In order to try to boost the number of companies going public, the recently enacted JOBS act provides for certain procedural and reporting advantages for “Emerging Growth Companies,” which are defined in the Act as companies within five years of their IPO and with revenues less than $1 billion. A number of companies planning IPOs are already taking advantage of the new provisions. But at the same time, those same companies are warning investors that their status as Emerging Growth Companies may itself be a risk of which investors should be aware.

 

As discussed at greater length here, the JOBS Act contains a number of IPO “on ramp” procedures designed to ease the process and burdens of the “going public process” for Emerging Growth Companies (EGCs). The “on ramp” advantages are intended to ease the going public process. For example, EGCs can elect to submit their IPO registration statement for SEC review on a confidential, nonpublic basis, although the registration statement must be publicly filed at least 21 days before the IPO roadshow.

 

The Act also provides for reduced disclosure and reporting burdens for EGCs for as long as five years after an IPO – as long as the company continues to meet the definitional requirements. For example, an EGC will not be subject to Section 404(b) of the Sarbanes Oxley Act requiring an outside auditor’s attestation report on the company’s internal controls. Similarly, an EGC would be exempt from the requirements under the Dodd-Frank Act to hold shareholder advisory votes on executive compensation and on golden parachutes.

 

Since the enactment of these provisions, a number of commentators have noted that while these JOBS Act provisions may serve the laudable goal of easing the IPO process, these provision also introduce risks for investors. Nor are these remarks just coming from sideline commentators. Indeed many of the most specific warnings are coming from the companies themselves.

 

In her May 15, 2012 CFO.com article entitled “A New Risk Factor: The JOBS Act” (here), Sarah Johnson reports that for many of the companies taking advantage of the JOBS Act IPO on-ramp provisions, the fact that the companies are relying in the JOBS Act “is itself a risk factor.” Her article notes that in recent days, at least 13 companies “have warned investors in their prospectuses filed with the Securities and Exchange Commission that the JOBS Act’s breaks on SEC rules could actually be a turnoff.” By way of example, she quotes Cimarron Software’s recently filed S-1, in which the company states that “we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make our common stock less attractive to investors.”

 

In a May 14, 2012 post on his CorporateCounsel.net blog entitled “JOBS Act: EGC Status as a Risk Factor” (here), Broc Romanek takes a detailed look at one of the recent IPO filings, the S-1 that LegalZoom filed in connection with its proposed initial public offering. He notes that right on the cover page of the filing, the company warns that “we are an ‘emerging growth company’ under the federal securities laws, and will be subject to reduced public company reporting requirements.” Among other things, the company notes in its filing that it will be taking advantage of the JOBS Act reporting exemptions as long as the company qualifies to do so, adding that “we cannot predict if investors will find our common stock less attractive because we rely on these exemptions.” The company further notes that “if some investors find our common stock less attractive as a result, there may be less active trading for our common stock and our stock price may be more volatile.”

 

These disclosures not only have the virtue of warning investors that the companies’ status as emerging growth companies may make their stock less attractive. The warnings may, according to one commentator quoted in the CFO.com article, provide "cheap insurance” that could help the company if it later runs into trouble. As the commentator noted, if the emerging growth company is later sued, the company can say “We warned you that there weren’t auditors looking independently at this.”

 

These emerging growth companies advisory statements may indeed represent good precautionary disclosure. But it is fair to ask whether the cautionary statements go quite far enough. It is one thing to say that the company’s reduced reporting requirements may make the company’s stock less attractive. What the companies don’t seem to be saying, at least not directly, is that the reduced reporting requirements could make their reported financial results less reliable. As a plaintiff’s lawyer quoted in the CFO.com article notes, the emerging growth companies’ precautionary disclosure may forewarn that their stock may not trade as high or as frequently as it might otherwise, but they are not saying that as a result of the reduced reporting requirements you “may get a nasty surprise” when the company no longer qualifies for the exemptions.

 

All of which says that while companies are now just trying to adjust to the newly enacted IPO process and reporting provisions, we will have to wait to see how all of this plays out in the securities litigation arena. For now, the companies taking advantage of the new rules do seem to be recognizing that while the new processes do present certain advantages, they do involve possibly increased risks as well.

 

The one thing that is certain is that because of the JOBS Act’s broad definition of “emerging growth companies,” a very larger percentage of companies going public will be eligible to take advantage of the new rules. Indeed, according to one report, of the 113 companies that went public in 2011, only 15 (or 13%) would not have qualified for the JOBS Act’s IPO on-ramp procedures.

 

In other words, the disclosure issues discussed above, and the related liability concerns, could be an issue for a significant number of companies. Indeed, if the JOBS Act achieves its fundamental goals, these considerations could be a concern for an increasingly larger number of companies.  

 

Delaware Seminar on Corporate and LLC Law: On Tuesday May 22, 2012, I will be participating in a panel the Delaware State Bar Association Corporate Law Section’s annual “Recent Developments in Delaware Corporate and Alternative Entity Law” seminar. The seminar will be co-chaired by Francis Pileggi of the   Eckert Seamans firm and also the author of the Delaware Corporate and Commercial Litigation Blog, and his law partner Kevin F. Brady and R. Montgomery Donaldson of the Montgomery McCracken Walker & Rhoads firm. Pileggi’s recent post on his blog about the event can be found here. 

 

The panel I will be participating in is entitled “Corporate Law Updates Via Blogs,” and my fellow panelists will include Doug Batey of the Stoel Rives law firm and the author of theLLC Law Monitor blog; University of Illinois Law Professor Christine Hurt, of  The Conglomerate blog; and Boston College Law Professor Brian Quinn, of  The M&A Law Prof blog. Batey’s recent blog post about our upcoming panel can be found here.

 

Our panel should afford the panelists an opportunity to reflect and comment upon the blogging process and experience. Along those lines, in an interesting May 18, 2012 post entitled “What Then is Blogging” (here),   Dick Cassin of the indispensable The FCPA Blog sets out some of his views and thoughts about blogs and blogging. (Thanks to Cassin for quoting one of my prior blog posts).

 

Looking for Life in All the Wrong Places?: A May 18, 2012 Wall Street Journal article entitled “Searching a Billion Planets for Life” (here) describes scientists’ efforts to write a recipe for “perfect planet”—that is, a place that is “not too cold, not too hot, not too toxic and chemically suitable for life as we know it” as a way to aid in the search for “potentially habitable alien worlds.”

 

The challenge for the scientists is that the process of trying to come up with the recipe leaves them “grappling with the nature of life itself.” Perhaps the most fundamental problem is that the analysis depends on presumptions “based on life as we know it” – that is, life on Earth.

 

The potential limitations of this Earth-biased analysis are revealed most dramatically just by looking at what has happened in recent years to our knowledge about life on Earth. Through a series of interesting discoveries, our awareness of the range of conditions in which life on Earth can thrive has expanded far beyond what was previously thought possible.

 

An interesting article in the May/June 2012 issue of The Economist’s Intelligent Life magazine entitled “Some Like it Very Hot” (here) takes a look at the scientific advances that have revealed the teeming existence of “hyper-resilient microbes,” organisms that can survive “levels of heat, cold, pressure, radiation and salt or acid concentrations that previously would have been thought fatal to all living things.” These previously unknown organisms, now known as extremophiles, have been found deep beneath the sea floor; in the depths of Mexican caverns; in the core of nuclear reactors; in hydrothermal vents on the sea bed; and are constantly being discovered in ever more unlikely and seemingly inhospitable environments.

 

Among many other things, these discoveries show that “life can sustain itself in many more environments than was previously thought possible.” This realization not only has enormous implications for the study of life on Earth; it has also given new life to the “idea that life is dispersed throughout the universe and is disseminated on meteorites or asteroids.” Or to put it another way, “the bandwidth of survivable environments – and therefore, forms of life, has broadened enormously.”

 

The implication for scientists hoping to increase their chances of finding life beyond Earth by narrowing their search only to the “perfect planets,” may be that by narrowing their search, they may actually diminish their chances of finding outside our planet. But on the positive side, the likelihood that life outside of earth might exist and someday might actually be discovered both seem to have increased significantly.

 

Personally, I find all of this quite fascinating and even exciting. The possibility that life in the universe is not rare but could actually be quite common and even widely dispersed represents an entirely new way of looking at things. Instead of the Earth as a lone life-bearing vessel whirling through an empty, heartless void, it could instead be one of countless places where life is thriving. Of course, the possibility that life elsewhere might be merely microbial might not satisfy the most febrile science fiction fantasies. It would of course be much more exciting if there seemed to be a greater likelihood of discovery of intelligent life beyond earth. But it may be too much to hope for, to expect to find intelligent life beyond earth. After all, think of how hard it is to find intelligent life on our own planet.  

 

In Case You Missed It: For the second weekend in a row, a major European soccer title has been determined in a last-minute come from behind victory. Last Sunday, it was Manchester City scoring two goals in stoppage time in their final game of the season to capture the English Premier League crown. This Saturday, Chelsea, playing against Bayern Munich on the German team’s home field, won the UEFA Champions League club team title in almost equally dramatic fashion, winning in a penalty kick shootout.

 

Bayern Munich had many chances to put the game away, and seemingly had the game won when they finally scored on a Thomas Müeller header in the 82nd minute. But then with just two minutes left in regulation, on Chelsea’s first corner kick of the game, Didier Drogba scored on a header to tie the game. As regulation time expired the game went into extra time (a thirty minute overtime period).

 

Drogba’s fine goal to tie the game looked like it might have been naught when early in extra time he committed a foul by tripping Franck Ribèry in the penalty area. It seemed like another golden opportunity for Bayern Munich to put the game away, but Chelsea’s goalie, Petr ČechArjen Robben’s penalty kick. The 30-minute period ended with the teams still tied, setting up a penalty kick shootout. , stopped

 

Bayern Munich once again appeared to have the advantage as its goalie, Manuel Neuer, stopped the first Chelsea penalty kick from Juan Mata. After each team had attempted three penalty kicks, Bayern had made all three of its attempts, while Chelsea had only made two. Bayern substitute, Ivica Olic  then missed his team’s fourth shot while Ashley Cole made the next shot for Chelsea, bringing the two teams even. On Bayern Munich’s fifth and final shot, Bastian Schweinsteiger , who looked as if taking the penalty kick was about the last thing in the world he wanted to do, hit the post. Drogba, looking calm and confident, smashed his kick into the corner of the net, securing Chelsea’s improbable victory. The game-winner might be the 34-yearold Drogba’s last act for Chelsea, as his contract with the team expires this summer.

 

It was a great game, although the Bayern Munich fans are not the only ones unhappy about the outcome. Tottenham Hotspurs, who finished fourth in the English Premier League and therefore otherwise qualified for the UEFA Champtions League competition, were dispossessed of the spot by Chelsea’s win. Chelsea, which didn’t otherwise qualify for the Champions league (since they finished sixth in the Premier League), secured an automatic spot in next year’s Champions League competition with their win on Saturday. Since only four teams from each participating country can compete, that meant that Chelsea’s win forced Tottenham out of its spot.

 

With all of this great end of season soccer just completed, it is even more exciting to look forward to the Euro 2012 national team championship competition, which kicks off on June 8, 2012 in Poland and Ukraine. 

 

In the wake of JP Morgan Chase’s startling news last week of its $2 billion trading loss, and of the equaling startling statements of Jamie DImon, the bank’s CEO, that the losing trades were, among other things, “flawed, complex, poorly reviewed, poorly executed, and poorly monitored,” there has been speculation whether these disclosures would lead to litigation. In particular, commentators have asked whether Dimon’s candid statements would hurt the company in any litigation that might arise.

 

Well, it looks like we will be finding out. On May 14, 2012, plaintiffs filed a securities class action in the Southern District of New York, against the bank; Dimon; Ina Drew, the bank’s former Chief Investment Officer: and Douglas Bronstein, the bank’s chief financial officer. A copy of the complaint can be found here.

 

According to the plaintiffs’’ lawyers’ May 14, 2012 press release (here), the complaint alleges that during the class period of April 13, 2012 through May 11, 2012, the defendants issued “materially false and misleading statements regarding certain securities trading by the Company’s Chief Investment Office (“CIO”). Specifically, Defendants misrepresented and/or failed to disclose that the CIO had engaged in extremely risky and speculative trades that exposed JPMorgan to significant losses.” The complaint specifically references the defendants’ reassuring statements made between the time the rumors about the trading activity first surfaced in April and the time of the disclosures of the trading losses, and blockbuster admissions about the trades.

 

The initial complaint is just 18 pages. Although the complaint quotes extensively from Dimon’s statements in a May 10, 2012 conference call, it does not refer to many other highly publicized features involved with the trading losses, including for example, the April rumors of trading activities by a JP Morgan trader labeled the “London whale,” whose trades had roiled the derivatives market (the complaint refers to the trades, just not to the “whale,” at least not by that name) nor Dimon’s statements to Meet the Press aired on Sunday May 13, 2012, that the bank had been “sloppy” and “stupid” and that he had been “dead wrong” when he characterized questions about the derivatives trades as a “tempest in a teapot.”

 

The complaint’s scienter allegations do not allege any motivations for alleged misrepresentations made during the relatively short class period. There are no allegations that any of the defendants’ traded on basis of allegations or that the defendants otherwise personally benefitted from the misrepresentations. The complaint does allege that the defendants did not believe their earlier statements about the bank’s derivatives trading activities at the time the statements were made. 

 

To be sure, it is not uncommon for an initial securities class action complaint to be skeletal, with more detailed allegations added in subsequent amended pleadings after lead counsel has been selected and the cases consolidated. Along those lines, there may well be other complaints filed on behalf of other prospective class representatives that may contain different or additional allegations. Subsequent complaints or amended complaints may well be more detailed. These complaints may also draw on subsequent news reports that JPMorgan’s senior management allegedly had disregarded “red flags” regarding the bank’s trading activities.

 

Even if they are able to add additional details, however, plaintiffs seeking to plead this case will be faced with the challenge of attempting to present scienter allegations sufficient to overcome the initial pleading hurdles. The defendants will argue that it is not enough for plaintiffs to rely on the magnitude of the losses or even on the fact that the losses resulted from a trading strategy that Dimon has now publicly acknowledges was flawed. In attempting to show that the early reassurances are not merely misleading but are actionable, the plaintiffs may find that they must allege more than the subsequent admissions about the trading activities.

 

How the securities class action plaintiffs will proceed and how they will fare remains to be seen. But in the meantime, there are now press reports circulating that the Department of Justice has “opened an inquiry” regarding the bank’s trading losses. The news of the DoJ inquiry follows prior reports that the SEC had opened a review of the developments. President Obama, among many others, has seized upon the bank’s trading losses as evidence of the need for greater bank regulation, including in particular the so-called “Volker Rule.”  Questions are also being raised whether the bank will or should seek to “claw back” compensation from the three trades who were released following the disclosure of the losses.

 

The fallout from the trading losses will continue to roil the markets and the media for some time to come, and could hound both Dimon and J.P. Morgan for some time as well. In the meantime, the private securities class action lawsuit will unfold, as these cases do, in the fullness of time. I will say that as interesting as it is that a securities class action complaint has been filed, it will be more interesting to see the plaintiffs’ allegations as they appear in the consolidated, amended complaint that ultimately will be filed.

 

A company’s D&O insurance policy provides liability protection for the company’s individual directors and officers, but only for their actions undertaken in their capacities as directors and officers. It does not protect them when they are acting in a personal capacity. So, when a company’s CEO signs a loan guaranty for the company, is he acting in an official or personal capacity, and will the D&O insurance policy provide protection for liability under the guaranty? Those were the questions addressed in a May 14, 2012 decision of a three-judge panel of the Court of Appeals of the State of Washington. A copy of the opinion can be found here.

 

Background

In March 2008, S-J Management LLC (SJM) obtained a $3.5 million line of credit from Commerce Bank. Michael Sauter, SJM’s CEO and manager, signed the loan agreement and promissory note in his official capacity on behalf of SJM. In addition Sauter provided Commerce Bank a guaranty, which he signed as “Michael J. Sauter” and which was secured by seven deeds of trust on real property owned by Sauter and his wife.

 

In May 2009, SJM’s line of credit matured and SJM failed to pay its indebtedness. Commerce Bank demanded that Sauter pay in full under his “personal guaranty of indebtedness” SJM’s $2.8 million obligation. Sauter in turn demanded that SJM indemnify him for the amount he was obligated to pay, to which SJM’s members (of which Sauter was one) agreed. However, SJM was financially unable to indemnify Sauter. After Commerce Bank threatened that Sauter’s failure to cure the default could result in the sale of the six real properties securing the guaranty, SJM’s counsel tendered the bank’s demand to SJM’s D&O insurer.

 

SJM’s insurer denied coverage with respect to Sauter’s obligation, and Sauter filed an action against the insurer seeking damages and a judicial declaration of coverage. The parties filed cross motions for summary judgment. The trial court denied Sauter’s motion but granted the insurer’s motion, holding that there was no coverage because no act by Sauter constituted a “Wrongful Act” under the policy and Sauter suffered no “Loss” as defined by the Policy. Sauter appealed.

 

The Appellate Court’s May 14, 2012 Opinion

In an opinion written for the three-judge panel by Judge Stephen J.  Dwyer and applying Washington law, the intermediate appellate court affirmed the trial court’s ruling. The court noted that the policy provides that an act by an “Insured Person” constitutes a “Wrongful Act” only when that person commits the act “while acting in [his or her] capacity as…such on behalf of the Insured Organization.” An “Insured Person” acts “in his capacity as …such on behalf of the Insured Organization” when that person commits the act in his or her official capacity as a “director, officer, general partner, manager or equivalent executive” of the insured company.

 

In recognition of this language, the court said that because the policy “explicitly provides coverage for the personal liability of the corporate officer incurred for acts performed in his or her capacity as such,” the policy “does not insure against losses incurred where the officer acts in his or her personal capacity.”

 

The court said that “the fact that Sauter is an officer of SJM is not dispositive of the question presented,” which is — in what capacity did Sauter sign the guaranty, his capacity as an officer or his personal capacity? The Court noted that “a guaranty executed by a corporate officer that secures the indebtedness of the corporation is not executed in the officers’ official capacity.” Indeed, the execution of the guaranty in an official capacity “would result in the corporation itself guaranteeing its own indebtedness, thus negating the very purpose of the guaranty.”

 

Because Sauter was acting in his personal capacity when he signed the guaranty, Sauter committed no “Wrongful Act” as defined in SJM’s D&O insurance policy, and thus the court concluded that the policy does not provide coverage for Sauter’s financial obligation to Commerce Bank.

 

The Court went on to note in addition that any purported “Loss” suffered by Sauter did not result from a “Claim” made against Sauter for a “Wrongful Act.” Rather, the court noted, “Sauter incurred the obligation to pay SJM’s indebtedness by executing the guaranty – not by failing to satisfy his obligation pursuant thereto.” In other words, the court said, “his obligation to Commerce Bank was not the result of Commerce Bank’s demand on the guaranty; instead his obligation was the result of the guaranty itself.” Accordingly, because his obligation to pay was the result of his voluntary undertaking, “it is not a ‘Loss resulting from any Claim … for a Wrongful Act.”

 

Discussion

D&O insurance policies protect individual directors and officers. But that protection does not extend to everything those individuals might do. Rather, the protection only extends to their actions undertaken in their capacities as directors and officers, not to actions undertaking in the personal capacities.

 

There principles are easy to state, but the lines of demarcation between actions undertaken in an official capacity and actions undertaken in a personal capacity may not always be clear. This case illustrates how the lines can sometimes be difficult to discern. Here, it was SJM that wanted to borrow the money, and Sauter was clearly motivated by a desire to facilitate SJM’s borrowing. What matters though is not his motivations but his actions. When he signed the loan agreement and the promissory note, he was clearly acting in his official capacity. But he separately signed a guaranty. Sauter’s guaranty was designed to obligate Sauter not the corporation, and his undertaking was clearly a separate, personal undertaken, as evidence by the fact that the guaranty was secured by deeds of trust on property owned by Sauter and his wife.

 

There is a further reason why Sauter’s guaranty should not be the responsibility of the insurance company. One cannot undertake an obligation to pay, default on that obligation, and send the bill to the insurance company. For that reason, many courts have held that as a matter of public policy repayment of a contractual obligation does not represent a Loss under a D&O insurance policy. As discussed here, many D&O policies incorporate express contractual liability exclusions.

 

Coverage disputes arising from the questions of whether or not an individual was or was not actin g in an insured capacity are occur frequently, particularly in connection with smaller or closely held corporations, when an individual’s roles may overlap or run together. It may sometimes be very difficult, for instance, in the context of a closely held company to distinguish when an individual is acting as an investor or shareholder and when the individual is acting as a director or officer.

 

Indeed, in many instances, individuals may have been acting in dual capacities or multiple capacities, which can make questions concerning coverage for related claims particularly challenging. One critical coverage issue that is sometimes overlooked in the dual capacity context is that to trigger coverage under most policies, an individual need only have been acting in an insured capacity – most policies do not require that the individual have been acting “solely” in an insured capacity. The problem then of course, if the individual is insured only to the extent he or she was acting in an insured capacity, is figuring out the extent of coverage. The fact that these kinds of disputes tend to be very fact-specific does not make them any easier to resolve.

 

Similar questions can also arise when a director or officer is also acting a director or officer of more than one entity or organization — for example, where an individual is serving at the request of a private equity or venture capital firm on the board of a portfolio company. These concerns are among the many issues that may arise as a result of the interplay between the investment firm’s insurance and the portfolio company’s insurance, as discussed here.  

 

Many thanks to Aidan McCormick of DLA Piper for sending me a copy of the decision. DLA Piper represented the D&O insurer in this case.

 

Among the features of the recently enacted JOBS Act that has attracted the most attention are the legislation’s provisions for “crowdfunding.” Under these provisions, a company is permitted to raise up to $1 million during any 12-month period through an SEC-registered crowdfunding portal. While these provisions have attracted a great deal of discussion and even controversy, a more basic question is – who will actually be taking advantage of this new fundraising procedure?

 

A common assumption about the new crowdfunding procedure is that it will be most beneficial to start-up companies. But at least according to a May 9, 2012 CFO.com article (here), due to the procedural burdens and costs associated with the JOBS Act’s crowdfunding provisions, crowdfunding is unlikely to be an attractive alternative for start-up companies.

 

According to the article, the crowdfunding provisions in the JOBS Act may be “too complex and onerous” and “not very cost-effective“  for an early-stage company. Among other things, entrepreneurs launching a new venture “may lack the financial acumen and robust business plans they’ll need to comply with the JOBS Act” and they also “may not have the cash to hire the accountants and lawyers they will need to navigate the law.” 

 

Instead, the companies likeliest to be using crowdfunding will be “more mature firms” that “have the experience of searching for sources of capital” and that are “able to show, based on financial information, performance metrics and forecasts, that they are heading in the right direction.”  Among other things, the crowdfunding process will require a certain amount of rigor, if for no other reason than the company using the process will have to provide financial statements.

 

The financial statement requirements will impose a cost-benefit analysis on companies considering a crowdfunding financing, due to the Act’s sliding scale requirements. Companies raising up to $100,000 need provide only a financial statement signed by the company’s directors. But companies raising between $100,000 and $500,000 must provide financials reviewed by a CPA. And for companies raising between $500,000 and $1 million, audited financials must be provided. Companies will have to decide whether their financing requirements justify the expense of having their financials reviewed or audited. In addition, the Internet platforms through the crowdfunding offerings will be conducted will also be charging fees, which will add to the cost.

 

As I have previously noted (refer here), the JOBS Act’s crowdfunding features also expressly include liability provisions. The potential liability exposures mean that issuers trying to raise money through a crowdfunding offering “will probably need to get a lawyer involved,” which, as a commentator quote in the article notes, is “not ever cheap.”

 

There is also the possibility that the SEC will add even greater burdens and expense when it releases its crowdfunding rules in January 2013. Among other things, the SEC could add additional burdens in the way that it regulates the funding portals. The SEC has also no secret of its concerns about the possibility of scam artists using crowdfunding to try to con investors, as a result of which, as a commentator quote in the article notes, the SEC might “layer on more regulation.” For example, the SEC might require disclosure after the crowdfunding offering, which “could make crowdfunding potentially cost prohibitive.”

 

The Venue That Suits You Best: Where is the best place in the world to file a lawsuit? Well that depends on the kind of lawsuit you want to file. Want to sue for libel? Then you want to file in the U.K. Thinking of suing for patent infringement? Then you should file in Germany. All of this is according to the “best and worst places to sue” atlas published on May 10, 2012 in BusinessWeek, and which can be found here.

 

More Thoughts on Asia: As I discussed in a blog post summing up my observations of my recent Asia trip, there is an incredible amount going on now in Asia. The present and future business opportunities in Asia are enormous – so much so that I really regretted during my trip that my children were not there to see what I was seeing.

 

It is in this context that I note an article that appeared on May 11, 2012 Wall Street Journal. The article, entitled “P&G Unit Bids Goodbye to Cincinnati, Hello to Asia” (here), describes how Proctor & Gamble is moving its cosmetics and personal-care unit from Cincinnati to Singapore. The company is making the move based on its “decision to base the business in the fast-growing Asia beauty market,” as part of a larger plan to move employees and manufacturing facilities closer to its key customer bases. The article goes on to note that the Asia-Pacific region already accounts for half of the world’s market for skin care, and is also by far the fastest growing region.

 

The article includes a sidebar identifying a number of similar moves developed-world companies have made recently. For example, GE has moved its X-ray unit from Wisconsin to Beijing; Halliburton has set up a separate headquarters in Dubai; DSM Engineering Plastics has moved its headquarters from the Netherlands to Singapore: and Rolls-Royce has moved its global marine headquarters to Singapore from London. (As I understand it, AON’s recent decision to move its headquarters from Chicago to London is in part explainable as part of this same phenomenon, because so much of its business and growth is outside the U.S.)

 

Maybe I am giving too much significance to these developments I am overly focused on Asia so soon after my return home from Asia.  Even allowing for that possibility, these companies’ moves still seem significant. These companies are re-orienting themselves because the world is re-orienting.   It seems pretty clear to me that the path to future business success is going to run through Asia. Those of us doing business in the U.S. and in Europe now need to prepare for the fact that our clients, or at least those who are likeliest to succeed, are going to be positioning themselves to participate in Asian opportunities. Provides of services will need to be prepared to adjust as the companies reposition.

 

China in Ten Words: Another observation from my Asia trip is how vast, complex and enigmatic China is. Since returning home, I have read several books about China and its history, trying to get a better sense of the country and the changes it has been through in recent years. The country is so large and the changes it has been through have been so momentous that it seems nearly impossible to briefly summarize it all. For that reason, the slim, readable book China in Ten Words by Yu Hua, a Chinese author who lives in Beijing, is so interesting and impressive.

 

Yu’s book is divided into ten short chapters, each of which has a single word as a theme. The ten chapters are: people; leaders; reading; writing; Lu Xun (a pre-revolutionary Chinese author); revolution; disparity; grassroots; copycat; and bamboozle. Yu took this thematic approach because, as he says, if he tried to capture everything about China, the result would be a book so long that no one could ever read it. By limiting himself to just ten words, he gives us “ten pairs of eyes” to scan the contemporary Chinese scene.

 

Yu’s method has a very specific purpose, which he explains in his introduction:

 

“The arrow hits the target, leaving the string,” Dante wrote, and by inverting cause and effect he impresses on us how quickly change can happen. In China’s breathtaking changes during the past thirty years we likewise find a pattern of development where the relationship between cause and effect is turned in its head. Practically every day we find ourselves surrounded by consequences, but seldom do we trace those outcomes back to their roots. The result is that conflicts and problems –which have sprouted everywhere like weeds during these past decades – are concealed amid the complacency generated by our rapid economic advances. My task here is to reverse normal procedure; to start from the effects that seem so glorious and search for their causes, whatever discomfort that may entail.

 

In tracing the current outcomes back to their roots, Yu tells the story of contemporary China from the perspective of his own personal experiences. What quickly becomes apparent is not only how much Yu has seen and experienced in his life, but how much everyone in China older than, say, forty or so, has seen and experienced. The dramatic and appalling details of the scenes he witnessed during the Great Leap Forward and the Cultural Revolution, which took place during his childhood and adolescence, provide an almost incredible backdrop to China’s current prosperity and economic growth.  As Yu says, “in this quest to follow things back to their source, we cannot help but stumble on one misfortune after another.”

 

The unexpected and interesting message that emerges from Yu’s account is the directness of the connection between the events during the Great Leap Forward and the Cultural Revolution and contemporary circumstances. Yu finds parallels between the excesses of those earlier eras and many of the excesses of modern China. In his chapter titled “Revolution,” he shows how the propaganda deceptions of the Great Leap Forward era and the revolutionary violence of the Cultural Revolution era continue to shape behavior and events.

 

The consequences for China emerge Yu’s book progresses; his final four chapters – disparity, grassroots, copycat and bamboozle – portray a country beset with “moral bankruptcy and confusion of right and wrong.” For example, in discussing the “copycat” phenomenon – whereby, as a result of an engrained revolutionary era ethos, counterfeiting and infringement are accepted as part of the “anarchist spirit” – Yu characterizes the trend as “a sign of something awry in China’s social tissue.”

 

In the same vein, in the book’s final chapter, Yu explains how the word “bamboozle” has come to gain such broad acceptance in modern China, as its particular usage “throws a cloak of respectability over deception and manufactured rumor.” Yu describes a society where the people routinely bamboozle the government and the government routinely bamboozles the people  Yu recounts several different tales illustrating this process in action, and then comments that “there is really no end to these stories of fraud and chicanery, for ‘bamboozle’ has already insinuated itself into every aspect of our lives.”

 

Yu concludes that “the rapid rise in popularity of the word ‘bamboozle,’ like that of ‘copycat,’ demonstrates to me a breakdown of social morality and a confusion in the value system in China today,” which he says is “an aftereffect of our uneven development these past thirty years.” Yu ends his book with a personal anecdote showing how the attempt to bamboozle can backfire. (Yu recounts how as a child he faked a stomachache to get out of doing chores and wound up getting his appendix removed.) Yu doesn’t expressly connect the link between his personal experiences and China, but the implicit message seems to be that China could wind up as the victim of its own bamboozlement.

 

Yu writes simply and clearly, and his many anecdotes humorously illustrate his themes. Using ten words, Yu manages to provide an interesting and though-provoking picture of contemporary China. In the portrait he paints, China is a troubled giant still struggling to recover from the painful events of the country’s early history.

 

One of the critical issues in putting together a D&O insurance program is the question of how to structure the insurance. Among the more complex issues is how to divide the program between “traditional” D&O insurance coverage and Excess Side A DIC insurance (which in effect provides catastrophic protection for individual directors and officers in certain defined circumstances). A more basic issue is the question of how to “layer” the program between primary and excess insurers, and how large each of these layers should be in the overall program.

 

The question of how to layer a D&O insurance program is certainly not new, but it remains a vital question and even a source of continuing scrutiny and debate. The latest example of how topical these issues are appeared in a May 8, 2012 post in Alison Frankel’s On the Case blog (here). Within  the context of a post in which Frankel discusses the overall importance of D&O insurance in securities suit settlements, Frankel quotes Steve Toll of the Cohen, Milstein, Sellers & Toll law firm. Toll has some harsh words to say for the way in which companies structure their D&O insurance.

 

Among other things, Toll objects to the fact that over the last decade insurers have splintered their D&O insurance into multiple layers, which in the event of a claim means that plaintiffs’ lawyers are often negotiating with multiple insurance company representatives. In Toll’s eyes, the problem with this arrangement is that “at every step, every carrier puts up a roadblock,” which he says “dramatically affects the resolution of these cases. In almost every one, it’s the same fight.”

 

Toll is one of the country’s leading plaintiff’s securities attorneys. I understand that his comments are based on extensive experience and that his frustration about the settlements is real. However, with all due respect for Toll, I think it is fair to note that it is hardly a concern of the parties to the insurance contract(s) that the plaintiffs or the plaintiffs’ attorneys don’t like the way the insurance is structured. D&O insurance is not there to make claimants or their attorneys happy nor is it intended to be a reserve pool on which claimants or their attorneys get to draw; it is there to protect the company’s directors and officers.

 

It could be argued that it is to the long term benefit of both companies and their insurers that there is a certain amount of friction for plaintiffs and their attorneys to be able to get at the insurance. It ensures that loss costs are contained, which in turn should help to keep insurance costs down.

 

Indeed, at least one leading defense attorney has recommended that D&O insurance should be arranged in tiers, for that very reason. In his venerable article entitled “The Veil of Tiers: Shareholder Lawsuits and Strategic Insurance Layers” (here), first published way back in 1997, Boris Feldman of the Wilson Sonsini law firm argued that “the ‘strategic tiering’ of directors’ and officers’ (D&O) insurance is a useful consideration in designing an effective risk management program.” Feldman argued in favor of arranging D&O insurance program in multiple layers, asserting that “Each separate layer of insurance constitutes a firebreak. It is extremely difficult, in ordinary cases, for plaintiffs to jump from layer to layer in funding a settlement – especially early in the litigation.” That is, what the plaintiffs’ lawyer is complaining about is the very thing that the defense attorney is recommending.

 

Alas, there is a lot more to the question of how to structure D&O insurance that just splitting the program up in to a bunch of layers to the everlasting frustration of plaintiffs’ lawyers. Even Feldman acknowledges in his article that “there is no magic formula as to the right amount or structure of a D&O portfolio.” He also says that if there are too many layers “you may expend substantial energy trying to keep your insurance house in order during a lawsuit” and “should you find yourself in a situation where you really need all of that insurance to settle a troublesome claim, it will be harder to get carriers to participate as you go higher up the chain.” In other words, the issue of too many insurers and too many insurers’ representatives in the settlement room can be a problem for policyholders and for defense counsel as well as for plaintiffs’ lawyers.

 

More recently, an entirely different perspective on the layering of D&O insurance has emerged. In his April 2012 paper “How Collective Settlements Camouflage the Costs of Shareholder Lawsuits” (which can be found here, and which I previously reviewed here – and the author’s comments on my review can be found here), Fordham Law School Professor Richard Squire raises an entirely different set of objections to the layering of D&O Insurance.

 

Professor Squire contends that insurers in the primary layers and lower level excess layers are often compelled to contribute toward settlement when the settlement demand (or more accurately, the settlement opportunity) exceeds their layer. This compulsion, Squire notes, is often effectively given legal force through a rarely identified but nonetheless very real “duty to contribute.” The compulsion results in a “cramdown” effect, where the upper layer excess insurers and the policyholder pressure the primary insurer and lower level excess insurers to settle.  These forces lead to a number of ills, including “plaintiff overcompensation at insurer expense”; overpriced liability insurance; and lawsuits of doubtful merit.

 

That is, Squire contends that as a result of the pressures that the insurance layering brings about, plaintiffs (and, presumably their lawyers) are “overcompensated.” I suspect that somehow Steve Toll might dissent from this perspective, or from any contention that his clients or he are overcompensated. Toll’s comments certainly don’t evince any awareness of a cramdown effect.

 

In my view, there is no single perspective that explains the way that the layering of D&O insurance will affect the settlement dynamic in every case. In cases involving particularly egregious facts, the layering is going to be irrelevant. (For example, the entire Lehman Brothers D&O insurance tower was always going to be toast, regardless of how it was layered). And in weaker cases, layering could have the firewall effect that Feldman described in his article, which given the weakness of the case involved is a good thing. In most other cases, the impact will be complicated and will vary according to the circumstances, including in particular how quickly defense expenses are accumulating and how likely it is that future defense expenses will burn through several of the lower layers.

 

What is important to understand is why D&O insurance is layered in the first place. The reason that D&O insurance programs are layered is that no D&O insurer could sustain the concentration of risk that would be involved with exposing outsized amounts of capital to any single large corporate exposure. As a result, the insurance needs of most buyers of D&O insurance (particularly among public companies) exceed the insuring capacity of any one carrier – and usually, the insurance capacity of several carriers is required in order to put together a program large enough to meet the insurance needs of most buyers.

 

In general, most buyers would probably prefer fewer, larger layers in the program. However, it is not always feasible to obtain larger layers, and as a result in most cases the participation of multiple carriers will be required in order to complete most buyers’ programs.

 

There might be ways to avoid the layered insurance structure. One possibility would be to arrange the D&O insurance in a quota share program. In a quota share program, the various carrier participants’ interests are arranged vertically, rather than horizontally. Under this arrangement, each carrier would share ratably in each dollar of loss costs, so the carriers’ interests in trying to save loss costs would be aligned in a way that would eliminate many of the conflicts the various commentators have noted.

 

The shortcoming of the quota share approach is that it would be very difficult for all of the participating insurers to cede control to a single decision maker. In the absence of a single point of control, the claims process could be reduced to chaos. The other thing about quota share D&O insurance is that people have been talking about it for years, yet it has never gone anywhere. As a practical matter, at least as things currently stand, quota share insurance is not an available alternative to the current customary layering of D&O insurance.

 

If D&O insurance layering is an inevitable aspect of most D&O insurance programs, at least as things currently stand, the question then is how can the problems the various commentators have identified be reduced? I have no comprehensive solutions, but I do have a few suggestions of ways some of the problems might be reduced:

 

1. Keep the Excess Carriers in the Loop: Problems often arise when the excess carriers are advised only at the eleventh hour that there is a settlement demand that pierces their layer or that the defense expenses are about to exhaust the underlying layers. If the excess carriers are provided complete information as the claims develop, they are less likely to resist requests for quick action based on lack of information.

2. Keep Track of Difficult Players: I have long felt that as an industry we don’t do nearly enough to hold carriers accountable over time for recalcitrant behavior. I think that over the long haul, everyone would benefit if there were more of a league table of claims responsiveness. If carriers knew that their claims reputations truly depended on their responsiveness, there would be greater disincentives against foot-dragging and other undesirable behavior.

3. Horses for Courses: This point is really a corollary of the prior point. That is, when the D&O insurance program is being structured at the outset, a great deal of care should be taken to give precedence to the carriers that have consistently demonstrated themselves to be responsive players.

4. The Broker Has a Role to Play: One way to try to keep the claims process on track and settlement efforts moving forward is to enlist the assistance of the broker that placed the coverage, at least to the extent that the broker has claims resources sufficiently knowledgeable and experienced to be able to participate meaningfully in the claims process and to be able to act as a claims advocate for the policyholder. The broker can also serve as a reminder to the various carriers involved of points 2 and 3 above.

 

There are probably a lot more points that might be made here, and I strongly urge readers who have thoughts along those lines to weigh in here by adding their thoughts using the comment feature on this blog.

 

The final point I want to make is that all of this underscores the fact that the process of putting together an appropriate D&O insurance program is an art not a science, and it requires not only a great deal of technical knowledge, but it also requires a broad perspective on the claims process and on the various carriers’ track records in that process. All of which is another way of saying that perhaps the most important step in putting together an appropriate D&O insurance program is making sure that a knowledgeable and experienced broker has been enlisted to guide the process.

 

This Could Get Interesting: Readers of this blog are well aware of the rash of securities litigation involving U.S.-listed Chinese companies that arose in the last couple of years. Securities regulators have also gotten interested in some of the revelations involving Chinese companies. A significant challenge that faces both private litigants and the U.S. regulators is the difficulty of investigating and conducting discovery involving companies that have their principal places of operation in China.

 

Along those lines, the SEC has now taken an aggressive move in its efforts to try to investigate alleged accounting issues involving Longtop Financial. The SEC had attempted to subpoena Longtop’s auditor, Shanghai-based Deloitte Touche Tomahtsu, in an attempt to obtain the audit firm’ audit work papers in connection with the firm’s audit of Longtop. The audit firm has resisted producing the work papers, asserting that production of the work papers would violate Chinese law.

 

On May 9, 2012, the SEC instituted an administrative proceeding against the audit firm. A copy of the SEC’s order instituting the administrative proceedings can be found here. The SEC’s May 9, 2012 press release about the action can be found here. The firm is charged with violating the Sarbanes-Oxley Act, which requires foreign public accounting firms to provide audit work papers concerning U.S. issuers to the SEC upon request. This is the first time the SEC has brought an enforcement action against a foreign audit firm for failing to comply with a request. The administrative proceeding will be assigned to an Administrative Law Judge at the agency. The judge would determine the appropriate remedial sanctions if the judge finds in favor of the SEC staff.

 

As reflected in Ross Todd’s May 9, 2012 Am Law Litigation Daily article about the SEC’s action (here), the SEC’s latest action follows extensive procedural efforts by the agency to try to obtain the work papers. Todd also reports that efforts between regulators in the U.S. and China may have resulted in the development of some type of compromise that may break the impasse.

 

Whether or not these issues can be worked out remains to be seen. But in the meantime, the SEC’s so far unproductive efforts serves to underscore the difficulties involved with trying to pursue actions involving companies with their principal places of business in China.

The rating agencies must defend against  claims for negligent misrepresentation in connection with the ratings the firms assigned to a pair of structured investments vehicles, Southern District of New York Judge Shira Scheindlin has ruled in a pair of May 4, 2012 decisions. Judge Scheindlin did grant the defendants’ motions to dismiss claims for negligence, breach of fiduciary duty and aiding and abetting, which substantially narrowed the plaintiffs’ claims.  But she denied the rating agencies’ motions to dismiss with respect to the negligent misrepresentation claims, finding that, based on the plaintiffs’ allegations, the ratings qualified as actionable misstatements under New York law.

 

Judge Scheindlin issued the opinions in two cases involving structured investment vehicles, one called Rhinebridge and one called Cheyne Financial. Judge Scheindlin’s opinion in the Rhinebridge case can be found here and the opinion in the Cheyne Financial case can be found here.

 

The background on the Cheyne financial case can be found here. The Rhinebridge case arose out of the Rhinebridge structured investment vehicle’s (SIV) June 27, 2007 offering of certain investment securities to certain Qualified Institutional Buyer and Qualified Purchasers. In connection with the offering, the rating agencies gave the Rhinebridge securities the highest ratings. The plaintiffs also allege that the rating agencies helped structure the investment vehicle. The offering proceeds were invested in a variety of residential mortgage related investments. The SIV was forced into receivership on October 22, 2007, becoming, the plaintiffs alleged, “perhaps the shortest-lived ‘Triple A’ investment fund in the history of corporate finance.”  In addition to the rating agencies, the plaintiff investors had also sued IKB Deutsche Industriebank AG , the bank that sponsored the SIV, and Morgan Stanley, which had acted as offering underwriter.

 

Judge Scheindlin had originally dismissed the plaintiffs’ common law claims, holding under New York law that the common law claims were preempted by the Martin Act. However, in December 2011, as discussed here, the New York Court of Appeals rejected Martin Act preemption for common law claims, and Judge Scheindlin allowed the plaintiffs leave to amend their pleadings to assert common law claims. After the plaintiffs amended their pleadings the defendants renewed their motions to dismiss.   

 

In her May 4 ruling in the Rhinebridge case, Judge Scheindlin granted the defendants’ motions to dismiss the plaintiffs’ claims for negligence, breach of fiduciary duty and aiding and abetting. However, she denied the motion to dismiss the plaintiffs’ claims against the rating agencies for negligent misrepresentation.

 

In denying the motions to dismiss the negligent misrepresentation claims, Judge Scheindlin said that:

 

the Rating Agencies (1 intended that their ratings would be used to evaluate the SIV; (2) intended that the plaintiffs –members of a select group of qualified investors – would rely in the ratings to evaluate the SIV; and (3) prepared their ratings with the end and aim of inducing investors such as the plaintiffs to invest in the SIV.

 

Judge Scheindlin’s ruling was specifically dependent on her determination, based on the plaintiff’s allegations, that “there was a privity-like ‘special relationship’ between the plaintiffs and the Rating Agencies.”  Judge Scheindlin also allowed the negligent misrepresentation claims to go forward as to IKB Deutsche Industriebank and Morgan Stanley.

 

Judge Scheindlin’s ruling in the Cheyne Financial case paralleled her rulings in the Rhinebridge case, and her order in the Cheyne Financial case expressly referenced her rulings in the Rhinebridge case.

 

Discussion

Among the causes many cite for the subprime meltdown is the willingness of the rating agencies to assign investment grade rating to securities backed by subprime mortgages. For that reason, in many of the lawsuits filed as part of the subprime litigation wave, plaintiffs have named rating agencies as defendants, seeking to hold them responsible for their investment losses. However, as discussed here, whether the rating agencies could actually be held liable is unclear, because in the past courts have found the rating agencies’ rating opinions to be protected by the First Amendment. The rating agencies have also raised a number of other defenses regarding their rating opinions.

 

A series of rulings in several cases have questioned the rating agencies’ defenses. As discussed here, in a September 2009 ruling in the Cheyne Financial case, Judge Scheindlin held that, at least where the rating agencies’ ratings were released only to a select group of investors, the rating agencies could not rely on their First Amendment defense. In May 2010, a California state court judge followed Judge Scheindlin in rejecting the rating agencies first amendment defense, as discussed here. In November 2011, in a case involving Thornburgh Mortgage mortgage pass through certificates, District of New Mexico Judge James Browning also rejected the rating agencies first amendment defenses, also relying on Judge Scheindlin’s opinion in the Cheyne Financial case, as discussed here.

 

Judge Scheindlin’s May 4 rulings arguably represent the latest decisions holding that the rating agencies could at least potentially be held liable for their ratings opinions. However, Judge Scheindlin’s latest rulings, like the prior rulings holding that the rating agencies could not rely on First Amendment defenses, were largely reliant on the fact at that the securities in question had only been distributed to a select group of investors. Indeed, in the Rhinebridge case, Judge Scheindlin found that the plaintiffs had adequately alleged that there was a privity-like relationship between the plaintiff investors and the rating agencies.

 

The various rulings In these cases, including also Judge Scheindlin’s most recent rulings in the Rhinebridge and Cheyne Financial cases, represent significant developments in connection with investors’ efforts to try to hold the rating agencies liable. However because these rulings are all dependent on the fact that the securities at issue were distributed only to a select group of investors, these rulings may not be helpful in cases involving securities that were more broadly distributed. But though these rulings have limitations, they also represent a growing body of case law on which investors can try to rely in asserting their claims against the rating agencies.

 

David Bario’s May 7, 2012 Am Law Litigation Daily article discussing Judge Scheindlin’s rulings can be found here.  Special thanks to Dan Newman of SCN Strategies for sending along copies of the opinions.

 

FCPA-Related Securities Class Action Suit Filed Against Wal-Mart: In yesterday’s post, I noted that CalSTRS had filed a shareholder derivative action against Wal-Mart, as nominal defendant, and certain of its directors and officers, in connection with the revelations concerning the company’s Mexican bribery allegations. Now, in addition to the shareholder derivative lawsuits, investors have also launched a securities class action lawsuit in connection with the bribery allegations.

 

According to their May 7, 2012 press release (here), the plaintiffs’ lawyers have filed a securities class action lawsuit against the company and certain of its directors and officers in the Middle District of Tennessee. The complaint, which can be found here, features a quote from and even a picture of company founder Sam Walton (allegedly taken from the company’s annual report). According to the press release, the complaint alleges that the defendants “ concealed from the investing public during the Class Period” that “the Company had violated the Foreign Corrupt Practices Act in connection with the bribery payments” and  that  "Walmart management did not address ethical concerns in a ‘timely and effective manner’ as represented by defendants.”

 

As I said previously about the CalSTRS derivative suit, these lawsuit filings reinforce the view that follow-on civil litigation is an almost invariable accompaniment of FCPA-related investigations, and show that FCPA-related exposures are a matter of serious shareholder concern. Taken collectively, the risk of an FCPA investigation as well of the related follow-on civil litigation risk are increasingly important liability exposures for companies and their directors and officers.

 

The number of bank failures has been winding down for a while now, but at same time the FDIC’s failed bank litigation has been ramping up. Through April 20, 2012, the FDIC has filed a total of 29 lawsuits against former directors and officers of failed banks, involving 28 different institutions. In a May 4, 2012 BankDirector.com post (here), Cornerstone Research takes a detailed look at the failed bank litigation so far. Cornerstone Research’s related May 2012 paper entitled “Characteristics of FDIC Lawsuits Against Directors and Officers of Failed Financial Institutions” can be found here.

 

According to the paper, during 2012 the FDIC has been “intensifying its litigation activity associated with failed financial institutions.” So far, the FDIC has filed 11 lawsuits in 2012, compared with 16 during all of 2011. The 2012 filing activity is on pace for a total of 35 lawsuits this year.

 

Currently, about 6 percent of financial institutions that have failed since 2007 have been the subject of FDIC lawsuits. (That compares to about 24 percent of all institutions that failed during the S&L crisis.). According to the Cornerstone Research paper, the lawsuits filed during the current bank failure wave have targeted the larger institutions and those with a higher estimated cost of failure.

 

The median size of the 28 institutions targeted so far was approximately four times as large as the median size of all failed institutions and six times as large as the median size of currently active institutions. The 28 targeted institutions had median total assets of $973 million, compared with median total assets of approximately $241 for all failed institutions. The 28 institutions had a median estimated cost to the FDIC of $222 million at the time of seizure, compared to the median cost of failure of $59 million for all failed financial institutions. The median cost of failure for financial institutions that have been targeted in 2012 lawsuits was $355 million, compared with $158 million for institutions sued from 2007 through 2011.

 

The states with the largest numbers of bank failures during the period 2007 through April 2012 were Georgia, Florida, Illinois and California. With the exception of Florida, the percentage of FDIC lawsuits targeting failed institutions is slightly higher than the percentage of failed institutions in those states. Despite the large number of failed institutions in the state, there has only been one failed bank lawsuit filed in Florida so far.

 

The 29 lawsuits filed so far have targeted a total of 239 former directors and officers. Outside directors were named as defendants in 20 of the 29 lawsuits. The remaining lawsuits targeted only inside directors and officers. Three cases have also included insurance companies as named defendants, and one case included a law firm defendant. Three cases have included directors or officers’ spouses as named defendants.

 

Losses on Commercial Real Estate and Acquisitions, Development and Construction loans were the most common bases for alleged damages. 17 of the complaints identified CRE loans as the basis for claimed damages and 15 of the complaints identified ADC loans.

 

The most recent lawsuits have been filed just prior to the expiration of the three-year statutes of limitations. During 2012, the median time between an institution’s failure and the filing of an FDIC lawsuit was 2.97 years, compared with 2.26 years for the lawsuits filed during the period 2007 through 2011. Among the 11 lawsuits filed so far in 2012, five involved lawsuits that failed in 2010, five involve lawsuits that failed in 2008, and one involved a bank that failed in 2008.

 

The FDIC has indicated on its website that through April 25, 2012, the agency has authorized lawsuits involving 493 individuals at 58 institutions. As these figures are inclusive of the lawsuits already filed, the authorization figures imply a pipeline of as many as 30 additional lawsuits — which were they to be filed would represent another 7 percent of all failed banks. That is, the filed and authorized lawsuits together could involve as much as 13 percent of all failed institutions. These figures of course represent only the lawsuits authorized to date; the FDIC has been increasing the number of authorizations monthly over the course of the past several months.

 

The FDIC’s latest authorization figures on its website did not specify an aggregate damages figure that the authorized lawsuits represent, but the figure the agency used (for a lesser number of lawsuits) in January 2012 was $7.7 billion, which compares to the aggregate damages claimed so far of $2.4 billion – which suggests that the authorized lawsuits may include some very significant additional claimed damages.

 

The Cornerstone Research report notes that a number of the large and costly bank failures during 2008 (and 2009) have not yet been the subject of an FDIC lawsuit. The report notes that the directors and officers of these institutions may be involved in negotiations with the FDIC. Whether these additional large bank failures will become the subject of future FDIC lawsuits “will depend on the outcome of such negotiations, statute of limitations restrictions, and tolling agreements that may be agreed upon during such negotiations.”

 

Only three of the FDIC’s failed bank lawsuits have settled so far, as discussed on page 13 of the Cornerstone Research report. These settlements include the WaMu settlement (about which refer here) and the First National Bank of Nevada settlement (about which refer here).

 

On a final note, the Cornerstone Research report projects that given the current pace of bank failures this year, we are on track for about 69 bank failures in 2012, compared to 92 in 2011 and 157 in 2010. With the addition of another failed bank this past Friday evening, there have been a total of 23 bank failures so far this year.

 

CalSTRS Takes on Wal-Mart Over FCPA Issues: As I have previously noted on this blog, a frequent accompaniment of an investigation of a Foreign Corrupt Practices Act investigation is a follow-on civil lawsuit, in which investors alleged either that the company’s management failed to properly supervise the company’s operations or that the company issued misleading statements about its internal controls or financial condition.

 

Given the relative frequency of this type of litigation, it was hardly surprising that Wal-Mart’s recent announcements of FCPA-related concerns involving its Mexican operations attracted litigation. Just the same, as Alison Frankel points out in a May 4, 2012 article on her On the Case blog (here), the filing of a lawsuit against Wal-Mart, as nominal defendant, and 27 of its current and former directors and officers, by the California State Teachers Retirement System (CalSTRS) represents a significant and noteworthy development.

 

In its May 3, 2012 complaint, which can be found here, CalSTRS alleges, among other things, that “prolonged failure to address detailed and credible allegations of criminal activity undertaken with the tacit or express consent of current and former senior corporate officials, and the complicity of the Company’s highest level executives in shutting down any investigation into those allegations, is causing and will continue to cause the Company substantial harm.”

 

As Frankel comments, when an “800-pound gorilla” like CalSTRS gets involved in this type of follow-on civil litigation, things have definitely become “serious.” The CalSTRS lawsuit will also set up a potential conflict between the actions previously filed in Arkansas in connection the Wal-Mart’s FCPA revelations and the CalSTRS action, which was filed in Delaware.

 

From my perspective, the CalSTRS lawsuit not only reinforces the view that follow-on civil litigation is an almost invariable accompaniment of FCPA-related investigations, but the involvement of CalSTRS itself highlights that FCPA-related exposures are a matter of serious shareholder concern. Taken collectively, the risk of an FCPA investigation as well of the related follow-on civil litigation are increasingly important liability exposures for companies and their directors and officers. 

 

Judge Wants to Know About Lehman Executives Wealth Before Approving D&O Settlement: Last August when it was first announced that the parties to the shareholder suit arising out of the collapse of Lehman Brothers had agreed to settle the case for $90 million – the amount of the remaining limits of the company’s D&O insurance program – I knew there could be trouble, especially since the settlement did not contemplate any contribution from the individual defendants themselves.

 

I was not the only one that anticipated possible problems. The plaintiffs lawyers themselves foresaw there could be trouble, as well. Aware of a possible “hue and cry” about the Lehman executives “getting off the hook without paying any money,” the plaintiffs tried to head off controversy by hiring John S. Martin, Jr., a retired federal judge, in order to determine whether the executives had a combined net worth of $100 million. Judge Martin prepared a report in which he concluded that “I am satisfied that the Liquid Worth of the Officer Defendants taken together, is substantially less than $100 million.”

 

The parties submitted their proposed settlement – including Judge Martin’s report — to Southern District of New York Judge Lewis Kaplan. In a May 3, 2012 opinion that opens with a quotation from noted legal scholar Kenny Rogers, Judge Kaplan concluded that the information in Martin’s report was not sufficient to permit him to determine whether or not he should approve the settlement. Judge Kaplan’s opinion evinces full awareness of the fact that if the parties had failed to reach their agreement to settle the case for the remaining D&O insurance program limits, the amount of insurance remaining would rapidly have diminished, leaving the shareholders with perhaps an even smaller recovery.

 

Judge Kaplan’s concern has to do with the nature of the inquiry Judge Martin was asked to address. Specifically, Judge Kaplan was concerned with the fact that Judge Martin looked only at whether or not the defendants’ liquid net worth is less than $100 million. Judge Martin’s answer, Judge Kaplan said, “is not informative as is necessary and appropriate for this Court to consider” all of the requisite factors for class action settlement approval. In the end, Judge Kaplan called for the in camera production of all the information that had been submitted to Judge Martin, so that Judge Kaplan could consider all information (presumably including information about assets the defendants may have held that is not “liquid”) in order to determine how the settlement compared to possible available alternatives by assessing the extent to which the defendants could withstand a judgment in excess of the remaining amount of insurance.

 

Everything about this situation is highly unusual, starting with the fact that the case involved is perhaps the highest profile civil lawsuit arising out of the financial crisis and that the collapse of Lehman Brothers may have been the most critical development during the crisis. The fact that the case settled as it did may not have been all that unusual, as parties often reach compromises based on dwindling amounts of insurance. However, the plaintiffs, anticipating trouble, took extraordinary steps to try to substantiate the settlement, by hiring Judge Martin to assess the individual defendants’ net worth. By the same token, Judge Kaplan’s further consideration of the individual defendants’ collective net worth arguably is even more unprecedented.

 

The defendants have until May 10, 2012 to submit the information they had provided to Judge Martin to Judge Kaplan for in camera review.

 

Susan Beck’s May 4, 2012 Am Law Litigation Daily article about Judge Kaplan’s decision can be found here.

 

On April 5, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (commonly referred to as the JOBS Act). This legislation, which enjoyed strong bipartisan support in Congress, is intended to ease the IPO process for emerging growth companies and to facilitate capital-raising by reducing regulatory burdens and disclosure obligations. Among other things, the Act also introduces changes that could impact the potential liability exposures of directors and officers of both public and private companies. These changes could have important D&O insurance implications.

 

In the latest issue of InSights, I take a detailed look at the provisions of the JOBS Act and consider the Act’s possible impact on D&O liability and insurance. The InSights article can be found here.

On March 30, 2012, in a decision that may highlight the extent to which Canadian courts are increasingly willing to enforce securities laws in ways that may have extraterritorial effects, the Ontario Court of Appeals held that the liability regime under the Ontario Securities Act applies to Canadian Solar, a company whose shares trade only on NASDAQ and that do not trade on any Canadian exchange, and that has its principal place of business in China. A copy of the Court of Appeal decision can be found here.

 

Background

An Ontario resident initiated a putative class action lawsuit against Canadian Solar under the Ontario Securities laws, alleging that the company overstated its financial results. Section 138.3 of the Ontario Securities Act creates a cause of action in the event of a misrepresentation by a “responsible issuer.” The statute defines “responsible issuer” as a reporting issuer or “any issuer with a real and substantial connection to Ontario, any securities of which are publicly traded.”

 

Canadian Solar is not a “reporting issuer.” Its shares are listed only on NASDAQ. Its shares do not trade on any Canadian exchange. Canadian Solar’s principal place of business is in China. However, it is registered as a Canadian federal corporation with its registered office and executive offices in Ontario.

 

A motions judge held that Canadian Solar is “responsible issuer” within the meaning of the statute. Among other things, the motions judge held that Canadian Solar’s shares did not have to be publicly traded in Canada for it to come within the definition of “responsible issuer.” Canadian Solar appealed this aspect of the motions judge’s ruling, arguing that only a company whose shares were publicly traded in Canada came within the definition of a “responsible issuer.”

 

The Ruling of the Court of Appeals

In a March 30, 2012 opinion, written by Justice Alexandra Hoy for a three-judge panel, the Ontario Court of Appeal s held that “the general principles with respect to extraterritorial regulation do not require that the definition of ‘responsible issuer’ be interpreted as confined to issuers any of whose securities are publicly traded in Canada.” Justice Hoy added that “there is a sufficient connection between Ontario and Canadian Solar to support the application of Ontario’s regulatory regime to Canadian Solar.”

 

Among other things, in connection with the sufficiency of the connection to Ontario, the court also noted that the plaintiff , “an Ontario resident who placed his order in Ontario for shares of a corporation based in Ontario, would reasonably expect that his claim for misrepresentations in documents released or presented in Ontario would be determined by an Ontario court.”

 

Discussion

The Ontario Court of Appeals decision in the Canadian Solar case is interesting and potentially significant because of its holding that the secondary market misrepresentation damages class action under the Ontario securities laws could be asserted against a company even though the company’s securities were not publicly traded in Canada. Because all of the Canadian provinces have enacted legislation simalar to Ontario’s (similar at least in this respect), the decision could have implications across all of the Canadian provinces. There obviously are factors that made this situation somewhat distinct, if not perhaps unique; Canadian Solar is a Canadian registered corporation with both its registered office and its executive offices in Ontario. In addition, the plaintiff, an Ontario resident, purchased his Canadian Solar shares in Ontario.

 

Nevertheless, as noted in an April 4, 2012 memo from the Osler, Hoskin & Harcourt law firm (here), the Court’s decision “makes it clear that non-reporting issuers whose shares do not trade anywhere in Canada may nevertheless find themselves subject to Ontario’s liability regime for misrepresentations made in the secondary market, provided however that the issuer has a ‘real and substantial connection’ to Ontario.”

 

At a minimum, as discussed in a May 2012 memo from the Blake, Cassels & Graydon law firm (here), the Canadian Solar opinion provides “possible guidance that may be instructive to determining when a real and substantial connection exists for purposes of the statute.” In particular, the memo also notes, it appears that “there is no one factor that will insulate companies from Canadian securities law.”

 

The Blake law firm’s memo goes on to suggest that “it is feasible that the current state of the law may result in Ontario and other Canadian jurisdictions becoming the forum of choice for shareholders attempting to seek remedies even where the connection to Canada is tenuous.” What remain to be determined in future cases, as the Osler, Hoskin law firm’s memo notes, “is the extent of the connections that other foreign issuers will be required to have with the province before they will be considered ‘responsible issuers’ for purposes of” the statute.

 

In the wake of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank, one of the questions that has been asked is whether another jurisdiction will emerge as an alternative forum in which aggrieved investors precluded from U.S courts can pursue their remedies. The Canadian Solar case provides an interesting point of view on the consideration of these issues, given that because the company’s shares trade on NASDAQ, an action against the company and its directors and officers under the U.S. securities laws is not precluded under Morrison. (Indeed, a separate action against the company has been filed in the United States, about which refer here.)

 

Nevertheless, the case does provide interesting additional insight into the possible availability of Canada as an alternative forum. This possibility was already the subject of a great deal of focus since Canadian courts have certified a global plaintiff class in the Imax case (about which refer here), and in the Arctic Glacier case (about which refer here). 

 

The possibility that the Canadian courts might emerge as an alternative forum of choice seems to be advanced by the Court’s holding that it is not preclusive of an action under the relevant laws that the defendant company’s share were not traded on a Canadian exchange. Of course there were many other factors involved in this case that supported the application of the Ontario laws here that are not going to be present in many other cases. Nevertheless, the case does reflect a willingness by Canadian courts to apply its laws to cases with significant foreign aspects as well.

 

Much has been written recently (including on this blog) about the growing prevalence of M&A related litigation. These lawsuits, typically launched by the target company shareholders, are filed shortly after a merger announcement and usually object to some aspect of the proposed merger or of the merger-related disclosure. But the merger objection lawsuit is not the only kind of lawsuit that mergers can produce – there is also the kind of lawsuit that can arise post-merger when, it is alleged, the merger was not successful.

 

In a recent example of this second kind of merger lawsuit, on May 2, 2012, plaintiffs filed a shareholder class action lawsuit in the Northern District of Illinois against Allscripts Healthcare Solutions and two of its officers. Allscripts is, according to the complaint, the “corporate result” of the merger of Allscripts-Misys Healthcare Solutions and Eclipsys Corporation, which was announced on June 9, 2010.

 

The complaint references the company’s April 26, 2012 filing on Form 8-K (here), in which the company “shocked the market” by reporting earnings sharply lower than guidance, as well as the termination of the Chairman of the company’s board of directors; the resignations of three other directors; and the resignation of the company’s CFO. According to the 8-K, the termination and resignations followed board discussions regarding the leadership of the company. The complaint alleges that in reaction to the news the company’s share price dropped sharply.

 

According to plaintiff’s counsel’s May 2, 2012 press release (here), the complaint alleges that during the class period:

 

Allscripts concealed that: (a) the process of developing a unified product offering after the Merger had suffered debilitating setbacks, including major undisclosed schisms among the most senior levels of the Company, which ultimately resulted in the loss of key personnel and harmful upheaval in Company leadership; (b) a material portion of Allscripts’ revenue and net income was predicated on the successful integration of these systems, and substantial business relationships had been destroyed by the Company’s inability to make material progress in this area; and (c) as a result of the foregoing, Allscripts lacked a reasonable basis for its claims of progress in post-Merger integration, sound operations, profitable results, and continued growth.

 

This latest lawsuit exemplifies the second type of merger-related lawsuit, typically filed post-merger and typically alleging that the merger did not live up to expectations. Perhaps the highest profile example of this type of lawsuit is the litigation filed in July 2002 in the wake of the failed AOL Time Warner merger. That litigation ultimately resulted in a settlement of $2.5 billion (not to mention extensive additional opt-out settlements), which is the seventh largest securities class action lawsuit settlement of all time.  

 

Another high-profile case of this same type is the lawsuit that was filed in 2000 following the December 1998 merger transaction that led to the formation of Daimler Chrysler. That case ultimately settled for $300 million.

 

Nor are high-profile mergers the only types of transactions that can produce this type of merger-related litigation. For example, in September 2011, shareholders filed a securities class action in the Northern District of California against Equinix and certain of its directors and officers, in which the plaintiffs disclosed that the company was having difficult with the integration of Switch & Data Facilities Company, which Equinix had acquired in April 2010. (To be sure, in March 2012, the court granted the defendants’ motion to dismiss, albeit with leave to amend.)  

 

My point here is that the merger objection cases are not the only type of litigation that mergers and acquisitions activity can generate. As these examples show, there is also the possibility that to the extent the merger does not live up to expectations (or rather – allegedly does not live up to expectations) there could be post-merger litigation as well. These post-merger suits may either allege (as was the case in the Daimler Chrysler litigation) that the merger related documents contained misrepresentations, or that the company made misrepresentations regarding its post-merger operations or merger-related integration (as was the case in the Equinix case and in the recently filed Allscropts case). At some level it is hardly surprising that litigation might arise post-merger from time to time, given that – depending on who you ask – “mergers have a failure rate of anywhere between 50 and 85 percent.”

 

Indeed the possibility of a lawsuit alleging that the merger did not live up to expectations is itself not the only type of post-merger litigation that can arise. Another variant that can sometimes arise is the post-merger lawsuit alleging that the surviving company failed to properly account for the transaction or to properly present the financials of the combined companies. An example of this latter type is the July 2011 lawsuit filed against JBI, Inc. and certain of its directors and officers, in which the plaintiff alleged that the company did not properly account for certain media credits it had acquired in connection with an acquisition transaction.

 

All of which serves to underscore a point which has long been known to D&O underwriters – that is, the mergers and acquisitions transactions provide context out of which litigation sometimes (perhaps frequently) arises. The recent rise in merger objection litigation has certainly amplified this point. But as the examples in this blog post demonstrate, there are other types of lawsuits beyond the merger objection cases that can arise in connection with or following a merger transaction.

 

Are We There Yet?: One of the huge by-products of the July 2010 enactment of The Dodd-Frank Act is the huge rulemaking burden that the Act imposed on a variety of federal agencies. As I have noted in a prior post (here), the agencies have been laboring under the rulemaking burdens, and in many cases have fallen far beyond their rulemaking deadlines the Act required.

 

Although there obviously is no joy in the exercise, the Davis Polk law firm has been diligently tracking the agencies’ rulemaking progress. In its May 2012 Dodd-Frank Progress Report (here) the law firm details the current status of the agencies’ rulemaking efforts.

 

Among other things, the study shows that as of May 1, 2012, a total of 221 Dodd-Frank rulemaking requirement deadlines have passed. Of those 221, 148 (67%) have been missed and 73 (33%) have been met with finalized rules. Regulators have not yet released proposals for 21 of the 148 missed deadlines.

 

Of the total of 398 rulemakings that Dodd-Frank required, 108 (27.1%) have been met with finalized rules and 146 rules have been proposed that would meet the requirement  (36.7% more). Rules have not been proposed to meet 144 (36.2%) rulemaking requirements.

 

The Dodd-Frank Act’s rulemaking juggernaut grinds onward. Your government at work. At the direction of Congress.