessons that every firm would do well to heed is the message about the importance of management liability insurance for law firm managers.

 

Special thanks to a loyal reader for sending me a copy of the objection to the Davis settlement.

 

FDIC Files Another Failed Bank Lawsuit: On April 30, 2013, the FDIC filed its latest lawsuit against former directors and officers of a failed bank. In a suit the agency filed in the Northern District of Illinois in its capacity as receiver of the failed Midwest Bank and Trust Company of Elmwood Park, Illinois, which failed on May 14, 2010, the FDIC asserts claims for gross negligence, negligence and breaches of fiduciary duty against 18 former directors and officers of the bank. A copy of the FDIC’s complaint can be found here. The American Banker’s May 2, 2013 article about the lawsuit can be found here.

 

In its complaint, the FDIC alleges that the Defendants “exhibited an extreme departure from the standard of care and want of even scant care in agreeing to lend $100 million to six uncreditwortthy borrowers and affiliated parties” without employing care and diligence to ensure that the borrowers were creditworthy or that the proposed projects were even feasible or would likely result in repayment of the loans. The alleged misconduct allegedly took place after regulators had warned the bank about its lending practices. The complaint further alleges that the defendants “disregarded prior experience, criticism and the Bank’s specific policy” in connection with $85 million in investments in certain preferred stock. Despite prior bad experience with similar investments, the defendants “pursued an uninformed gamble and held the stock until it had most of its value,” producing a loss for the bank that allegedly could have been avoided if the bank had followed its own announced policies and practices. In its complaint the FDIC seeks to recover over “$128 million in damages.”

 

With the filing of this latest complaint, the FDIC has now filed a total of 58 lawsuits against former directors and officers of failed banks, including fourteen so far this year. As I discussed here, it seems likely there will be more to come, as well. Special thanks to a loyal reader who sent me a copy of the Midway Bank complaint.

 

Mugging for the Camera: Following its cameo appearance during Advisen’s recent quarterly claims update webinar, one of The D&O Diary’s coffee mugs also made a guest appearance on Twitter, as captured below. To find out how you can get one of The D&O Diary coffee mugs, refer here.

 

 

The liabilities of corporate officials are a reflection of the laws of the jurisdiction in which the corporation is chartered. The jurisdiction’s liability provisions in turn have important implications for the structure of the insurance put in place to protect the corporate officials.

 

In the following guest post, Michael Hendricks (pictured above left), the founder and head of the German D&O specialist broker HENDRICKS & CO GmbH and Burkhard Fassbach (pictured above right), licensed to practice law in Germany and standing legal counsel to the German operation of the London-based Howden Broking Group, take a close look at the particular need for separate D&O Insurance Cover for Supervisory Board Members in the German two-tier board system.

 

I am very grateful to Michael and Burkhard for their willingness to publish their post on this site. I welcome guest posts from responsible commentators on topics relevant to this blog. Any readers who are interested in publishing a guest post on this site are encouraged to contact me directly. Michael and Burkhard guest post follows:



Introduction

D&O Insurance Policies are widespread in Germany nowadays after initial adoption from its homeland in the United States. The product designation (Directors & Officers) directly refers to the American one-tier board system. If the German insurance industry would not have simply had assumed the American designation and had instead rather taken the German two-tier board system into account, the German product designation more precisely had better been labeled as Insurance for Supervisory and Executive Board Members – S&E rather than D&O Insurance.

Both, Members of the Supervisory Board and the Executive Board are “insured persons” under the D&O Company Policy and are subject to the potential liability of Board Members. Only the “insured persons” are entitled to the rights arising from the D&O Policy. However, the company is the sole Policyholder and pays the premiums. The insured event (Trigger) is foremost a claim made against an insured person due to alleged breach of duty.

In the framework of the liability regime set out by the German two-tier board system, the Supervisory Board is the competent corporate body in charge of triggering a claim against the Executive Board. The corporation (Policyholder) – represented by the Supervisory Board – takes legal action against the Executive Board due to alleged breach of duty.

The D&O claims experience gained in recent times clearly shows that significant conflicting interests occur because the D&O Insurance carrier cannot at the same time fulfill its fiduciary duty towards the Executive Board and the Supervisory Board. In particular, the problems arise in the event that the Executive Board – which has been sued by the company in the first place – issues a third-party notice towards the Supervisory Board in the court proceedings of the civil liability trial in order to take precaution for a later recourse against the Supervisory Board, more precisely against individual former or current Members of the Supervisory Board.

For the sake of avoiding such conflicting interests – in particular in the event of third-party notices – it is of utmost importance that the corporation buys an independent D&O cover for the Supervisory Board and thereby ensures full harmony with the German dual two-tier board system. It is essential that the D&O Insurance cover for the Supervisory Board is provided by a totally separate Insurance carrier which is definitely not participating in the company’s D&O Insurance program (Primary or Excess layers).

Twin Tower Model

In order to reflect the dual two-tier board system cleanly and properly in the concept of D&O Insurance programs, the Twin Tower Model would be the best solution: Tower 1 by Insurance carrier A only covers the Executive Board. Tower 2 by the Insurance carrier B only covers the Supervisory Board.

For reason of the „principle of equality of arms“, both towers should have the same limit of cover (insured amount). Any conflicting interests are destroyed at birth by implementing the Twin Tower Model. A powerful Supervisory Board should in any case explore such a solution. However, in a D&O market expected to become tougher the Twin Tower Model will only sell for high premiums. Therefore, the Two-Tier Trigger Policy for Supervisory Board Members outlined as follows is much more meaningful.

Two-Tier Trigger Policy

A special D&O Policy – only for the Supervisory Board – should solely align with the need for protection required by the Supervisory Board. The protection requirements shall tie in with the triggers (insured events). In contrast to the Twin Tower Model the Supervisory Board Members still remain insured persons under the Company’s D&O Policy for the time being. The Two-Tier Trigger Policy only steps in whenever a conflict of interests arises. A presentation of the several Triggers is shown as follows:

Trigger 1: Exhaustion of the insured limit of the Company’s D&O Policy

The first Trigger is the exhaustion of the insured limit of the Company’s D&O Policy (Primary and Excess layers). In this respect the Two-Tier Trigger Policy is functioning like an excess D&O Policy (Following Form to the Company’s D&O Policy). As a result an additional insured limit provided by a separate D&O insurance carrier is available exclusively to the Supervisory Board.

This Trigger in particular ensures the necessary independence to carry out the mandate of the Supervisory Board Member and this can be clearly shown by the following scenario:

As a general rule, claims in regard to breach of duty are foremost made against the Executive Board. Whilst asserting such claims the Supervisory Board runs the risk that the insured limit of the Company’s D&O Policy is exhausted (“eaten up”) by the Executive Board – perhaps only by defense costs – and the Supervisory Board is absolutely without any cover in the event of a later potential recourse litigation in the future. Should such a scenario become obvious, the defense lawyers of the Executive Board Members could solely by a tactical third-party notice served to the Supervisory Board demonstrate the defenselessness of the Supervisory Board. Thereby, the independence of the Supervisory Board mandate is concretely endangered. Individual Supervisory Board Members who are the recipients of a third-party notice could for their own personal interest – contrary to the company’s interest – work towards a settlement deal, what they possibly would not do if they had cover provided by their own independent D&O insurance policy.

Trigger 2: Third-Party Notice

Besides the trigger of the exhaustion of the insured limit, an independent D&O Policy for Supervisory Board Members shall certainly have to provide the third-party notice as a trigger. This trigger shall already come into action prior to the exhaustion of the insured limit of the company’s D&O policy. In the event of a third-party notice significant conflicting interests arise in the framework of the two-tier board system, which can be clearly shown by the typical course of action and the dynamics of a D&O claim case:

In the course of the decision-making of the Supervisory Board moving to a resolution regarding asserting a claim against the Executive Board, the company’s (claimant’s) lawyer reviews the likelihood of success of a lawsuit. The company / Policyholder has a primary interest in balance sheet protection and therefore tries to push the D&O insurance carrier towards adjusting the claim.

The insurance carrier has a statutory option right between adjusting the claim or defending against the claim.

Usually and as a first step, out-of-court claims adjustment negotiations between the parties are conducted on the basis of a draft statement of a claim (writ of summons). Should the insurance carrier only offer a very low quota, then a negotiated settlement could in an extreme situation be regarded as breach of fiduciary trust by the Supervisory Board, if the quota offered by the insurance carrier is disproportionate in relation to the amount of the asserted claim. The more so, as the Supervisory Board basically meets the duty to assert claims against the Executive Board pursuant to the highest-court case-law in Germany and failure to act accordingly results into potential liability of the Supervisory Board.
 

Should out-of-court settlement negotiations fail, a civil liability trial at the ordinary courts of law – oftentimes over the various stages of appeal – must determine if a negligent breach of duty occurred which has caused a financial loss.
 

In the event the Insurance carrier exercises its statutory option right and elects to bear the defense costs for the insured persons (Executive Board), then the insurance carrier obviously has an own interest in successfully defending the claims.
 

More and more often insurance carriers take the approach of an active liability defense. By a collaborative defense which is set out by the insurance carrier the D&O insurer can steer the entire defense strategy and tries to limit exceeding lawyer’s expenses. The defense lawyers can each present individual statements of the case on top of the basis of the collaborative defense. In the framework of an active liability defense the insurance carrier as an intervener accesses the legal court-proceedings on the side of the defendants by the rules of legal intervention stipulated in the Code of Civil Procedure.

The company / the Supervisory Board perceive the defense litigation brief by the lawyer appointed by the D&O Insurer as rather strange, hence the insurance carrier is still the contractual party and pockets the insurance premiums even if the D&O insurance is by construction insurance for the benefit of third parties (insured persons).

The mistrust results into escalation at the latest in the event individual Members of the Supervisory Board are recipients of third-party notices issued by the sued Executive Board Members. With a view to potential future recourse litigation the defense lawyers advise to issue a third-party notice towards the Supervisory Board Members. They argue that the Supervisory Board shares liability, had knowledge of the alleged breach of duty and has supported or approved such breach of duty. In the event a judgment against the Executive Board becomes final and res judicata – contrary to the expectation of the defense lawyer – then recourse claims against the Supervisory Board arise.

In particular current Members of the Supervisory Board will not necessarily take the decision to intervene the legal court-proceedings on the side of the defendant. Obviously, it would be highly contradictory if a Supervisory Board Member who is responsible for asserting the claim would subsequently intervene the legal court-proceeding on the side of the defendant. Should they do so, they certainly need to think about resigning from the Supervisory Board with immediate effect. However, in individual cases an intervention on the side of the defendant may make sense for former Members of the Supervisory Board or for Supervisory Board Members who had been outvoted in the framework of the resolution regarding asserting claims against the Executive Board.

Under the company’s D&O Policy the third-party notice is one of the triggers defined as an insured event. The Supervisory Board Members who are the recipients of a third party-notice will notify the occurrence of an insured event to the company’s D&O insurance carrier.
 

Apparently, the Members of the Supervisory Board who are recipients of a third-party notice are in need of legal consultation regarding questions of intervention to the court proceedings, whilst taking potential future recourse litigation into consideration. The lawyer appointed by the Supervisory Board Member – who had received a third-party notice – in a first step needs to review the entire records of the court case which are often very voluminous and as a second step needs to argue scenarios of liability and recourse with his client and finally provide legal advice regarding intervention of the court proceedings.

Should an intervention on the side of the defendant not be viable due to the reasons outlined above the alternative of intervention on the side of the plaintiff or no intervention at all needs to be reasoned. An intervention on the side of the plaintiff may make sense if it definitely needs to be ensured that the Member of the Supervisory Board who is the recipient of a third-party notice is accommodated in the distribution circle of the judicial post of the liability trial (litigation briefs) and is thereby not cut-off from the flow of information. Individual Members of the Supervisory Board do not always have access to the entire records of the court case in particular in the event they have already left the Board.

The assessment of the prospect of success regarding potential recourse litigation against the Supervisory Board Members – who are the recipients of the third-party notice – is at the core of the legal advice.

Subsequent to a third-party notice the Member of the Supervisory Board needs to make a request to the company’s D&O insurance carrier for a confirmation of cover regarding legal expenses; whereas exactly the same D&O insurance carrier had beforehand sided with the defendants as an intervener in the course of active liability defense and may have possibly even supported the third-party notice towards the Supervisory Board issued by a defendant.
 

Here massive conflicting interests arise! The D&O insurance carrier of the company’s policy cannot at the same time fulfill its fiduciary duty towards the Executive Board (Trigger: claims made / lawsuit) and the Supervisory Board (Trigger: Third-Party Notice).

Imagine the following case:

After the trigger of the third-party notice had been pulled, the affected Supervisory Board Member asked the company’s D&O insurance carrier – who had sided with the defendants as an intervener beforehand – for a confirmation of cover. Firstly, the D&O insurance carrier was asked to bear the legal expenses related to the questions of intervention to the court proceedings. After having basically agreed to the principle of hourly rates for the lawyer’s fees, the D&O insurance carrier wanted to limit the lawyer’s mandate to only strategically reviewing the facts of the case rather than a full blown legal review. In view of a solid legal opinion covering the potential recourse which is a requirement for the question of intervention to the court proceedings, the lawyer appointed by the Supervisory Board Members – who had received a third-party notice – has not agreed to limit the mandate to a strategic review due to his overall and extensive lawyer’s duties towards his client.

The time-sheets of the lawyer included the time spent for the legal opinion in respect to potential recourse litigation. The D&O insurance carrier asked for a copy of the legal opinion (prospects of potential recourse litigation) and stated that the D&O insurance carrier is entitled to receive a copy of the legal opinion; otherwise the lawyer’s bill would not be paid by the D&O insurer.
 

Due to the fact that the D&O insurer had in the first place sided with the sued Executive Board Members as an intervener, the lawyer appointed by the Supervisory Board Members – who received a third-party notice – has declined to hand over the legal opinion regarding the potential recourse litigation to the D&O insurer. Because of the active liability defense and the collaborative defense there was also the risk that confidential and sensible information from the legal opinion (recourse litigation) or significant contents hereof directly or indirectly leaked to the lawyers of the defendants, keeping in mind that the D&O insurer is steering the entire defense. A declaration by the D&O insurer whereas the contents of the legal opinion is subject to absolute confidentiality and are not shared with the lawyers of the defendants was not enough to convince the lawyer of the Supervisory Board Members of such a “Chinese Wall."

If the mere intention of the D&O insurer had been to get clear certainty about the actual work time of the lawyer and the correctness of the time-sheets, then the inspection of the legal opinion by a neutral third party would have absolutely served this purpose. If a mutually recognized neutral lawyer had inspected the legal opinion about potential recourse litigation and had then confirmed towards the D&O Insurer that the time-sheets regarding the legal opinion are correct, then the D&O Insurer actually should have been in a position to pay the lawyer’s bill. However, the D&O insurer has not agreed with this proposal and rather insisted to receive a copy of the legal opinion about recourse litigation.

The lawyer of the Supervisory Board has strongly advised not to hand over the legal opinion – under no circumstances – to the D&O insurer who had been biased by the active liability defense.

Due to a severe conflict of interests the D&O insurer was not able to fulfill its fiduciary duties in the described situation.

The concept of the Two-Tier Trigger Policy for Supervisory Board Members takes up such conflicting interests and defines the event of a third-party notice as a trigger!

The special need for protection of a single Member of the Supervisory Board also derives from the following aspect: In such a scenario massive conflicting interests can arise within the Supervisory Board. Members of the Supervisory Board who are not recipients of a third-party notice may regard their colleagues in the Supervisory Board who are recipients of a third-party notice as biased. It has already been outlined that such affected members could for personal interests – contrary to the company’s interest – work towards a negotiated settlement. In order to avoid such conflicting interests within the Supervisory Board, the competence for asserting the claims against the Executive Board is assigned to a Claims Adjustment Committee within the Supervisory Board. Such members of the Supervisory Board who are affected by the third-party notices cannot become members of the Claims Adjustment Committee. The Claims Adjustment Committee has its own bylaws – and also has employee’s representatives as members – and the committee has a chairman who is steering the litigation strategy against the Executive Board with the plaintiff’s lawyer. Whereas – for the sake of avoiding conflicting interests – the Members of the Supervisory Board who are recipients of third-party notices need to seek their own independent legal advice regarding complex questions of intervention to the liability court-proceedings and potential future recourse litigation.
 


Trigger 3: Rescission

Another trigger is the rescission of the company’s D&O policy. For instance, if a Member of the Executive Board had made false statements in the framework of a warranty statement towards the D&O insurer, there is a risk that the D&O insurer declares rescission of the entire D&O Policy with the effect that all insured persons – apparently also including the Members of the Supervisory Board – remain to stand unprotected without any D&O insurance cover.

Trigger 4: Special Representative pursuant to section 147 German Stock Companies Act

Further conflicting interests can arise in the event a special representative asserts claims at the same time against the Supervisory Board and the Executive Board.

Logically, conflicting interests between the Supervisory Board and the Executive Board arise, which derive from the different scope of functions and duties of both Boards in the dual two-tier board system, in particular in the event they are the target of a legal attack.

The dispute between both corporate Boards always centers on the core issue, if the Executive Board has informed the Supervisory Board or has provided sufficient or complete information (argument of the Executive Board) or if the Supervisory Board has not been sufficiently informed or even has been misled (argument of the Supervisory Board).


Future Triggers

The Two-Tier Trigger Policy shall always come into action if there is a need for the protection of the Supervisory Board and there is a conflict of interests between the Executive Board and the Supervisory Board, which has its origin in the dual two-tier board system. Certainly, the product is at an early stage yet and time will tell which additional triggers need to be defined as insured events in the future.

Individual-Policy

Last but not least an individual Member of the Supervisory Board may wish to have an individual D&O Policy. In this alternative the individual Supervisory Board Member is the sole Policyholder and has to pay the premiums out of his own pocket. For multiplayers this has the advantage that mandates in several Supervisory Boards of different companies – to be listed in the certificate of insurance – are covered.

Future-Outlook

Hopefully, a speedy distribution of the Two-Tier Trigger Policy for Supervisory Board Members will finally bring the concept of D&O insurance programs in Germany in harmony with the dual two-tier board system. This will most certainly not cloud the trustful co-operation between Executive Board and Supervisory Board in times of sunshine with mistrust. Rather, the clear separation and borderline between the D&O cover with separate D&O insurance carriers results in a strengthening of both mandates – Supervisory Board and Executive Board – and can therefore only be advocated in the light of “best practice“ and “Corporate Governance.“
 

 

When Southern District of New York Judge Naomi Reice Buchwald entered her order in the consolidated Libor litigation on March 29, 2013, she dismissed the plaintiffs’ antitrust and RICO claims against the Libor rate-setting banks,  and she also declined to exercise supplemental jurisdiction over the plaintiffs’ state law claims, which she dismissed without prejudice. The upshot of this ruling was that it left the plaintiffs to work out whether they wanted to appeal the dismissal ruling or try to pursue their state law claims in state court (or perhaps both).

 

Now one of the plaintiffs from the consolidated antitrust litigation has made a move. On April 29, 2013, the Charles Schwab Corporation and related Schwab entities (including several Schwab funds) filed an action in California (San Francisco County) Superior Court asserting a variety of state common and statutory law claims as well as claims under the Securities Act of 1933. A copy of the complaint can be found here (Hat Tip to Alison Frankel, who has an April 30, 2013 article on her On the Case blog, here, about the new Schwab lawsuit).

 

Schwab’s 125-page complaint essentially alleges that the Libor rate-setting banks manipulated the Libor benchmark rate, which cost Schwab and its various funds millions of dollars of interest income. Schwab claims that rate setting banks suppressed the benchmark borrowing rate, which permitted the banks to pay unjustifiably low interest rates on various securities tied to the Libor benchmark. The complaint alleges that the various Schwab entities invested billions of dollars based on alleged representations about the integrity of the benchmark rate-setting process.

 

Schwab’s complaint asserts multiple separate causes of action, including claims for fraud; deceit and concealment; violation of Section 17200 of the California Business and Professions Code (unfair business practices); breach of the implied covenant of good faith and fair dealing; violations of Sections 25400 and 25401 of the California Corporate Code (market manipulation); rescission of contract; unjust enrichment; and violation of Sections 11, 12 and 15 of the Securities Act of 1933. The only defendants named in the complaint are the Libor rate-setting banks themselves. There are no individual defendants named nor are there any other third parties named as defendants.

 

The defendants will of course have a variety of defenses on which they may attempt to rely in defending against the claims. Among other things, the defendants undoubtedly will seek to rely on statute of limitations defenses. In anticipation of this line of defense, Schwab devotes a certain amount of the complaint to detailing the ways that the defendants concealed the benchmark manipulation. The plaintiffs argue that the relevant statutes of limitations should be tolled until March 2011, when UBS disclosed that it was the subject of a regulatory investigation. The defendants will undoubtedly rely on the Wall Street Journal articles that appeared in spring 2008 raising questions about possible manipulation of the Libor rates.  And as Frankel points out in her blog post about the case, the defendants will also argue that the various Schwab entities can’t quantify their alleged damages.

 

The plaintiffs filed their ’33 Act claims as part of their state court action in reliance on the concurrent state court jurisdiction provisions in the ’33 Act. It will be interesting to see if the defendants seek to remove the action to federal court. Whether or not a state court ’33 action is removable is an issue that was extensively litigated in connection with several credit crisis-related suits. As reflected here, notwithstanding concurrent state court jurisdiction in the ’33 Act, the Luther v. Countrywide lawsuit, though initially filed in state court, wound up in federal court. The Ninth Circuit rulings in the Luther case could allow this case to be removed to federal court and to stay there.

 

Among the interesting issues with respect to Schwab’s assertion of claims under the Securities Act are the possible D&O insurance coverage implications. The only defendants in most of the Libor-scandal related lawsuits are the corporate entities. In general, with the exception of the Barclays securities class action lawsuit, there are no individual defendants. The corporate entity coverage under the typical public company D&O insurance policy provides coverage only for securities claims. Other than the Barclays action, the Libor-scandal related litigation had not involved securities claims, and therefore by and large likely had not triggered the entity coverage available in most D&O insurance policies.

 

With Schwab’s assertion of Securities Act claims in its new state court complaint, there have now been claims asserted against all of the Libor rate-setting banks that potentially could trigger the entity coverage found in the typical D&O insurance policy. (Whether the coverage under the various entities’ policies has actually been triggered will of course depend on the terms and conditions in the entities’ policies.) There is of course the possibility that other Libor-scandal plaintiffs will now file their own securities fraud actions. Either way, the assertion of these securities claims raises the possibility that at least a portion of the defendants’ defense expenses might be covered under their D&O insurance policies, and possibly a portion of future settlement amounts if any. In other words, there seems to be an increased possibility of more significant loss costs for affected D&O insurance.

 

It remains to be seen if other Libor scandal plaintiffs whose claims were dismissed in Judge Buchwald’s March ruling now seek to follow Schwab and try to pursue state law claims against the rate setting banks. The one thing that is clear is that Judge Buchwald’s dismissal was just one stage in what undoubtedly will be a protracted multistage process as the Libor-scandal related litigation makes its way through the courts. The bottom line is that the Libor-scandal related litigation has much further to run and will continue to unfold for months and perhaps years to come.

 

My New All-Time Favorite Soccer Goal Call: When Lionel Messi scored an incredible goal in a recent La Liga game between Barcelona and Atletico Bilbao, announcer Ray Hudson basically had a brain explosion. Among other things, Hudson said, of Messi’s ball movement past the defenders, that “he literally disperses his atoms inside of his body on one side of the defender, and then collects them on the other.” Literally? Watch the goal and listen to the call on this video.

 

During the first quarter of 2013, new corporate and securities lawsuits and regulatory enforcement actions increased slightly compared to the fourth quarter of 2012 but remained well below annual averages over the last two years, according to a new report from Advisen, the insurance information firm. The April 2013 report, which can be found here, is entitled “D&O Claims Trends: 1Q 2013,” notes that “if the first quarter is any indication, it appears that this downward trend may continue throughout 2013.”

 

Reeders reviewing the Advisen report will want to be very careful to note that the report uses its own terminology. In particular, the report uses the term “securities suits” to refer to all categories of corporate and securities litigation. Among the subsets within this larger category of “securities suits” is what the report calls “securities fraud” suits, which as used in the report refers to actions brought by regulatory and enforcement authorities, as well as private securities suits that are not brought as class actions. The category of “securities fraud” suits does not include securities class action lawsuits, which have their own separate category of “securities class action” suits, which part of the larger category of “securities suits.” Readers will want to be very attentive to the report’s usage of these terms.

 

According to the report, the first quarter, which traditionally is a busy period for corporate and securities litigation, saw a 40 percent decrease in the number of new corporate and securities lawsuits compared to the first quarter of 2012. Though the activity in 1Q13 was up slightly from the fourth quarter of 2012, the quarterly total of new corporate and securities lawsuits (313) was the third lowest quarterly total since 2009. The leading type of new corporate and securities lawsuits during the first quarter was what the report calls “securities fraud” suits (that is, the regulatory and enforcement actions plus securities suits that are not brought as class actions), which were up 13 percent from the fourth quarter of 2012 but down 33 percent from the 2012 quarterly average.

 

Many readers of this blog are aware that there has been an upsurge in M&A-related litigation in recent years. Interestingly, the report notes that although M&A activity increased during the first quarter of 2013, the number of M&A-related suits decreased, which is, the report notes, “a development that will require further review.”

 

For several years, Advisen has noted in its reports that securities class action lawsuits as a percentage of all corporate and securities litigation has been declining, from 22 percent in 2007 to 11 percent in both 2011 and 2012. The percentage ticked up slightly in the first quarter of 2013, when securities class action lawsuits represented 12 percent of all corporate and securities lawsuits. However, in absolute terms, the number of securities class action lawsuits continued a downward trend during the fourth quarter of 2013. During the first quarter of 2013, there were only 36 securities class action lawsuit filings, compared to 50 during the first quarter of 2012 (representing a decline of 28 percent).

 

Companies in the financial sector experienced the most new corporate and securities lawsuits in the first quarter of 2013. New lawsuits against companies in the sector represented 26 percent of all new corporate and securities lawsuits in 1Q13. While still the sector with the highest level of new lawsuit activity, the percentage of suits against companies in the sector has actually declined. For the forth quarter of 2012, the equivalent percentage was 31 percent and the 2012 quarterly average was 28 percent. The report attributes this decline to the continuing winding down of the subprime and credit crisis-related litigation wave.

 

The Advisen report concludes with a closer look at the recent wave of “say on pay” and other compensation-related litigation.

 

Speakers’ Corner:On Tuesday, April 30, 2013, I will be participating in Advisen’s Quarterly D&O Claims Trends Webinar, in which, among other things, the Advisen report will be discussed. In this free webinar, which will take place at 11:00 am EDT, I will be participating on a panel with Paul Ferrillo of the Weil Gotshal law firm, David Murray of AIG, and Jim Blinn of Advisen. The panel will discuss claims trends and developments during the first quarter of 2013. Registration information for the webinar can be found here.

 

PwC Releases 2012 Securities Litigation Study: Earlier this month, PwC released its annual study of the securities class action litigation. I had not previously linked to the study because for a time the study was not available on the firm’s website. The April 2013 study, which is entitled “At the Crossroads, Waiting for a Sign: 2012 Securities Litigation Study” now can be found here.

 

As other reports have previously noted, the PwC study notes that securities class action litigation declined in 2012 compared to prior years and compared to historical averages. The report also notes that the decline during the year was largely concentrated in the year’s second half; while securities class action litigation filings were at or near historical levels in the first two quarters of 2012, the number of new filings declined sharply during the year’s second half.

 

The PwC study also notes, consistent with prior studies that the number and value of securities class action settlements declined in 2012.

 

How Would You Look With a D&O Diary Coffee Mug?: Only one way to find out. Refer here for details. (Including the fact that the mugs are free. That’s right. Free).

 

According to an adage from the Internet’s early days, information wants to be free. These days, the free Internet is being challenged. Many sites have recently imposed pay walls or otherwise started to charge visitors.

 

Here at The D&O Diary, we are about to celebrate our seventh anniversary of providing information and commentary free of charge to readers around the world. Every now and then a concerned reader will ask, with furrowed brow, “You aren’t going to start charging me to visit your site are you?” Not to worry. For a lot of reasons, we are not about to start charging. The D&O Diary always has been and always will be free.

 

We are committed to keeping this site free because we think of our readers as our partners. In fact, we are so grateful for this sense of partnership that we would like to give our readers a token of our appreciation.

 

We would like readers who are interested to have one of our limited-edition designer coffee mugs, pictured above. Just to be clear, the price of the mug, like the price of visiting this site, is free.

 

If you email me at dandodiary@gmail.com and provide me with your name, address and e-mail address, I will mail you a mug. For free. (I promise that I will not use your information for any reason other than sending you the mug and for communicating with you about it. I will not share your information with anyone.)

 

That’s right. I am offering to mail you a D&O Diary coffee mug — for free.

 

There’s just one little catch.

 

If I send you a mug, you agree that you will take a picture of the mug and send me the picture along with a 250-300 word description of the circumstances behind the picture. I will publish the best pictures and descriptions on this site – “best” meaning the most creative and imaginative.

 

What kinds of pictures and descriptions might readers send in? I don’t know. I have confidence that this blog’s resourceful readers, inspired by the experience of receiving a free D&O Diary coffee mug, will demonstrate unparalleled levels of ingenuity and inventiveness.

 

To get everyone started, here is an illustration of what a picture and description might look like.

 

In this picture, I am standing at the Ledges Overlook in the Cuyahoga Valley National Park, near Peninsula, Ohio. Yes, there is a National Park in Ohio, located less than 30 minutes from The D&O Diary’s world headquarters. By the way, the park, the headquarters, and in fact the entire state of Ohio are all located in the Eastern Time Zone. This picture was taken by Mrs. D&O Diary. Later, the two of us christened our new mugs with a ‘00 vintage bottle of Château Smith Haut Lafîtte. I purchased the bottle at the Chateau –which is located in the Graves wine region south of Bordeaux –when I traveled there with several industry colleagues in May 2004. (Right now, several old friends are smiling and nodding at the recollection of a great trip.) When I purchased the bottle, the wine steward fixed me with a cold look, shook her finger in my face and said, “Attention! Do not drink for ten years!” I am not sure whether she meant ten years from the grape harvest or ten years from the day I bought the bottle, but either way I think she would approve of our enjoyment of the wine as the inaugural beverage served in our new mugs.

 

More Pictures and an Afterword

 

“Information wants to be free/and so does The D&O Diary.” This is the Free Stamp, a Claus Oldenburg sculpture located on a bluff in downtown Cleveland next to City Hall and overlooking Lake Erie.

 

 

 

 

 

 

 

 

 

 

 

Cleveland Rocks, Baby. The Rock and Roll Hall of Fame is one of Cleveland’s many beautiful buildings. I know that some of you, at this very moment, can hardly resist the urge to shout, “Play Freebird!”—because “free” is good.

 

 

 

 

 

 

 

 

 

 

 

Cleveland may be known for its harsh winters, but the truth is that Cleveland has four distinct seasons. And after a long winter, spring is a glorious thing. Here is a picture of springtime at Horseshoe Lake, in Shaker Heights, Ohio. While it is true that no one can do anything about the weather, the weather is, undeniably, free.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Do you know what the price of admission is for the Cuyahoga Valley National Park? You guessed it – free.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Afterword:  I hope that you are already thinking about the pictures you will take when you get your mug. Please let me know if you would like me to send you one. Due to my upcoming business travel, it will be a few days before I can actually send out the mugs. The first batch will go out around the middle of May. When you send in your pictures and descriptions, please send pictures in the JPEG format. Send the descriptions as a Word document without text formating (that is, no bold face, italics or underlining — the  formatting doesn’t translate well into the blogging software). I look forward to seeing what everyone comes up with.

 

Disputes over notice of claim requirements usually involve questions about the timing or content of the notice. A recent notice dispute involving UnitedHealth Group raised neither questions of timing or content; rather, the dispute involved the question of “to whom” the notice must be sent. In an April 25, 2013 opinion (here), District of Minnesota Judge Patrick J. Schlitz, applying Minnesota law, held that in order to satisfy the notice of claim requirements in an excess  insurance policy, the notice had to be sent to the insurer’s claims department as specified in the policy. Because the policyholder had failed to establish a genuine issue of fact whether the claims department had received the notice of claim, the Court granted summary judgment in favor of the excess insurer.

 

The dispute over the adequacy of notice arose in the context of a protracted and procedurally complicated action in which UnitedHealth is seeking insurance coverage from its insurers for a series of claims in which the company was involved between December 1998 and December 2000. The company’s primary insurance policy has been exhausted by payment of loss and the company has settled with five of its excess insurers. Four excess insurers remain as defendants.

 

In his April 25 order, Judge Schlitz considered a number of different motions in the continuing coverage litigation, including the motion for summary judgment of one of the remaining excess insurers, based on its assertion that it had not been provided notice of a claim known as the AMA claim. The AMA claim later settled for $350 million.

 

The notice provision in the excess insurer’s policy specified that:

 

It consideration of the premium charged, it is hereby understood and agreed that notice hereunder shall be given in writing to [the excess insurer], Financial Services Claims Department, 175 Water Street, New York, New York 10038 (herewritten the “Insurer”)

(a) The Company or the Insureds shall, as a condition precedent to the obligations of the Insurer under this policy give written notice to the Insurer as soon as practicable during the Policy Period, or during the Extended Reporting Period (if applicable), or [sic] any claim made against the Insureds.

 

According to the court’s opinion, the parties agreed that UnitedHealth had not provided written notice of claim sent to the specified address. UnitedHealth nevertheless argued that it had satisfied the notice requirements because it had “substantially complied” with the provisions. Judge Schlitz agreed with UnitedHealth that because Minnesota law “generally disfavors technical and narrow objections to the existence of coverage, especially when it comes to matters of notice,” substantial compliance is sufficient to satisfy a “to whom” notice requirement. But, he added, “substantial compliance requires notice that is substantial.”

 

Judge Schlitz disagreed with UnitedHealth that the “to whom” requirement is satisfied if the company “provides any kind of notice to any kind of agent” of the excess insurer.  He found that under the policy’s provisions, the notice requirement “has not been substantially complied with unless the Claims Department received notice of claim – somehow, from someone — during the policy period.” He added that if an agent of the insurer becomes aware of a claim “but the agent does not work in the Claims Department and does not notify the Claims Department of the claim, then there has not been substantial compliance with the ‘to whom’ requirement.” Judge Schlitz reasoned in that regard that:

 

“Compiance” with a provision of an insurance policy should not be deemed “substantial” if doing so would defeat the very purpose of the provision. And the very purpose of a “to whom” requirement – its entire reason for existing – is to ensure that notice is provided not just to the insurance company, but to a particular part of the insurance company. A large insurance company has a legitimate reason to require that notice of claim be given to a particular person or department with the company, rather than to any of the company’s thousands of employees and agents scattered around the globe. Otherwise, there is a substantial danger that the “notice” will not be recognized as such and will not serve its function.

 

Judge Schlitz added that “The Court can conceive of no reason why an insurer … should not be able to protect itself by requiring that notice be given to a particular person or department. And enforcing such a requirement does not place an onerous burden on an insured – particularly an insured such as United, which is itself a huge and sophisticated insurance company, and which has no excuse for failing to send notice of the AMA claim to the Claims Department, as [the excess insurer’s] policy clearly required United to do.” He concluded that in order for UnitedHealth to show that it substantially complied with the notice requirement, it must show that notice of the AMA claim was received by the Claims Department during the policy period.

 

Judge Schlitz then reviewed the various ways in which UnitedHealth claimed that it had provided notice of the claim. UnitedHealth argued that the AMA claim had been noticed in a monthly loss run report that the company’s broker supplied to the excess insurer and that the loss run report also was attached to UnitedHealth’s renewal insurance application. However, while Judge Schlitz found that there is sufficient evidence from which a jury could find that someone at the excess insurer received the loss runs, there was no evidence that that the loss runs were provided to the claims department.

 

And while the AMA claim apparently was discussed at a meeting in connection with UnitedHealth’s  insurance renewal, there was no evidence that anyone from the excess insurer’s claims department had attended the meeting. Judge Schlitz specifically concluded that there was no evidence to suggest that the excess insurer’s claims department had received information about the AMA claims from the underwriting department.

 

Judge Schlitz also rejected UnitedHealth’s argument that because it had provided notice of claim to the primary insurer that is owned by the same insurance holding company as the excess insurer asserting the notice defense that the notice requirements had been satisfied.

 

Because UnitedHealth had “failed to show that there is a genuine issue of fact about whether the Claims Department received notice of the AMA claim during the policy period,” Judge Schlitz granted the excess insurer’s motion for summary judgment.

 

Discussion

Judge Schlitz’s conclusion that an insurance notice requirement is not satisfied unless it can be shown that notice has been given to the specific department identified in the notice provision is a cautionary tale for practitioners in this area. In the press of day to day business, it would be far too easy for a notice to be sent to the right company but to a person, location or address other than the one specified in the policy. The clear lesson is that everyone involved in the process of providing notice of claim to needs to help to ensure that notice is sent not just to the correct insurer but also to the correct location – and to the correct location for each of the insurers in an insurance program. The case also underscores the value of having processes to require and obtain acknowledgement of receipt of notice of claim as well.

 

UnitedHealth’s apparent failure to provide the requisite notice of claim here is a little bit of a mystery. The claim was obviously very serious (or, at a minimum, it became very serious). It is clear from the Court’s opinion that the primary insurer on UnitedHealth’s insurance program was provided with the notice of claim required under its policy. It isn’t explained in the opinion how it came about the notice of claim had been sent to the prmary insurer (and apparentlyto other excess insurers as well) but not to the excess insurer involved in this motion. The court’s reference to the monthly loss runs is a reminder that UnitedHealth is a big, complex company that apparently became involved in a number of claims. The suggestion is that in the hubbub the notice of the AMA claim to this excess insurer somehow slipped through the cracks. Reading between the lines, there may also have been a confusion of or breakdown in responsibilities among the varaious process participants.

 

There is one aspect of this opinion that I find interesting. There is nothing in Judge Schlitz’s opinion to suggest that the excess insurer was prejudiced in any way by the absence of compliance with the policy’s notice provisions. At least as presented in the court’s opinion, it does not appear that the excess insurer argued that its interests had been prejudiced. The court was concerned only with the question whether or not the policyholder had satisfied the procedural requirements stated in the policy. There is no sense in the opinion of a consideration of a “no harm, no foul” point of view. .

 

The arguably harsh outcome of this dispute might be more comfortable if the analysis had been accompanied by some suggestion that UnitedHealth’s failure to satisfy the procedural requirements had somehow caused a problem for the excess insurer with reference to the AMA claim. Here’s my concern. Some  insurers try to enforce their policies’ notice requirements as if the implementation of the provions were a game of “Mother May I?” On some occasions, some insurers brandish supposed notice issues as if, as a result of the supposed notice defect, they have won the game because the policyholder failed to say “Mother May !?” D&O insurers are of course fully entitled to expect compliance with policy requirements. However, reasonable business considerations should temper the enforcement of the requirements.

 

Judge Schlitz commented that it was fair to strictly enforce the requirements of the notice provision against a large sophisticated company like UnitedHealth. Whether or not that is true, my concern is that the same analysis as he is applying to a big sophisticated company like UnitedHealth could also be applied to a company that isn’t as big or sophisticated.

 

In all fairness, however, it should be noted that isn’t a case where a notice of claim as such was sent to the wrong address or the wrong department. Notwithstanding UnitedHealth’s arguments, it looks as if for whatever reason, there really was not a notice of claim as such sent to any address or department. Without that, UnitedHealth was left to argue that various fragments of informatoin about the claim could be shown to have filtered through a complex pattern of interaction between the company and the excess insurer. That was aloways going to present some difficulties for UnitedHealth. The company was not in the best position it could have been in on these issues. 

 

As I said at the outset, this case is a cautionary tale for all of us working in this business. The lesson for all of us is to try to make sure that the notice of claim both goes to the specific address stated in the policy and that it goes to all of the insurers.

 

Ninth Circuit Reverses District Court Holding That E&O Insurance Policy Exclusion Precluded Coverage: On April 26, 2012, in a terse, unpublished four-page decision, a three judge panel of the Ninth Circuit reversed the district court’s dismissal of an insurance coverage action that Ticketmaster had filed against its error and omissions insurer. A copy of the Ninth Circuit’s opinion can be found here.

 

The errors and omissions insurance policy provided liability coverage for Ticketmaster for claims arising from the performance or the failure to perform professional services. The policy contained an exclusion, Exclusion E, specifying that the policy does not apply to any claim “based on or arising out of … any dispute involving fees, expenses or costs paid to or charged by the Insured.”

Ticketmaster was sued in a putative class action brought by ticketholders alleging that the company had made false representations regarding UPS delivery fees and order-processing charges for ticket events. Ticketmaster sought to have its E&O insurer defend it in the ticketholder claims. The insurer declined based on Exclusion E. Ticketmaster sued the insurer for breach of contract and bad faith. The district court granted the insurer’s motion for judgment on the pleading. Ticketmaster appealed.

 

In its April 26 opinion, the Ninth Circuit panel reversed the district court, holding that Exclusion E is “reasonably susceptible of at least two meanings, particularly in light of the Policy’s other 27 exclusions, and is thus ambiguous.” The appellate court identified the two possible meanings: “(i) Exclusion E may refer narrowly to a dispute regarding the monetary amount paid to or charged by Ticketmaster for uncontested services, or (ii) more generally, Exclusion E may refer to any dispute regarding a fee or charge for professional services, including a dispute regarding the relationship between services and the fees charged.”

 

The appellate court said that the E&O insurer had failed to carry its burden of showing that the second interpretation is the only reasonable one. The court noted that there are at least some allegations in the ticketholders’ action that do not involve the amount charged for uncontested services, such as the allegation that Ticketmaster performed no services in exchange for its order-processing charge. This allegation, the court said, did not dispute the amount charged but rather the relationship between any fee at all and the services provided. This dispute would be precluded by interpretation (ii) of Exclusion E but not interpretation (i).

 

The Ninth Circuit reversed the district court and reinstated the complaint, including Ticketmaster’s bad faith allegations.

 

FDIC Files Another Failed Bank Lawsuit and Two More Bank Fail: On April 26, 2013, the FDIC filed yet another lawsuit in its against the directors and officers of a failed bank. In its complaint (here), the FDIC, in its capacity as receiver of the failed Frontier Bank of Everett, Washington, has asserted claims for negligence, gross negligence and breach of fiduciary duty against twelve former directors and officers of the bank. The bank failed on April 20, 2010, so the FDIC filed its action just before the three-year statute of limitations expired.

 

The FDIC alleges that the defendants breached their duties to the bank by “causing the Bank to violate its own policies and prudent, safe and sound banking practices” in connection with the approval of at least eleven loans between March 2007 and April 2008. The FDIC sees to recover damages “in excess of $46 million.”  An April 26, 2013 Puget Sound Business Journal article regarding the FDIC’s new Frontier Bank lawsuit can be found here.

 

Not only did the FDIC file the lawsuit against the former Frontier Bank directors and officers, but the agency also took over as receiver of two more failed banks on Friday. The two banks are the Douglas County Bank of Douglasville, Georgia and the Parkway Bank of Lenior, North Carolina. Between January 1, 2013 and April 20, 2013, there were only five bank failures total,  but just in the last two weeks there have now been five more, for a total of ten so far during 2013. As I recently noted, though it has seemed as if the bank failure wave had just about played itself out, it now appears that there may yet be more bank failures yet to come.

 

With the failing of the latest lawsuit, the FDIC has now filed a total of 57 lawsuits against the former directors and officers of failed banks, including 13 so far this year alone. As I discussed here, it seems likely there will be more to come, as well.

 

Speakers’ Corner: On Tuesday, April 30, 2013, I will be participating in Advisen’s Quarterly D&O Claims Trends Webinar. In this free webinar, which will take place at 11:00 am EDT, I will be participating on a panel with Paul Ferrillo of the Weil Gotshal law firm, David Murray of AIG, and Jim Blinn of Advisen. The panel will discuss claims trends and developments during the first quarter of 2013. Registration information for the webinar can be found here.

 

The Wall Street Journal is reporting again on the alleged misuse of Rule 10b5-1 trading plans. In its latest article on the topic, the newspaper examines what an SEC spokesman called an “exotic permutation” on the use of trading plans – that is, outside directors’ use of trading plans to allow investment funds they own or manage to trade in company shares.

 

In a November 2012 article entitled “Executives’ Good Luck in Trading Own Stock” (here), the Journal took a look at the way corporate officers’ use of trading plans facilitated profitable trades in their company stock.   The newspaper’s analyzed thousands of trades by executives. Among other things, the newspaper found numerous instances where executives, trading in company shares pursuant to Rule 10b5-1 plans, managed to extract trading profits just before bad news sent share prices down or to capture gains with purchases executed just before unexpected good news.

 

In an April 24, 2013 article entitled “Directors Take Shelter in Trading Plans” (here) the Journal examined trades by outside directors pursuant to Rule 10b5-1 plans. The Journal found that directors’ use of the plans has jumped; the newspaper identified 2.210 nonexecutive directors who reported using the plans to sell stock since 2006. The Journal found that rather than use the plans to sell a fraction of their shares at regular intervals, “some directors use the plans to sell heavily in a short time.”

 

The Journal found that from 2006 through 2011, nearly a quarter of nonexecutive directors with trading plans sold more stock in one month under the plans than in the surrounding two years. Some used their plans “to unload all or the bulk of an investment fund’s holding in a company, in a spate of selling.

 

The article includes a detailed discussion of the share sales of a director of one specific company. The director had joined the company’s board when two funds managed by his private equity firm had invested in the company. Under a plan established in November 2011, one of the two funds sold 83% of its holdings in a series of trades during every trading day between January 3, 2011 and February 1, 2012. The trades during that period constituted 25% of the stock’s trading volume. Six days after the last trade, the company announced disappointing financial results and the company’s share price slumped. The article describes in detail the complaints of one of the company’s shareholders to the director and to company management about the trades. The article also reports the director’s explanation that the fund sold the shares in order to address a debt issue and that the private equity firm’s other fund had not sold any of its shares.

 

The use of trading plans by directors as a means to facilitate their investment funds’ trades in company shares was not really what the SEC had in mind when it promulgated the rule. An SEC spokesman quoted in the latest Journal article conceded that the Rule did not prohibit directors from using the plans to allow outside investment funds to trade shares, but added that the use of plans in this way also “wasn’t specifically contemplated.” The SEC spokesman described the use of plans in this way as an “exotic permutation.”

 

Insider trading has been an enforcement focus of the SEC and of the DoJ for some time now. So it came as no surprise after the initial Journal article late last year that the question of possible misuse of Rule 10b5-1 trading plans sparked interest with regulators. The SEC launched investigations in connection with trading activities at several of the companies mentioned in the prior Journal article.

 

The more recent Journal article notes that the plans “have drawn the attention of law enforcement” and reports that prosecutors have urged compliance executives “to be vigilant about trading by directors who also run investment funds.” Given the SEC”s interest in the examining the issues mentioned the prior Journal article, it seems likely that the SEC also will look into the use of trading plans described in the more recent article as well.

 

There is more than a small amount of irony in these concerns about Rule 10b5-1 plans. The Rule was established more than a decade ago to allow executives (whose wealth often is entirely locked up in company shares) to trade in the company’s stock without incurring possible liability under the securities laws.

 

There are in fact a number of cases in which courts have held that the inference of scienter that might otherwise arise from insider sales is rebutted when the sales were executed pursuant to Rule 10b5-1 trading plans. Refer here and here for a discussion of recent cases where defendants were able to rely on the Rule 10b5-1 trading plan in order to have the securities claims against them dismissed.

 

There is no doubt that these various allegations involving insider trading plans have put the plans in a negative light. However, as discussed here, a well-designed and well-executed plan can still provide substantial liability protection by allowing insiders to trade in their holdings of company stock without incurring securities liability exposure. Notwithstanding these recent developments, a well-designed Rule 10b5-1 plan remains an important part of securities litigation loss prevention.

 

There have been a number of law firm memos recently advocating the use of Rule 10b5-1 plans and providing points on proper implementation of the plans in light of the recent questions that have been raised about the plans. For example, the Covington & Burling law firm recent published a memo entitled “Rule 10b5-1 Trading Plans: Avoiding the Heat” (here). The Wilson Sonsini’s March 2013 memo entitled “Rule 10b5-1 Trading Plans: Considerations in Light of Increased Scrutiny” notes that “the aggressive use (or misuse) of Rule 10b5-1 trading plans is likely to become a significant area of focus for regulatory enforcement and securities lass action plaintiffs” and suggests steps companies can take to avoid problems.

 

Whistleblower information may be one of the SEC’s “most effective weapons in its new enforcement arsenal,” but the agency’s whistleblower program “faces challenges on many fronts,” according to an April 23, 2013 New York Times Dealbook article entitled “Hazy Future for Thriving S.E.C. Whistle-Blower Effort” (here). As evidence of the whistleblower program’s promise that article cites several “previously undisclosed” enforcement actions that whistleblower information have triggered or aided. Yet due to several potential obstacles and impediments, the future of the program may, according to one source cited in the article “hang in the balance right now.”

 

For its part, the agency says that it has “ramped up” its staffing and the program has “gained momentum.” As evidence of the value the program has already delivered, the article cites the agency’s investigation of Knight Capital. The SEC was already investigating problems the trading company was having following the company’s bungled installation of new trading software. The investigation had been narrow until a whistleblower came forward and “the agency was able to shift gears and expand the investigation.”

 

According to the article, with the help of a whistleblower, the agency’s investigation of the Oppenheimer’s investment firm’s alleged overstatement of the performance of a private equity fund resulted in a fine of nearly $3 million.

 

The article also details an enforcement action that resulted in the first whistleblower bounty payment under the Dodd Frank Act’s whistleblower provisions. According to the article, Dee Stone, an outside consultant to China Voice Holding Corp, received a whistleblower bounty of $46,000 (so far) for providing documents showing that the company was operating a Ponzi scheme. (Refer here for more about this award, which was the first and is so far the only award under the Dodd-Frank whistleblower bounty program). The identity of the whistleblower and the subject of her whistleblower report had not previously been disclosed.

 

But though the program has had its successes, the SEC has also encountered obstacles from companies. Some companies have “drafted policies compelling their staffs to report fraud internally,” while other companies require employees to “attest annually that they never witnessed any fraud, a certification that could be used to discredit employees who later blew the whistle.”

 

The article also notes that companies have been accused of retaliating against whistleblowers. The article cites the September 2012 complaint that James Nordgaard filed in the Southern District of New York against his employer, Paradigm Capital Management and related entities, as well as against its founder and President, in which Nordgaard alleged that his employer retaliated against him after he notified the employer that he had reported what he believed to be illegal activities to the SEC.

 

In his complaint, a copy of which can be found here, Nordgaard sought to recover damages for retaliation under the Dodd-Frank Act. Nordgaard alleged that after he made his report, he was stripped of trading duties and “constructively terminated.” Initially, the company sought to have the dispute submitted to arbitration. In December 2012, Nordgaard voluntarily withdrew his complaint.

 

Discussion

Even though the article highlights the successes that the whistleblower program has already produced, the article nevertheless also suggests that company efforts may undermine the program or limits its usefulness. It may be true that some companies may succeed in diverting would be whistleblowers to internal programs, but even that could still be useful as long as the whistleblower’s reports are not swept under the rug but are dealt with.

 

And while company retaliation could well deter whistleblowing, the specific example of company retaliation that the article notes suggests that retaliation could be as big of a problem for the retaliating company than for the employee, given the retaliation protection available to whistleblowers under the Dodd-Frank Act.

 

The fact is that during the first full fiscal year of the whistleblower’s operation, the SEC received 3,001 whistleblower reports (as discussed in the agency’s 2012 annual whistleblower report, a copy of which can be found here). And while that number may be, as an unnamed source in the article suggests, “somewhat exaggerated,” it is clear that the SEC is receiving a very substantial number of whistleblower reports – and that is despite the deterrent efforts of some companies noted in the article.

 

The agency has at this point made only a single whistleblower bounty award. As the agency makes further awards and as those awards attract publicity, would-be whistleblowers will likely be even further motivated to come forward. As a plaintiffs’ law firm noted in a press release earlier this week, whistleblower awards provide “a reason for taking a risk.” (And it should not be overlooked that the plaintiffs’ bar clearly sees the development of a whistleblower practice as a growth opportunity. The efforts of the plaintiffs’ bar may not by itself be sufficient to cancel out the efforts of companies to try to deter whistleblowers but it does at a minimum represent a countervailing force.)

 

My take is that though companies may be taking steps to avert whistleblower problems, the whistleblower program ultimately will prove, as the article suggests, to be “one of the most effective weapons in the new enforcement arsenal.”

 

As I have said previously on this blog, if 2012 was the year in which the Dodd-Frank whistleblower program finally got off the ground, 2013 will likely be the year when the program picks up serious momentum. It seems likely  that – notwithstanding the impediments noted in the Times article — we will not only see increased enforcement activity as a result of whistleblowers’ tips, but that we will see increased numbers of whistleblowers’ bounty awards, as well as the possibility of increased private civil litigation following in the wake of the enforcement actions.