In prior posts (most recently here), I have noted the growing numbers of lawsuits brought against the former directors and officers of failed or troubled banks. If the complaint recently filed in New York state court is any indication, the "dead bank" lawsuits apparently will also include claims against the directors and offices of failed banks from outside the U.S., too. As it turns out, the fallout from the Icelandic banking explosion includes claims filed in New York against former directors and officers of one of the largest Icelandic bank failures.

 

On May 11, 2010, the U.S. representative of the resolution committee of Glitnir Bank filed an action in New York (New York County) Supreme Court seeking to recover $2 billion in damages from Glintir’s controlling shareholder and his wife; two former directors and the former CEO of Glitnir; several of the controlling shareholder’s business associates, and the bank’s auditor, the Icelandic affiliate of PricewaterhouseCoopers. A copy of the complaint can be found here.

 

Though based in tiny Iceland (total population substantially smaller than that of Cleveland), Glitnir, which ultimately was one of Iceland’s three largest banks, grew to have over 1,900 employees in ten countries, with a market capitalization of over $7 billion and total assets of over $40 billion.

 

In October 2008, in the midst of the global financial crisis, Iceland’s Financial Services Authority took control of Glitner. Glitner ultimately filed a petition for bankruptcy in the U.S. under Chapter 15 of the Bankruptcy Code. According to the May 11 complaint, creditors have filed claims exceeding $26 billion.

 

Michael Lewis’s outstanding April 2009 Vanity Fair article, "Wall Street on the Tundra" (here) chronicles the astonishing and even inexplicable rise and spectacular collapse of the Icelandic banking bubble. ("Iceland instantly became the only nation on earth that Americans could point to and say, ‘Well, at least we didn’t do that.’ In the end, Icelanders amassed debts amounting to 850 percent of their GDP.")

 

The May 11 complaint alleges that Jon Asgeir Johannesson (typographical markings omitted) and his wife, Ingibjorg Stefania Palmadottir (typographical markings omitted), and businesses they owned or controlled, used improper means to "wrest control" of Glitnir and to "fraudulently drain over $2 billion out of the Bank to fill their pockets and prop up their own failing companies."

 

According to the complaint, beginning in 2006, Johannesson "engaged in a scheme" using his "web of companies" to take control of Glitnir in violation of Icelandic law. By April 2007, Johannesson and his companies owned about 39% of Glitnir’s stock. As a result, Johanneson was able to "stack" Glitnir’s board "with individuals who had connections with companies he controlled," and he also "had his inexperienced hand-selected candidate" replace the existing CEO.

 

Having taken control of the Bank, its board and its management, Johannesson and the other individual defendants "used their control over the Bank and funds raised in U.S. financial markets to issue massive ‘loans’ to, and a series of equity transactions with, companies Johannesson controlled, in an effort to stave off their eventual collapse," which "placed the Bank in extreme financial peril."

 

The complaint specifically alleges that the defendants "concealed the truth about their risk they had created for Glitnir when they turned to the United States markets to raise funds." The complaint specifically references a September 2007 transaction in which Glitnir issued $1 billion in medium term notes (MTN), alleging that the offering documents "understated Glitnir’s exposure to related and connected parties by $800 million."

 

The complaint also alleges that the individual defendants "could not have succeeded in their conspiracy to loot Glitnir without the complicity of Glitnir’s outside auditors at PricewaterhouseCoopers." (Jim Peterson has a particularly interesting commentary on the Glitnir bank claims against PwC on his Re:Balance blog, here.)

 

The complaint asserts nine separate claims against the individual defendants alleging violation of Icelandic statutory laws governing corporations. The complaint also asserts common law claims against the individual defendants for tort, conversion, and unjust enrichment. In addition, the complaint asserts negligence and breach of contract claims against PwC. The complaint seeks damages of $2 billion against the individual defendants and $1 billion against PwC.

 

The complaint’s allegations are fascinating, in the way that it is interesting to find out what events and actions preceded a train wreck or plane crash. In many critical ways, the events (allegedly) preceding Glitnir’s collapse precisely recapitulate the sequence Micheal Lewis described in summarizing what happened in Iceland; Lewis wrote in his Vanity Fair article that "a handful of guys in Iceland, who had no experience in finance, were taking out billions of dollars in short-term loans from abroad. They were then re-lending this money to themselves and their friends to buy assets – the banks, soccer teams, etc."

 

Though this lawsuit has its own peculiar Icelandic flavor, the lawsuit resembles in many ways any lawsuit that might be filed in the wake of a U.S. bank’s collapse. The specific U.S. variety of lawsuit this case most resembles is a claim brought by a bankruptcy trustee, as opposed to an investor lawsuit or a lawsuit brought by regulators.

 

But the resemblance to a variety of U.S. lawsuit notwithstanding, the obvious question about this case is: what the heck is it doing in state court in New York? We’ve got an Icelandic bank, Icelandic defendants, and even claims under Icelandic statutory law. The plaintiffs knew you were going to ask that question. The complaint helpfully points out that Johannesson and his wife reside in New York; that many of the acts in furtherance of the conspiracy took place in New York (including the September 2007 MTN financing); many of the transaction documents had New York choice of law provisions; and the bank and its key officials "had substantial interaction with New York."

 

The plaintiffs do their earnest best to justify their resort to a New York court for this case. They even try to exploit New York’s vain self-regard, asserting that the case belongs in New York because it is "the financial center of the world," and it not only has "a general interest in maintaining and fostering its undisputed status as the preeminent commercial and financial nerve center" but it also has "a keen interest in making sure its financial markets are not abused to facilitate massive illegal activity."

 

The plaintiffs do not mention, but we can assume, that they prefer New York over Iceland because U.S. courts offer a host of advantages over the courts of just about any other jurisdiction, including jury trials, pre-trial discovery, and contingent attorneys’ fees.

 

For all of the reasons the plaintiffs acknowledge, and perhaps even more so for the reasons the plaintiffs don’t explicitly mention, litigants from around the world may seek to access U.S. courts for redress of grievances in the wake of bank failures. I have long felt that the current wave of U.S. bank failures is going to produce a wave of lawsuits. The Glitnir case suggests that the litigation wave may well encompass claims relating to failed banks from around the world, not just failed U.S. banks.

 

One question I wondered while reading this complaint is whether or not Glitnir carried D&O insurance. The reckless way business was conducted in Iceland (at least as portrayed in Lewis’s Vanity Fair article) suggests the Icelandic financiers might not have slowed down long enough to consider any type of risk mitigation, much less anything as conventional as insurance. And even if Glitnir had insurance, it has likely long since lapsed, and so unless this new complaint relates back to some timely filed claim or notice, insurance might not be available anyway.

 

But whether or not there is D&O insurance available, this complaint, for all of its peculiar Icelandic features (including typographical symbols I am unable to reproduce here), in many ways represents the classic type of D&O claim that can follow a bank’s collapse, at least to extent it names two former directors and the former CEO as defendants. I had not anticipated that claims involving Icelandic banks would corroborate my position, but I will say that this case is at least consistent with my long-standing projection for litigation arising from the growing number of failed banks.

 

There are of course many more conventional cases also corroborating my position, including the investor lawsuit filed on May 7, 2010 involving First Regional Bancorp (about which refer here) and the lawsuit filed on May 12, 2010 involving BancorpSouth (refer here) – both of which involving U.S.-based banks.

 

The bottom line is that it is no longer quite accurate for me to continue to say that failed bank litigation is coming – it is here.

 

A Literary Interlude: The reference above to Michael Lewis’s Vanity Fair article reminded me that a copy of his latest book, The Big Short, is languishing unread on my bookshelf. Rather than reading yet another account of our dysfunctional financial system, I have been distracted by Maurice Lever’s excellent biography of Pierre-Augustin Caron de Beaumarchais.

 

Beaumarchais is now remembered mostly for having written The Barber of Seville and The Marriage of Figaro, though ironically he wrote those works essentially as a diversion from his many other hyperkinetic activities. Beaumarchais was a watchmaker’s son who managed to leverage music lessons provided to the French King’s daughters into court contacts and business opportunities from which he achieved wealth, notoriety and a life so full it almost can’t be summarized.

 

Variously an entrepreneur, inventor, author, royal agent, diplomat, spy, labor organizer, publisher and printer, arms merchant, and revolutionary, and throughout it all a tireless and effective self-promoter and compulsive litigant, Beaumarchais was at the center of many of the critical events in the events leading up to the French Revolution.

 

The vast sweep of Beaumarchais’s life encompasses enough to have filled several lifetimes. If we now remember him most for his plays, we should at least recognize how provocative and even seditious his plays were at the time. One excerpt from Figaro is particularly illustrative in that regard, and worth reproducing here. Though Figaro speaks the words, it is not too hard to imagine these same sentiments come from the mouth of one as talented and ambitious as Beaumarchais, chaffing against the unfairness of a system of aristocracy that delimited the upward range of his achievement:

 

Just because you’re a great nobleman, you think you’re a great genius! Being an aristocrat, having money, a position in society, holding public office – all that makes a man so arrogant! What have you ever done for all this wealth? You took the trouble to be born and nothing else! Apart from that you’re rather an ordinary man. And me, God damn it, a nobody, one of the crowd, and I’ve had to use more skill and ingenuity simply to stay alive than they’ve expended in a hundred years governing the whole of Spain! And you dare challenge me!

 

　

　

As the various subprime-related securities lawsuits have reached the motion to dismiss stage, some of the rulings have gone for the defendants and other have gone for plaintiff. Regions Financial Corporation experienced one of each kind of ruling in two separate cases involving allegations about the goodwill the company carried on its balance sheet as a result of its November 2006 acquisition of AmSouth.

 

As discussed below, the motion to dismiss was denied in the Alabama state court derivative suit, but the motion to dismiss was granted in the securities class action lawsuit pending in the Southern District of New York.

 

Regions Shareholders’ Derivative Lawsuit (Alabama)

Background

Plaintiffs filed their shareholders’ derivative complaint in May 2009 in Alabama (Jefferson County) Circuit Court against Regions, as nominal defendant, and certain current and former members of Regions’ board of directors. The complaint asserts claims against the company defendants for breach of fiduciary duty, corporate waste, and abuse of control. (The complaint asserts separate claims against the company’s offering underwriters and auditing firm for aiding and abetting and breach of professional duties).

 

The complaint’s allegations pertain to the company’s November 2006 $10 billion purchase of AmSouth and the alleged falsification of the company’s public statements and disclosure documents both during and following the transaction. The complaint principally focuses on the company’s disclosures between the time of the merger and the company’s January 2009 write down of over $6 billion of goodwill. Throughout that period, and despite the deteriorating real estate market, the merger allegedly was touted as a success, notwithstanding Regions’ acquisition of AmSouth’s exposure to the Florida real estate market.

 

According to the complaint in June 2008 the SEC questioned the company’s determination in its 2007 10-K that its goodwill balance was not impaired. Analysts also began to question this issue as well, but it was not until January 2009 that the company, as the Alabama court later put it "wrote down its goodwill and admitted that the value of its loan portfolio was billions less that [sic] what had been reported." The plaintiff alleges that the defendants knew of the true financial situation and misrepresented or concealed those facts.

 

The company defendants moved to dismiss on the grounds that the plaintiff had failed to make a pre-suit demand that the company itself bring the claims. The plaintiff countered that demand was excused.

 

The May 6 Ruling

In a May 6, 2010 order (here), Circuit Court Judge Robert S. Vance, Jr., applying Delaware substantive law and Alabama procedural requirements largely denied the defendants’ motions to dismiss, finding that the plaintiffs "have met their burden, at least at to the extent needed to establish demand futility at this point."

 

Judge Vance noted the widespread deterioration of the Florida real estate market, and also reviewed the duties of the board, particularly its audit committee, to consider critical financial issues such as goodwill impairment. Judge Vance noted that:

 

Given these duties along with the well-known and heavily publicized deterioration of the real estate market (especially in Florida) and the corresponding collapse in the credit market, and the letter received from the S.E.C. in June 2008, the members of the audit committee can fairly be said to confront a substantial likelihood of liability as a result of Regions’ failure to advise its shareholders prior to January 2009 that its financial situation was threatened.

 

Judge Vance also denied (in reliance on the Citigroup derivative lawsuit case) defendants’ motions to dismiss the plaintiffs claims for waste "to the extent that corporate waste allegations pertain to compensation issues specifically authorized by the directors."

 

However, Judge Vance found that the plaintiffs had failed to show enough to maintain claims based on an alleged failure to oversee Regions’ subsidiary, Morgan Keegan, holding that the plaintiffs "fail to show in what particular ways the Regions’ board has consciously failed to oversee the operations of its subsidiary."

 

Southern District of New York Securities Class Action Lawsuit

Background

As reflected in greater detail here, the plaintiffs first filed a securities class action lawsuit in the Southern District of New York against Regions on April 1, 2009. The plaintiffs represented investors that had purchased securities in the company’s $345 million April 2008 trust preferred securities offering. The defendants included the company, certain of its directors and officers, its offering underwriters, and its auditor.

 

The plaintiffs alleged that the April 2008 offering documents were false and misleading because they incorporated by reference financial statements that overstated goodwill and underestimated loan loss reserves. Among the financial statements incorporated into the offering documents was the company’s 2007 Form 10-K.

 

The complaint alleged that the company "did not write down any of the massive goodwill" it recorded in its 2007 10-K "despite growing evidence indicating that serious problems existed at the time of the acquisition." The complaint also alleges that Regions "only marginally increased its loan loss reserves" despite "the high risk of loss inherent in its mortgage loan portfolio."

 

The defendants moved to dismiss on the grounds that the plaintiffs had failed to allege any actionable misstatements or omissions.

 

The May 10 Ruling.

In his May 10, 2010 opinion (here), Southern District of New York Judge Lewis Kaplan granted the defendants’ motions to dismiss.

 

With respect to the plaintiff’s allegations regarding goodwill, Judge Kaplan concluded that "in the absence of particularized allegations that management believed that the goodwill figure was materially overstated, the amended complaint is insufficient as a matter of law."

 

In reaching this conclusion, Judge Kaplan noted that the goodwill was intended to reflect the excess of the acquisition price over the fair value of AmSouth’s assets at the time of the acquisition. He noted that the value of AmSouth’s loan portfolio "was not a matter of objective fact," as its loan assets were not traded on an efficient market, adding "nor has plaintiff pointed to any other objective standard of value." Given the lack of "any objective or readily determinable value," the question of the falsity of the goodwill presented in the offering documents is not a question of whether or not the value was wrong in some empirical sense, but whether or not the offering documents actually reflected management’s "honest opinion." Because the complaint did not allege that the goodwill did not reflect management’s opinion, the complaint’s allegations regarding goodwill were insufficient as a matter of law.

 

Even though the SEC’s June 2008 inquiry letter came two months after the April 2008 securities offering, Judge Kaplan expressly addressed the letter’ implications He noted that the SEC did not question the validity of Regions’ goodwill balance, but rather asked only for Regions to disclose how it determined that the goodwill balance was not impaired. Regions had responded that the goodwill reflected the fact that a potential buyer would offer a control premium for the business franchise. The SEC had replied that it had no further comments. Judge Kaplan concluded that the exchange with the SEC did not support an inference that Regions was aware that its goodwill was impaired at the time its alleged misstatements.

 

Judge Kaplan reached a similar conclusion with respect to the alleged insufficiency of Regions’ loan loss reserves, noting that the loan loss reserves are not a matter of objective fact, but rather were statements of opinion. He noted that the complaint is "devoid of any allegation that the defendants did not truly hold those opinions at the time they were made public."

 

Discussion

The difference in outcome of these two dismissal motion rulings is largely a reflection of the fact that the two courts were engaged in significantly different exercises. The Alabama court was determining only whether or not the requirement for pre-suit demand was excused based on the circumstances alleged.

 

Judge Kaplan was not only examining the legal sufficiency of the allegations, but he was also considering whether or not the complaint met the specific legal requirements for the specific claims alleged.

 

But the difference between these two opinions reflects more than the difference in the precise questions before the respective courts.

 

The two opinions also reflect strongly different starting points. Judge Vance in the Alabama case took it as a given that the residential real estate marketplace was rapidly deteriorating during the relevant time period, and that the deterioration was a relevant consideration. Judge Vance also considered the SEC’s letter relevant to whether or not the company’s financial statements were misleading due to the company’s delay in recognizing the impairment of the goodwill.

 

Judge Kaplan’s analysis seems to suggest that that these external considerations were irrelevant, and the only consideration was whether or not the offering documents accurately reflected management’s opinion about goodwill.

 

Judge Vance was, of course, concerned with a broader period of time and a broader range of communications than was Judge Kaplan. And unlike the plaintiffs in the securities fraud lawsuit before Judge Kaplan, the plaintiffs in the derivative lawsuit had expressly alleged knowing or reckless misrepresentation. Because the claims before Judge Kaplan were asserted under the ’33 Act, the plaintiffs in that case had not alleged knowing or reckless misrepresentation.

 

Accordingly, it might be asserted that the differences between the two opinions are simply a reflection of the differences in the facts alleged and the substantive difference in the claims asserted. That assertion might even be true. However, I find it very hard in reading these two opinions not to conclude that these opinions are best explained by the differences in the two Judge’s starting points. For Judge Vance, it was all about the external context. For Judge Kaplan, the context is irrelevant.

 

Just to round out the picture here, it is worth noting that in a March 9, 2010 order (here), Western District of Tennessee Judge Samuel H. Mays, Jr. denied the motion to dismiss in the Regions Financial subprime-related ERISA class action lawsuit. On the one hand you might say that this is yet another decision relating to the same set of circumstances, but it could also be argued that the ERISA plaintiffs have alleged a substantially broader array of misrepresentations. At a minimum, you can say that the dismissal motion rulings in the subprime-related cases involving Regions Financial Corp. are basically all over the map.

 

Once final note is that Judge Vance’s ruling may be significant due to the fact that it is a higher-profile subprime related derivative suit in which the complaint survived the initial motions to dismiss. This outcome stands in contrast to prior rulings in subprime-related derivative suits – for example, in the Citigroup derivative lawsuit (about which refer here) and AIG derivative lawsuit (refer here). Based on these rulings, a perception has been growing the plaintiffs are struggling in these cases.

 

Judge Vance’s holding that demand in this case is excused is a potentially significant holding, although its impact is likely to be limited both due to the somewhat case specific facts (including in particular the SEC’s June 2008 letter inquiry), and due to the fact that the ruling is the product of an Alabama state court applying Delaware law. These factors may restrict the impact of the case.

 

Nevertheless the May 6 order does represent an example where plaintiffs were able to overcome the challenging initial hurdles involved in shareholders’ derivative litigation.

 

I have in any event added the two Regions-related rulings to my running tally of subprime-related dismissal motions rulings, which can be accessed here.

 

Special thanks to several loyal readers for providing me with copies of the various Regions Financial rulings. .

 

E*Trade Subprime Securities Suit Dismissal Motion Ruling Denied: And speaking of subprime-related securities lawsuits in which the dismissal motions were denied, in another order dated May 10, 2010 (here), Southern District of New York Judge Robert Sweet denied the defendants’ motion to dismiss in the subprime related securities suit pending against E*Trade and certain of its directors and officers.

 

As reflected in greater detail here, the plaintiffs had first filed their securities actions against E*Trade in October 2007, alleging that the company had failed to disclose deterioration in its mortgage and home equity loan portfolio. The defendants moved to dismiss, arguing among other things that the company’s losses were the result of a "worldwide economic catastrophe" and the plaintiffs’ claims were nothing more than "fraud by hindsight."

 

In denying the defendants’ arguments, Judge Sweet rejected this "global meltdown" arguments saying that "because the issue in this action is what the Defendants knew and when they knew it, a securities violation has been adequately alleged." 

 

Andrew Longstreth’s May 12, 2010 Am Law Litigation Daily article about the dismisal motion ruling in the E*Trade case can be found here. I have also added the E*Trade ruling to my running tally of subprime lawsuit dismissal motion rulings.

 

 

 

Reflection: Judge Vance is the eldest son of Robert Smith Vance, who served as a United States District Circuit Judge, first in the Fifth Circuit and later in the Eleventh Circuit. The elder Judge Vance is one of the few federal judges to be assassinated as a result of his judicial service. Judge Vance was killed by a mail bomb in 1989. Prosecutors later concluded that the bomb had been sent by a convicted criminal upset because the Eleventh Circuit had refused to expunge the conviction.

 

In memory of Judge Vance, the name of federal building and courthouse in Birmingham, Alabama as been changed to the Robert S. Vance Federal Building and United States Courthouse.

 

One side-effect from the oil slick spreading across the Gulf of Mexico following the blowout of the Deepwater Horizon oil rig, and a direct result of the massive economic and environmental damage it has caused, is the efflorescence of lawsuits from persons whose property or livelihood have been threatened or damaged by the spill. Given the magnitude of the damage and the extent of the ensuing litigation, it was perhaps only a matter of time before the expanding litigation wave came to include D&O claims too.

 

On May 7, 2010, a BP shareholder filed a shareholders’ derivative lawsuit (complaint here) against BP PLC, as nominal defendant, and 15 individual directors and officers, including Tony Hayward, BP’s CEO. The defendants also include Transocean Ltd. and related entities, the Deepwater Horizon’s rig owner; Cameron International Corp., which manufactured the blowout prevention devices that allegedly failed; and Halliburton Energy Services, which was installing cement casing on the well-head at the time of the explosion. The complaint also purports to name as defendants the third-party defendants’ insurers.

 

The complaint seeks recovery against the BP defendants for breach of fiduciary duty and corporate waste. The complaint alleges that despite numerous other prior safety and environmental concerns at BP the defendants "elected to cut costs, including safety and manufacturing expenditures in pursuit of profitable results, even lobbying regulatory authorities to "remove or decrease the extent of safety and maintenance regulation."

 

The complaint also asserts claims against the third-party defendants for contribution and constructive trust alleging that their misconduct was a "substantial factor in the disaster" and therefore they "should be held responsible for the effects of the disaster."

 

Among the damages to BP that the plaintiff alleges are the costs of $6 million per day that BP is spending to try to stop the leak and remediate its effects; BP’s required cleanup costs under federal and state statutory mandates; its exposure to lawsuits; as well as damage to BP’s reputation and good will, which as already resulted in a drop in BP’s share price.

 

There are a number of very interesting things about this lawsuit, particularly with respect to the claims against BP’s directors and officers.

 

The is that, in arguing that the BP board cannot objectively evaluate whether to bring the claims alleged in the complaint, the complaint explicitly references BP’s prior disasters, including the infamous 2005 Texas City, Texas refinery explosion and fire and the 2006 Prudhoe Bay oil spill. In particular this most recent complaint references the Prudhoe Bay shareholders’ derivative lawsuit filed against BP’s directors and officers, in which the defendants had (according to the latest complaint) agreed to "certain corporate governance changes at BP designed in part to prevent a recurrence of safety and maintenance problems at the company." (General background regarding the Prudhoe Bay lawsuit and its outcome can be found here.)

 

The Deepwater Horizon lawsuit complaint alleges that notwithstanding the commitment in the Prudhoe Bay litigation settlement agreement BP has "merely gone through the motions" to make the agreed upon changes, as a result of which the company has "not experienced one iota of improvement in its workplace and environmental safety." Elsewhere the complaint alleges that notwithstanding the severity of the safety concerns that led to this prior settlement that company has been "making purely cosmetic changes at the corporate level while ignoring the substance of the safety violations and the threat to" the environment as well as to "the Company’s own survival as a going concern."

 

Second, as another argument why demand on the current board should be excused, the complaint also cites the massive wave of litigation that has already been filed against BP in the wake of the Deepwater Horizon disaster. The complaint argues that the BP defendants "cannot reasonably be expected to defend BP itself against allegations of misconduct in [the other lawsuits] while simultaneously pursuing these claims" in the derivative suit "for the very same or very substantially related misconduct." Given the vast number of claims, the complaint contends, "it is not possible for the Director Defendants in this case…to impartially consider whether to bring these claims."

 

Third, the complaint, though filed in Louisiana, expressly references the standards identified in the British Companies Act of 2006, particularly the Act’s requirement in Section 172 that corporate boards ensure that their companies conduct operations with due regard for "the impact of the company’s operations on the community and the environment." This express reference to U.K. law is interesting given that the case is filed in Louisiana and highlights what may be one fundamental problem the plaintiff may face, as discussed further below.

 

Fourth the plaintiffs’ bid to join the third-party defendants’ insurers seemingly represents an attempt to take advantage of the fact that Louisiana is one of the few jurisdictions permitting tort claimants to bring so-called "direct actions" against their tortfeasor’s liability insurers.

 

Though the plaintiff’s complaint invokes the full-throated rhetoric of righteous outrage, it nevertheless faces certain hurdles that could shut the case down before it gets started.

 

The first of course is that the plaintiffs have not made the requisite demand on BP’s board to bring these claims directly on the company’s behalf. As noted above, the plaintiff has argued that due to prior litigation against BP and current Deepwater Horizon-related litigation now emerging, demand should be excused.

 

Setting aside the question whether or not demand is excused, there are other potential threshold hurdles. One that is amply illustrated in the complaint’s reference to the U.K. law noted above which is that BP is a U.K. corporation organized under the U.K.’s laws. BP will undoubtedly attempt to argue that the "internal affairs doctrine" dictates that the U.S. court should decline jurisdiction, so that these claims involving a U.K. corporation and U.K. law may be heard in U.K. courts.

 

The "internal affairs doctrine" was argued successfully by another U.K. corporation, BAE Systems, which successfully had derivative litigation in the U.S. arising from the company’s bribery scandal dismissed in reliance on the "internal affairs doctrine." Indeed, BP itself unsuccessfully raised similar arguments in the Prudhoe Bay derivative litigation.

 

The plaintiffs’ complaint attempts to anticipate these arguments. The complaint is full of explicit references to the myriad vital contacts between BP and the U.S. Among other things the complaint emphasizes that 39% of BP’s shareholders are located in the U.S. and that its energy production and capital expenditures are larger in the U.S. than in any other country. The plaintiff is clearly cueing up an argument that the circumstances uniquely affect the U.S. and its interests and therefore the case comes within an exception to the doctrine.

 

Where the BP derivative litigation may ultimately head remains to be seen. At a minimum, BPs directors and officers face the prospect of enormous expense defending against this litigation, and significant potential liability.

 

It should not be overlooked that this lawsuit represents yet another example of a company domiciled outside the United States facing a D&O claim in the U.S. courts. The susceptibility of non-U.S. companies to U.S.-based D&O litigation is a topic of recurring interest, among other reasons because of the securities law issues regarding the extraterritorial jurisdiction of the U.S. securities laws, of the kind raised in the National Australia Bank case now pending before the U.S. Supreme Court.

 

These questions of non-U.S. companies’ exposure to U.S. claims are also a topic of recurring interest to D&O insurers. The most obvious concern to insurers is the extent to which non-U.S. companies face threats of D&O litigation in the U.S. and therefore should be paying D&O premiums commensurate with the existence of the U.S.-based litigation exposure.

 

My final observation about the new BP lawsuit is that while I was reading the complaint I had the premonition that the BP derivative complaint may represent the precursor of the as-yet-unfiled but undoubtedly soon-to-arrive first D&O lawsuit based on global climate change related allegations.

 

The BP complaint’s allegations about the extent of the environmental and economic damage from the Deepwater Horizon oil spill, as well as the reputational harm to the company, and about management’s failure to anticipate and prevent the alleged harm, both to the spill victims and to the company, may prefigure the way the first global climate change lawsuit will be written (up to and including the tone of unrestrained moral outrage). The only thing missing is some event – or perhaps some alleged disclosure violation – and the existing environmental disaster derivative lawsuit template will be adapted for new global climate change derivative litigation.

 

Whether or not the litigation template is adapted to global climate change, the threat of environmentally-related D&O litigation undoubtedly will persist. Indeed, heightened concern and anxiety in the wake of the Deepwater Horizon disaster will only make this type of litigation more likely in the future.

 

A good overview of the litigation environment surrounding the oil spill and the general implications for the insurance industry can be found in a May 7, 2010 memo from Laura Foggen and Benjamin Theisman of the Wiley Rein law firm entitled "The Gulf Oil Spill: Considerations for Insurers" (here).

 

A May 10, 2010 Bloomberg article about the new BP derivative lawsuit can be found here.

 

Let Us Remember Justice Stevens – and The Bee, Don’t Forget the Bee: Everyone here at The D&O Diary is very interested in President Obama’s nomination of Solicitor General Elena Kagan to the U.S. Supreme Court. Press coverage in coming months undoubtedly will be filled with stories concerning her nomination and the confirmation process. Though attention is appropriately focused on the nominee, we think it is also appropriate to pause and consider the Justice she hopes to replace, John Paul Stevens.

We can think of no better place to being that in Ian Frazier’s piece, "Remember Justice Stevens" in this week’s issue of the New Yorker (here). Be forewarned, you may start to suspect that the article is going off the tracks right about the point where the author states: "A few minutes passed before Justice Stevens became aware of the bee under his shirt, just at the base of his neck."

 

It remains to be seen whether the FDIC will pursue civil actions against former directors and officers of failed banks, but it has made it clear that it will file criminal actions in cases where it suspects fraud. According to news reports, on May 7, 2010, the U.S. Attorney of the Northern District of Georgia unsealed indictments against two former officers of the failed Integrity Bank as well as against a real estate developer whom the officials said obtained $80 million in improper loans from the bank.

 

Douglas Ballard, the bank’s former Executive Vice President in charge of client relationships and a member of the bank’s board of directors, and Joseph Todd Foster, the bank’s former Executive Vice President for Risk Management, are charged with conspiracy, insider trading and bank fraud. The developer, Guy Mitchell, is charged with conspiracy and bribery.

 

The indictment alleges that Mitchell and companies he controlled obtained more than $80 million in business loans from Integrity Bank. He allegedly obtained the loans under false pretenses and deposited nearly $20 million in a checking account used for personal expenses, included over $1.5 million spent on a private island in the Bahamas. Later loans were used to pay interest on earlier loans.

 

The indictment also alleges that Mitchell paid Ballard, who authorized the loans, over $290,000 over a nine month period (half in cash and half in a cashier’s check) as a reward for Ballard’s assistance.

 

Ballard and Foster are also alleged to have committed securities fraud by engaging in insider trading. They are alleged to have sold all of their shares based on inside information (specifically, with knowledge of the bank’s problems with Mitchell’s loans).

 

Many of the news reports about the indictment have highlighted the fact that Integrity Bank had been founded with a faith-based theme. According to the Atlanta Journal Constitution (here), bank employees regularly prayed before meetings and in bank lobbies with customers.

 

The FDIC took control of the bank in August 2008. The Atlanta Journal Constitution article quotes the U.S. Attorney for the Northern District of Georgia as saying that the alleged fraud "was substantial contributing factor to the collapse," adding that "more than $80 million was given away from a dirty insider who was taking payoffs from the developer. That’s more that the average bank has had to deal with."

 

The Wall Street Journal (here) also quotes the U.S. Attorney as saying that "We are continuing to investigate and potentially other officials could be charged."

 

Statements by agency officials suggest that this prosecution may not be an isolated event. The indictment reportedly was the result of an interagency collaboration that included the FDIC’s Office of Inspector General. News reports quote the FDIC’s Inspector General as saying that "we are particularly concerned when senior bank officials, who are in positions of trust within their institutions, are alleged to be involved in unlawful activity. Prosecutions of individuals and entities involved in criminal misconduct maintain the safety and soundness of the Nation’s financial institutions."

 

The FDIC had already demonstrated substantial interest in claims involving Integrity Bank. As I discussed in a prior post (here), the FDIC intervened in the derivative lawsuit that had been brought by the bankruptcy trustee of the bank’s holding company against four former directors and officers of the holding company and the bank. The court granted the FDIC’s motion to intervene and also granted the FDIC’s motion to have the trustee’s claims dismissed, holding that under FIRREA the agency had the exclusive right to pursue claims on behalf of the bank. Basically, the FDIC made it clear that if anybody is going to pursue claims against the former officers, it is going to be the FDIC.

 

I had interpreted the FDIC’s moves in the bankruptcy trustee’s lawsuit as evidence that the FDIC intended to pursue its own claims against the former officials of Integrity Bank. But I was expecting civil claims; I certainly did not forsee this criminal prosecution. The FDIC may yet pursue civil claims as well. But it is nevertheless interesting that the FDIC is going ahead with criminal prosecutions but not yet pursuing its own civil actions, either in connection with Integrity or really any other failed banks.

 

Special thanks to the several readers who sent me links to news articles about the Integrity indictment.

　

Meanwhile the Investor Lawsuits Continue to Emerge: While we all wait to see that whether the FDIC will unleash a flood of failed bank claims as it did during the S&L crisis, the failed banks’ aggrieved investors are continuing to file their own claims against the directors and officers of the failed institutions.

 

The latest of these investor lawsuits is the securities class action lawsuit filed on May 7, 2010 in the Central District of California against certain former directors and officers of First Regional Bancorp, the holding company for First Regional Bank, a Los Angeles based bank that regulators closed on January 29, 2010. According the plaintiffs’ attorneys’ May 7 press release (here), the defendants "caused the Company to disseminate financial statements that were not fairly presented in conformity with Generally Accepted Accounting Principles and were materially false and misleading, and failed to make complete and timely disclosures concerning certain actions taken by regulators."

 

The First Regional lawsuit follows several other recent securities lawsuits that have involved failed banks. For example, on April 15, 2010, investors filed a securities lawsuit in the Western District of Washington against Frontier Financial Corp., the holding company of Frontier Bank, and certain of its directors and officers. Regulators closed Frontier Bank on April 30, 2010.

 

There have also been a number of securities lawsuits filed against other troubled banks, including Sterling Financial, Smithtown Bancorp and Haven Trust Bancorp.

 

In addition to securities class action lawsuits, investors are pursuing a variety of other kinds of claims against former directors and officers of failed banks, as illustrated, for example, by the recent action for negligent misrepresentation filed against the former officials of the failed Alpha Bank and Trust, about which refer here.

 

At this point, it seems well-established that failed bank investors intend to pursue these kinds of claims, although whether they will succeed and produce value for the claimants remains to be seen. My recent post discussing plaintiffs’ dismissal motion record in these kinds of cases can be found here.

 

As a result of series of legal developments, securities class action lawsuits in Australia have become have become increasingly common in recent years, and signs are that these trends will continue, according to a comprehensive study of Australian securities class action litigation issued on May 7, 2010 by NERA Economic Consulting.

 

The report can be found here, and NERA’s May 7 press release can be found here. (Hat Tip to Adam Savett of the Securities Litigation Watch blog, who has a post about the NERA study here).

 

Although the Australian laws permitting securities class action litigation have been in place since 1992, there were only two cases filed prior to 2000. There were a total of five cases filed during the years 2000 to 2003, and the filings began to increase steadily during 2004 and thereafter. There were a record number of cases filed in 2009, when six securities class action lawsuits were filed. There were a total of 22 securities class action lawsuits filed during the period 2004 to 2009.

 

A number of factors have contributed to the growing numbers of lawsuits. The first is that, according to the NERA study, "following the high-profile collapse of a number of companies in the early 2000s … shareholders have demonstrated that they are increasingly willing to use class actions as a tool to protect themselves from harmful conduct, and to punish offenders."

 

In addition, there have been several key case law developments that have removed some impediments, including decisions clarifying that shareholders can seek damages when their loss is distinct from any loss suffered by the company, and other decisions clarifying the rights of shareholders suing for damages against companies that are under administration.

 

However, perhaps the most significant development behind the increase in securities class action litigation in Australia is the "emergence of commercial litigation funding." Because of the prohibition against contingency fees, as well as the risks of costs awards against unsuccessful litigants, there were substantial financial barriers against pursuing this type of litigation.

 

Seventeen out of the 24 Australian securities class action lawsuits that have been filed since 2004 have been financed by a commercial litigation funder. The Australian commercial litigation funding business is dominated by IMF (Australia) Ltd., the first publicly listed litigation funder in Australia. IMF has financed 14 securities class action lawsuits and has proposed financing in an additional three suits that have not yet been filed. Though IMF dominates, according to the NERA study, a number of new firms have recently entered the market.

 

(Readers who, like me, are fascinated by this concept of litigation funding may want to have a look at IMF’s website, linked above.)

 

The two primary causes of action in Australian securities class action lawsuits are "contraventions of the continuous disclosure rules" and alleged violations of the laws prohibiting misleading and deceptive conduct. A number of suits also allege breaches of fiduciary trust. The two most common allegations, asserted in 52% of cases, are inaccurate earnings guidance and improper accounting.

 

Despite the dominance of the materials industry in the Australian economy, suits against mining or other companies represent only 14% of all cases filed. Actions brought against issuers in the diversified financial, insurance and real estate industries account for slightly more than half of all filings.

 

Because so many of the securities lawsuits have been filed in recent years, only a small number of all suits have been resolved. Of the 12 that were resolved as of December 2009, eight were settled, although all five of the resolved cases that were filed after 2003 were settled. The NERA report suggests that the litigation funding arrangements may have contributed to this trend toward negotiated resolutions, as the litigation funders are likely to "promote the selection and subsequent filing of actions that are stronger and for which a greater proportion of potential class members have signed a funding agreement."

 

Though Australian securities class action lawsuit filings have increased in recent years, they are many fewer securities lawsuit filed there than in the United States even allowing for the differences in size of the two countries’ economies. The NERA report comments that the class action filing levels in the Australia are "broadly similar to the level seen in Canada, once adjusted for the respective size of each economy."

 

The report concludes with the observation about Australian securities class action lawsuits that "with a number of recent common law developments having resolved many areas of uncertainty, it is likely that the rate of growth of filings evident since 2004 wil continue into the future."

 

NERA is of course well known for its periodic studies of U.S. securities class action lawsuits. Their new study of Australian class action lawsuits is the third in a series of studies concerning securities class action lawsuit litigation outside the U.S., following on its studies concerning securities litigation in Canada (refer here) and Japan (refer here).

 

More About the Schwab YieldPlus Securities Class Action Lawsuit Settlement: In an earlier post (here), I reviewed the $200 million settlement in the Schwab YieldPlus subprime related securities class action lawsuit. As noted at the time, the settlement did not resolved the related state law claims that the plaintiffs had filed.

 

On May 5, 2010, the Charles Schwab Company announced (here) that it had resolved the remaining state law claims as well, in exchange for an agreement to pay an additional $35 million, brining the total value of the Schwab YieldPlus settlement to $235 million. I have adjusted my table of subprime-related securities lawsuit case resolutions accordingly.

 

Farewell Ernie Harwell: Everyone here at The D&O Diary was saddened by the news earlier this week of the death of Hall of Fame baseball announcer for the Detroit Tigers, Ernie Harwell. One of my fondest memories from my three years at University of Michigan Law School is of listening to radio broadcasts of Tiger games, and of Harwell’s friendly, welcoming voice bringing the games alive. Harwell is perhaps better known for his signature home run calls ("That one is long gone!), but I will always remember the way he began games by saying "Its another great day for Tiger baseball." It was always a great day for Tiger baseball when Harwell was in the booth.

 

Ernie, we will miss you.

 

Although some noteworthy settlements from the subprime-related securities class action litigation wave have started to accumulate (refer for example here), there are still some impressive settlements coming in from the prior scandal.

 

In the third largest options backdating-related securities class action lawsuit settlement, Maxim Integrated Products has agreed to settle the claims against all defendants in the options-related securities suit pending against the company for a payment of $173 million. According to the company’s May 5, 2010 press release (here), the after tax cost to the company from the settlement, which is still subject to documentation and court approval, would be $110 million.

 

As detailed in a prior post (here), on February 6, 2008, plaintiffs’ lawyers announced (here) that they had initiated a securities class action lawsuit in the United States District Court for the Northern District of California against Maxim Integrated Products and certain of its directors and officers. The lawsuit relates to Maxim’s January 17, 2008 announcement (here) that, as a result of its Board’s special committee’s investigation of the company’s stock option practices, the company would be restating its financial statements to record non-cash, pre-tax charges of between $550 and $650 million for additional stock-based compensation expense. The company also announced that investors should not rely on the company’s financial statements for the fiscal years 1997 through 2005 and corresponding interim reporting periods through March 25, 2006.

 

In order dated July 16, 2009 (here), the court denied in part the defendants’ motions to dismiss, but perhaps more telling with respect to the timing and size of the securities lawsuit settlement, on April 23, 2010, following an eightday criminal trial, Maxim’s CFO Carl Jasper was found liable for securities fraud related to the backdating, as noted in this April 26, 2010 article by Zusha Elinson in The Recorder, here.

 

The SEC had previously sued the company and its CEO in an options backdating enforcement action (about which refer here). The CEO, Jack Gifford, who settled the SEC charges for a payment of $800,000 has since passed away.

 

The $173 million Maxim Integrated Product settlement is exceeded in dollar value among options backdating related securities lawsuit settlements only the $925.5 million total settlement of the UnitedHealth Group options-related securities lawsuit and the $225 million Comverse settlement. My complete tally of options related settlements and other case resolutions can be accessed here.

 

Adam Savett of the Securities Litigation Watch has also been tracking the options backdating related securities lawsuit settlements, and in his most recently updated tally (here), he reported that of the 39 total options backdating related securities class action lawsuits, 35 (not counting Maxim) have been resolved, with 8 dismissed and 27 settled (again, not including Maxim). Prior to the Maxim settlement, the 27 options backdating related securities class action lawsuits that had settled had been settled for an aggregate total of $2.15 billion and an average settlement of $79.7 million.

 

With the Maxim settlement, the aggregate is now $2.325 billion, and the average has also increased, as Savett’s forthcoming revised calculations undoubtedly will show. UPDATE: Savett has indeed updates his analysis, here. The updated average is $79.7 million, but if the outsized UnitedHealth Group settlement is excluded from the calculation, the average drops to $51.88 million. The median settlement is $16 million, and $14 million if the United Health Group settlement is excluded.

 

The financial reform bill now working its way through Congress will include an amendment to the securities laws allowing private civil actions for aiding and abetting liability, if an amendment Senator Arlen Specter proposed on May 4, 2010 is part of the final bill. According to the Blog of the Legal Times (here), in conjunction with a Senate Judiciary subcommittee meeting and on behalf of himself and 11 other senators, Specter introduced an amendment to the financial reform bill that would impose liability on "any person that knowingly provides substantial assistance to another person in violation of this title." The proposed amendment can be found here. (Hat Tip: Point of Law blog.)

 

Although the securities laws currently allow for the SEC to pursue aiding and abetting enforcement actions, the Supreme Court held in the Stoneridge case that there is no private right of action for aiding and abetting liability under the federal securities laws.

 

As discussed at greater length here, in July 2009, Senator Specter introduced S. 1551, "The Liability for Aiding and Abetting Securities Violations Act of 2009," which proposed to legislatively overturn Stoneridge. Although Committee hearings were held in connection with that bill, it had not made it out of the Committee. In April 2010, Representative Maxine Waters separately introduced a House version of essentially the same bill, H.R. 5042, which was referred to the House Judiciary Committee.

 

Though there are now alternative versions of the aiding and abetting liability bill in each of the two houses of Congress, neither bill had progressed out of committee. Had the bills made it out of committee on their own, they undoubtedly would have occasioned debate and discussion. Specter’s proposed amendment to the financial reform bill, which is substantially similar to the previously introduced stand-alone bills, potentially could provide a short cut way around that likely debate and discussion.

 

It remains to be seen whether Senator Specter’s initiative to add the aiding and abetting amendment to the financial reform bill will ultimately become a part of the bill that is put before the Senate. But if the amendment is incorporated into the financial reform bill, it would only be one small part of a massive and controversial piece of legislation that will occasion intense partisan debates on a wide variety of issues, most of them much higher profile that than those involved in Specter’s amendment.

 

To be sure, passage of the financial reform bill itself is by no means assured. But debate on the bill will undoubtedly focus on the proposed systemic reforms embodied in the legislation. It is unlikely that Specter’s proposed amendment, if included in the bill, would itself occasion extensive additional debate or even materially affect the ultimate passage of the bill. Indeed, the aiding and abetting liability provision arguably has a greater chance of being enacted as an accessory to a larger reform bill than it might have on its own.

 

Were the provision to be enacted into law, either on its own or as part of a larger piece of legislation, it could represent a significant increase in the potential liability exposure under the securities laws for accountants, lawyers, and other professionals who might be in a position to be alleged to have provided "substantial assistance" to a primary violator.

 

But the increase in potential liability exposure is not limited just to these outside professionals. As I discuss in greater length in my earlier post on S. 1551, the circle of persons whose liability exposure potentially could be increased by the enactment of the proposed aiding and abetting liability provision includes other public companies and their directors and officers.

 

Indeed, in the Stoneridge case itself, the defendants who were alleged to have aided and abetted Charter Communications were vendors who did business with Charter and who allegedly engaged in "round trip" transactions with Charter.

 

In other words, were Senator Specter’s bill to pass, it would not only greatly expand the potential securities liability exposure for companies’ outside professionals. It would also expand the potential securities liability exposure of all companies that transact business with public companies.

 

Were this aiding and abetting provision to be enacted into law, it would have significant implications for insurers that provide professional liability insurance for the outside professional gatekeepers. It could also have potentially significant implications for D&O insurers as well, and as I also discussed in my prior post, the definition of the term "securities claim" used in D&O insurance policies could become particularly important. The critical issue will be whether the term is defined to restrict "securities claims" to claims involving securities of the insured company, or whether the term is defined to include any alleged violation of the securities laws.

 

Finally, it should not be overlooked that the universe of companies that might potentially become the target of an aiding and abetting claim is not limited just to other public companies. Any company, including even private a private company, that does business with a public company might potentially be alleged to have provided "substantial assistance" to the public company’s securities law violations.

 

For all of these reasons, the legislative progress of the aiding and abetting liability provision should be of keen interest to the entire professional liability insurance community, including the D&O insurance community. The possibility of the provision’s inclusion in the financial reform bill will make this a particularly complicated issue to monitor.

 

Radian Group Subprime Securities Lawsuit Dismissed Again, This Time With Prejudice: As discussed at greater length here, on April 9, 2009, Eastern District of Pennsylvania Judge Mary McLaughlin granted the motion to dismiss the subprime related securities complaint that had been filed against Radian Group and certain of its directors and officers, holding that plaintiffs had failed to adequately allege scienter. However, the dismissal was without prejudice. The plaintiffs filed an amended complaint and the defendants renewed their motions to dismiss.

 

In a May 3, 2010 order (here), Judge McLaughlin again granted the defendants’ motions to dismiss, this time with prejudice.

 

The lawsuit related to an affiliate company in which Radian was a minority owner, Credit Based Servicing & Asset Securitization (C-Bass), an investor in the credit risk of subprime residential mortgages. Radian was a joint venturer in the affiliate with MGIC, with which Radian also had an agreement to merge.

 

The plaintiffs alleged that the defendants made false and misleading statements about C-Bass’s profitability and liquidity position and thus, the value of Radian’s investment in C-Bass. The statements allegedly inflated Radian’s share price, which led to losses to shareholders when Radian announced an impairment of its investment on July 30, 2007. The turbulence surrounding the C-Bass affiliate may also have undermined the pending merger with MGIC. Further background about the case can be found here.

 

In order to try to overcome the hurdles that led to the dismissal of their prior complaint, the plaintiffs amended complaint added more information regarding the defendants’ alleged knowledge of C-Bass’s troubles; more details regarding the merger of Radian and MGIC (which transaction, it was alleged, Radian was motivated to make motivations in order to preserve); and more details to bolster insider trading allegations.

 

Judge McLaughlin concluded that "the plaintiffs have failed to sufficiently amend their complaint to allege facts that give rise to a strong inference of scienter."

 

An Impertinent Remark About the Radian Group Decision: In addition to the actual holding itself, another aspect of Judge McLaughlin’s ruling is also of interest. With regard to the plaintiffs’ additional allegations about the defendants’ supposed knowledge of C-Bass’s problems, Judge McLaughlin noted instead of supporting a finding of scienter, "they serve to establish that the market at large knew of the subprime industry’s downward trend."

 

She then added "Indeed, this is not the first action to arise from the subprime mortgage crisis, nor the first to be dismissed." For the latter point she cited a number of other subprime securities suit dismissals (including the dismissal of the separate C-Bass related securities lawsuit filed against MGIC, about which refer here).

 

Judge McLaughlin is indeed correct that there have been many other subprime related lawsuits filed – over 200 by my count. In addition, as has been well-documented on this blog, there have been quite a number of dismissal motions granted in these cases. But a review of the full tally of dismissal motion rulings, which can be accessed here, shows that there also have been quite a number of dismissal motion denials, in addition to the rulings where the motions were granted.

 

Given that many motions have been denied, the fact that the motions have been granted in the cases she cites lacks any particularly persuasive effect (except of course with reference to the MGIC case, which undeniably is relevant). Simply referring to a few of the dismissals without referring to the motion denials represents an incomplete picture. Given the mix of case rulings, the fact that there have been some dismissals, in and of itself, does not seem particularly conclusive of anything.

 

Rating Agencies Lose Another Dismissal Motion: According to a May 4, 2009 Bloomberg article (here), a California state court judge has denied the motions of the rating agency defendants to dismiss the negligent misrepresentation claims that had been brought against them by the California Public Employees Retirement System (Calpers).

 

According to the article, Calpers had sued the rating agencies, alleging that the "faulty risk assessments on structured investment vehicles caused $1 billion in losses." Among the investment vehicles to which the rating agencies had given their highest ratings and that are the subject of the case is Cheyne Financial, which is also the subject of a separate lawsuit pending in federal court in Manhattan, in which Judge Shira Scheindlin had also denied the rating agencies’ motions to dismiss (about which refer here).

 

As detailed in Andrew Longstreth’s May 4, 2010 article on AmLaw Litigation Daily about the latest ruling, the California judge rejected the rating agencies’ argument that their rating opinions represented protected speech under the First Amendment. As Longstreth points out, the plaintiffs may be believe they now have a road map to overcoming this legal hurdle, in part due to Judge Scheindlin’s rulings in the New York case.

 

According to statistics compiled by the American Bankruptcy Institute, over 60,000 businesses filed for bankruptcy in 2009, the highest annual number of business-related bankruptcies since 1993. By way of comparison, the 2009 business bankruptcy filing levels were nearly 200% greater than in 2006. All signs are that these bankruptcy filing levels have continued unabated this year.

 

One of the frequent accompaniments of a corporate bankruptcy filing is the initiation of litigation against the directors and officers of the failed company. This litigation often leads to complex questions of D&O insurance coverage. As discussed in the April 2010 paper from ACE Insurance entitled "Financial Crisis: Bankruptcy Implications for D&O Insurance" (here), "bankruptcy poses the greatest threat of personal financial risk and the most complicated [D&O Insurance] coverage issues."

 

Yet there may be no time when D&O insurance is more important than in bankruptcy. As Paul Ferrillo of the Weil Gotshal firm notes in his April 30, 2010 memorandum "Directors and Officers Liability Insurance in Bankruptcy Settings – What Directors and Officers Really Need to Know" (here), "when a Corporation files for bankruptcy, the D&O policy becomes one of the few protections a director or officer has against lawsuits and claims targeting his or her personal assets."

 

Because, as the ACE report notes, "bankruptcy has the potential to dramatically complicate D&O coverage issues," it is important at the time the D&O insurance is put in place that these potential issues are taken into account and that the insurance is structured to try to reduce the likelihood of these complications arising in the event of a later bankruptcy.

 

The Weil Gotshal memo outlines a number of critical steps the company can take in structuring its insurance to address these bankruptcy-related concerns, including the following.

 

First, in order to avoid the possibility that the insurance is unavailable to defend individuals in bankruptcy related claims due to a policy rescission based on application misrepresentations, the company should incorporate into its insurance program a provision that the Side A coverage (protecting individuals for nonindemnifiable claims) is not rescindable. This provision specifies that the Side A coverage cannot be rescinded and will require the D&O carrier to begin advancing defense costs immediately.

 

Second, the company’s program should incorporate a Priority of Payments provision that, as described in the Weil Gotshal memo, "created a clear path that allows for the contemporaneous payment of defense costs for directors and officers." The provision specifies that payment of individuals’ defense expense or other loss costs takes priority over those of any insured entity. As the memo notes, this provision "limits the uncertainty of whether a D&O Policy will be immediately available to fund the defense costs of directors and officers who are embroiled in litigation when a company files for bankruptcy."

 

Third, the policy exclusion precluding coverage for claims against insureds brought by other insureds (known as the "insured vs. insured exclusion) should be amended to carve back coverage to ensure that the policy exclusion is not applied to preclude coverage for claims brought by "a debtor in possession, chapter 11 trustee, creditors, bondholders, all committees and other bankruptcy constituencies."

 

The Weil Gotshal memo includes a number of other policy prescriptions which, while described within the context of bankruptcy-related concerns, actually are critically important regardless whether or not a company might eventually wind up in bankruptcy, including the following.

 

First the company should ensure that there is "full severability" in connection with the policy application, so that any insured person’s knowledge of application misrepresentations "should not affect coverage for directors and officers who were unaware" of the misrepresentations.

 

Second, with respect to the D&O policy’s conduct exclusions (excluding, for example, coverage for criminal or fraudulent misconduct) should be drafted so that they are "triggered only upon a final adjudication of the prohibited …conduct."

 

Third, it is critically important for companies to attend to questions of limits adequacy and policy structure. Complex claims, of the type that often arise in bankruptcy but that can also arise without regard to bankruptcy, have the dramatic potential to substantially erode or even exhaust available insurance. The amount and structure of insurance acquired should take this dramatic possibility into account.

 

In particular, with respect to policy structure, board members will want to determine whether the company’s insurance program includes so called Excess Side A insurance or even Excess Independent Directors Liability Insurance (IDL). As the Weil Gotshal memo notes, when D&O claims are filed, the CEOs and CFOs "generally use up most of the coverage" in the Company’s D&O insurance program, "potentially leaving the independent directors with insufficient coverage to resolve the claims against them." Even though IDL policies "are the most underutilized insurance policies," it may be in the board’s interest to purchase IDL insurance as added protection in the event of significant claims against company inside management.

 

All of these concerns underscore the importance of taking all of these issues into account at the time the insurance is put in place, which in turn highlights the importance of having a knowledgeable and skill insurance professional involved in the insurance acquisition process. As the Weil Gotshal memorandum notes, "a good insurance broker may be able to assist in finding alternative primary carriers or alternative coverage solutions that will better satisfy a Corporation’s needs."

 

The complex D&O insurance coverage issues that can arise in the event of bankruptcy related claims are a recurring concern that I have previously explored in related posts, most recently here.

 

Putting Options Backdating Into Perspective: In light of the vivid events in the global financial marketplace in the last couple of years, the options backdating scandal seems both distant and even trifling, at least relatively speaking. However, as Professor Peter Henning points out in an April 30 post on the Dealbook blog (here), the government’s record in prosecuting options backdating may provide important clues to the way the government may proceed in connection with the current financial crisis.

 

As Henning notes, the options backdating results on the criminal side "were decidedly mixed," with a few trial victories but also with "notable acquittals." In particular, Henning notes, "the cases turned out to be much more difficult to win because the conduct had neither the visceral appeal nor the impact" that prior corporate scandals had. No company’s survival was threatened and the options practices involved accounting and tax issues were murky, allowing defendants to argue successfully in some cases that they did not believe they engaged in wrongdoing.

 

Henning suggests that "the experience with options backdating prosecutions may be leading prosecutors to adopt a much more cautious approach to cases involving complex financial transactions in which the accounting rules are less than clear." He concludes that "the options backdating cases show how difficult it is to win convictions against senor executives, even when they are directly involved in the transactions," as a result of which "we will see few, if any, prosecutions from the recent financial turmoil when executives can point to the markets as the reason for any harm suffered by their companies."

 

There is Absolutely No Cause for Alarm: Tom Kirkendall on the Houston’s Clear Thinkers blog recently linked to the classic Monty Python Skit, "How to Irritate People: Airplane" which reminded me in certain air travel woes to which I have been subjected. Please remain comfortably seated while you watch this video, and be certain to reassure yourselves that no one would deliberately set out to irritate anyone like this, now would they?

 

https://youtube.com/watch?v=xJSey8HRUhU%26hl%3Den_US%26fs%3D1%26rel%3D0

The FDIC’s closure of troubled financial institutions has recently taken on a state-based theme. Last week, on April 23, 2010, the FDIC closed seven banks, all of which were in the state of Illinois. This past Friday night, on April 30, 2010, when the FDIC again closed seven banks, the list included three from Puerto Rico, as well as two from Missouri. The FDIC’s Failed Bank List can be found here.

 

With the closure of seven banks on two successive Friday nights, the pace of bank failures has definitely picked up. The most recent round of closures brings the 2010 year to date number of bank failures to 64. The 2010 closure rate is well ahead of last year’s pace, when the FDIC closed a total of 140 banks. The FDIC did not close its 64th bank during 2009 until July 24th. There have been 229 bank failures since January 1, 2008.

 

The 23 banks closed in April 2010 is the second highest monthly total during the current round of bank failures, exceeded only by the 24 banks closed in July 2009. (By way of comparison, there were only 25 banks closed in all of 2008.)

 

The seven Illinois banks closed on April 23 brings the total number of Illinois bank failures to ten, the highest number for any state during 2010. The other states with the highest numbers of bank failures during 2010 are Florida (9), Georgia (7) and Washington State (6).

 

Though Illinois leads the 2010 bank failure tables, the state with the highest numbers of bank closures since January 1, 2008 is Georgia with 37 failed banks, followed by Illinois (32), California (26), Florida (25), and Minnesota (11).

 

There has definitely been a concentration of bank failures in certain states. However, the woes besetting banks are surprisingly widespread. 38 states (as well as Puerto Rico) have each had at least one bank failure since January 1, 2008.

 

The states without any bank failures since January 1, 2008 are: Alaska, Connecticut, Delaware, Hawaii, Iowa, Maine, Mississippi, Montana, New Hampshire, North Carolina, North Dakota, Rhode Island, Tennessee, Vermont, and West Virginia. There have been no failed banks in the District of Columbia either. (Readers who think they can discern the unifying factor that explains why these states have no failed banks are invited to add their explanations using the blog’s comment feature.)

 

The costs to the FDIC from these bank failures have been enormous. The cost to the FDIC’s Depositors Insurance Fund (DIF) from the April 2010 bank closures alone was $9.4 billion, the highest monthly total so far during the current bank failure wave.

 

The April 30 closure of Westernbank in Puerto Rico cost the DIF fund $3.31 billion, the third most costly closure in the current round. Only the July 11, 2008 closure of IndyMac ($8.0 billion) and the May 21, 2009 closure of BankUnited ($4.9 billion) were more costly to the fund.

 

Roughly three quarters of the banks that have failed so far this year have involved banks with assets under $1 billion. The 2010 failed banks involve a slightly higher proportion of larger banks; in 2010, about 26% of bank failures (17 out of 64) have involved banks with assets over $1 billion, compared to about 20% in 2009 (28 out of 140).

 

The 2010 bank closures have also involved a slightly greater proportion of the smallest banks. Thus, about 23% of the 2010 bank closures (15 out of 64) have involved banks with assets under $100 million, compared to about 17% of failed banks in 2009 (24 out of 140).

 

Vivendi lost the liability phase of the securities class action jury trial, and now it has lost a rearguard action to try to have French investors excluded from the U.S. investor class. According to press reports (here and here), Judge Jean-Claude Magendie of the Court of Appeals of Paris ruled on April 28, 2010 that Vivendi can’t block French investors from participating in the U.S. class action lawsuit.

 

The U.S. class action lawsuit involved the financial impact on the company from the $46 billion December 2000 merger between Vivendi, Seagram’s entertainment businesses, and Canal Plus. The plaintiffs contended that as a result of this and other debt-financed transactions, Vivendi experienced growing liquidity problems throughout 2001 that culminated in a liquidity crisis in mid-2002, as a result of which, the plaintiffs contend, Vivendi’s CEO Jean-Marie Messier and CFO Guillaume Hannezo　were sacked.

 

The plaintiffs contended that the between October 2000 and July 2002, the defendants misled investors by causing the company to issue a series of public statements "falsely stating that Vivendi did not face an immediate and severe cash shortage that threatened the Company’s viability going forward absent an asset fire sale. It was only after Vivendi’s Board dislodged Mr. Messier that the Company’s new management disclosed the severity of the crisis and that the Company would have to secure immediately both bridge and long-term financing or default on its largest credit obligations."　

 

The long-running case resulted in a January 2010 jury verdict against the company on all 57 counts, as discussed here. Damages are yet to be awarded.

 

In the French court action, Vivendi sought to reduce the number of investors who could claim an award from the class action lawsuit. According to Bloomberg (here), about two-thirds of the members of the U.S. plaintiff class live in France. The same article states that the French court noted the "serious ties existing" between the French company, French investors and the U.S.

 

Significantly, the court restricted its opinion to the question whether the French investors could participate in the action, and did not reach the question whether French courts would enforce any eventual award.

 

This latter question of enforceability is particularly critical in this case, as Judge Richard Holwell in his March 22, 2007 order certifying the class had included investors from certain countries (including France) and excluded investors from other countries (such as German and Austria) based on his assessment of whether or not the judgment of a U.S. court in a securities class action lawsuit would be enforceable in the various countries.

 

In an April 28, 2010 press release (here), Vivendi said that it "regrets that the Court of Appeal has decided not to make a ruling at this stage on the question of whether American class actions were in accordance with French public policy."

 

The press release also states that no judgment has been rendered in the U.S. court action, which the company intends to appeal.

 

In a March 1, 2010 press release (here), the company announced that it had created a reserve of 550 million euros ($723 million) "with respect to the estimated damages, if any, that might be paid to the plaintiffs." The company added that "the amount of damages that Vivendi might have to pay the class plaintiffs could differ significantly, in either direction, from the amount of the reserve."