When news of the federal government’s seizure of mortgage giants Fannie Mae and Freddie Mac became public, it became apparent that the government’s move was bad news for the holders of the companies’ common and preferred stock. 

 

The Wall Street Journal’s front page September 8, 2008 article (here) commented that the government rescue is "likely to leave a trail of billions of dollars in losses for stock holders, including some major banks" because, among other things, the new government overseers "will eliminate dividends on billions of dollars of common and preferred stock," moves that are expected to further drive down the companies’ share prices. In addition, if the government exercised certain warrant rights, the common shares "will be drastically diluted."

 

In light of these developments and considerations, Fannie Mae’s share price declined sharply on Monday September 8, 2008. The company’s share price, which had closed at $7.04 on Friday, September 5, 2008, closed on Monday at $0.73, a drop of approximately 90%. Even though Fannie’s shares had been beaten down prior to September 5, the share price decline on September 8 alone represents approximately a $7 billion market capitalization loss.

 

In addition, news reports about the government takeover (for example, here) suggested that Treasury officials brought in to review the companies’ accounting in connection with the government takeover found that the companies had been "playing games" with their accounting to meet reserve requirements.

 

Plaintiffs’ lawyers lost little time reacting to these events. After the close of markets on Monday afternoon, plaintiffs’ attorneys issued a press release (here) announcing that on September 8, 2008 they had filed a securities class action lawsuit in the Southern District of New York on behalf of persons who purchased the publicly traded securities of Fannie Mae during the period November 16, 2007 through September 5, 2008. A copy of the complaint can be found here.

 

Interestingly, even though over 98% of Fannie Mae shares are held by institutions, the named plaintiff in this initial complaint is an individual. The publicly available copy of the complaint does not include the number of shares the named plaintiffs holds, nor is a copy of the named plaintiff’s certification attached to the publicly available complaint. The Complaint names as defendants four current and former directors and officers of Fannie Mae. Doubtlessly due to the fact that the company itself is now in a government conservatorship, the company itself was not named as a defendant. The company’s market capitalization decline during the purported class period is over $40 billion.

 

According to the press release, the Complaint alleges:

On July 7, 2008, a financial analyst at Lehman Brothers published a report suggesting that Fannie Mae might need to raise as much as $46 billion in capital, causing the Company’s stock price to plummet 16% in a single trading day. Following that disclosure, former St. Louis Federal Reserve Board President, William Poole, suggested that Fannie Mae was nearly insolvent and The New York Times disclosed that the federal government was making plans to place the Company into a conservatorship. On July 13, 2008, the Treasury Department announced that it was making a temporary line of credit available to Fannie Mae and would purchase an equity stake if necessary to provide more capital. From July 7 through July 14, 2008, Fannie Mae’s stock price declined over 48%. Finally, on Sunday, September 7, 2008, in the biggest government bail out in U.S. history, federal regulators seized control of Fannie Mae.

The press release also states that according to the complaint, during the class period, the defendants concealed from the investing public that:

(a) the decline in the U.S. housing market rendered Fannie Mae undercapitalized; (b) Fannie Mae’s December 2007 capital raise did not meet its capital needs; (c) Fannie Mae’s May 2008 capital raise did not meet its capital needs; (d) although Fannie Mae had more capital than its regulator required, it did not have "surplus capital" as defendants claimed; and (e) Fannie Mae’s publicly disclosed financial results misrepresented the financial condition of the Company.

Although it does not seem to be relevant to the allegations in this lawsuit, it appears that the Housing and Economic Recovery Act of 2008 provided Fannie’s and Freddie’s directors some limited lawsuit protection. As reported in a September 8, 2008 post (here) on the Blog of the Legal Times, the statute provides that "the members of the board of directors of a regulated entity shall not be liable to the shareholders or creditors of the regulated entity for acquiescing or consenting in good faith to the appoinment of the Agency as conservator or receiver for that regulated entity." Given the allegations in the lawsuit, this provision is unlikely to provide much protection for the defendants in that lawsuit.

 

The government takeover of Fannie and Freddie is among the most significant events so far in the wake of the subprime meltdown, and certainly the most dramatic development since the collapse of Bear Stearns. Just as was the case following the Bear Stearns takeover, the overall market reacted very positively to the news of the government rescue of Fannie and Freddie. In light of the growing significance of these events for the U.S. economy, one can certainly hope that the worst is now behind us.

 

There are reasons to be concerned that there may yet be further consequences from the government’s takeover of Fannie and Freddie. The Journal article notes that commercial banks and thrifts hold "high concentrations" of Fannie and Freddie preferred shares. The article also reports that approximately 16 of the institutions that the Office of Thrift Supervision regulates had "a concentration in common or preferred shares of Fannie Mae and Freddie Mac that surpassed 10% of their Tier I capital." While the regulator hopes to develop "capital restoration plans" there could be further fallout in the banking and thrift industries.

 

The sudden and dramatic loss of these entities’ share prices has undoubtedly hit other institutional investors as well. We will be hearing in the weeks and months ahead where these losses landed.

 

And as if all of that were not enough, Bloomberg also reported on September 8, 2008 (here) that the government rescue represents a credit event that may force investors to settle credit default swap contracts protecting more than $1.4 trillion of Fannie Mae and Freddie Mac bonds, which may represent the largest settlement of its type. Losses could actually be slight if the bonds themselves trade at or close to par. But the mere fact of this development and its size demonstrates the breadth and complexity of the consequences from the government’s bailout. There undoubtedly will be other consequences, some of which may be significant and many of which may be as yet unforeseen.

 

Readers interested in a particularly good analysis of the government takeover will want to review Professor Davidoff’s September 8, 2008 post on his Dealbook blog (here). Among other things, Professor Davidoff’s post correctly forecast the arrival of the securities lawsuit. His post also contains a comprehensive list of completed, pending and contemplated government bailouts in connection with the current credit crisis.

 

Special thanks to a loyal reader for links to the Fannie Mae lawsuit press release and to the Bloomberg article regarding the credit default swaps.  

 

Run the Numbers: The new Fannie Mae lawsuit is actually not the first lawsuit to arise out of Fannie Mae’s recent woes. Last month, investors who purchased Fannie Mae shares in the company’s May 9, 2008 secondary offering filed a lawsuit in New York state court seeking damages under Section 12(a)(2) of the Securities Act of 1933. As I noted in my recent post (here) discussing this prior lawsuit, neither Fannie Mae nor any of its directors or officers were named as defendants in the state court suit; only the investment banks that underwrote the May 9 offering were named as defendants.

 

In any event, I have added the new Fannie Mae lawsuit to my running tally of the subprime and credit-crisis related shareholder litigation, which can be accessed here. With the addition of the Fannie Mae lawsuit, the current tally of subprime and credit crisis-related securities lawsuits now stands at 110, of which 70 have been filed in 2008.

 

Speaking of Subprime Litigation: The September 8, 2008 Financial Times had an interesting article (here) describing recent litigation brought by investors who lost significant money in connection with the collapse of structured investment vehicles (SIV). An August 26, 2008 Bloomberg article also discussing the litigation can be found here.

 

The articles describe in particular detail a lawsuit filed on August 25, 2008 by the Abu Dhabi Commercial Bank on behalf of itself and all others that between October 2004 and October 2007 invested in the SIV launched by Cheyne Finance plc. The SIV, which issued notes backed by subprime mortgages, collapsed last year. The lawsuit names as defendants Morgan Stanley, Bank of New York Mellon Corp., two units of the Moody’s rating agency, and Standard & Poor’s. The defendants are alleged to have mislead investors about the quality of assets the Cheyne vehicle bought and held.

 

The lawsuit specifically alleges fraud, negligent misrepresentation and unjust enrichment. The lawsuit alleges that the investment banks, motivated by fees based on the asset values in the SIV, misrepresented asset values. The investment banks are also alleged to have assisted in the selection of assets that went into the ill-fated SIV. Among other things, the SIV’s assets included mortgages originated by New Century Bancorp.

 

The complaint alleges that the rating agencies, which allegedly received three times the fees for rating the SIVs than they received for corporate ratings, were paid only if they provided an investment grade rating and only if the deal closed with that rating.

 

The  Financial Times article also describes a prior lawsuit brought on behalf of investors by Oddo Asset Management in connection with two SIV-lites, Mainsail and Golden Key. The Oddo suit claims that Barclays in conjunction with the two SIV-lites’ managers used the vehicles to buy impaired securities from the bank at inflated prices, using the vehicles "as dumping grounds for toxic assets that Barclays needed to quickly jettison." The Oddo lawsuit apparently also names the rating agencies as defendants in its lawsuit, alleging that the rating agencies "collaborated with their investment banking clients."

 

The Seeking Alpha blog has a very detailed and interesting article (here) describing in detail the purpose and function of SIVs and explaining the risks involved as well. It is clear that these vehicles carried a lot of risk and apparently a lot went wrong with them too.  The SIVs named in these lawsuits are far from the only vehicles that had problems. There may be many more of these kinds of lawsuits to come.

 

Call me pessimistic, but it seems to me that the subprime litigation wave has got a lot further to run yet.   

 

We are now well into the second year of the current subprime litigation wave, but the rulings on preliminary dismissal motions are still just trickling in. In the latest of the early returns, involving one of the earliest subprime securities lawsuits, Judge James T. Giles of the Eastern District of Pennsylvania in an opinion dated August 29, 2008 denied defendants’ motion to dismiss the securities lawsuit pending against home builder Toll Brothers and nine of its directors and officers.

 

A copy of the August 29 opinion can be found here. Background regarding the case can be found here.

 

According to the Amended Complaint (here), between December 9, 2004 and November 8, 2005, the defendants made several misrepresentations relating to the company’s "ability to open new active selling communities at the rate necessary to support its financial projections, traffic in its existing communities, demand for Toll Brothers homes, and the ability to continue its historically strong earnings growth." The Amended Complaint further alleges that despite "adverse developments" the company raised its earning projections, which allegedly inflated the company’s share price, facilitating the defendants’ sale of 14 million of company shares for proceeds of over $617 million.

 

The Amended Complaint also alleges that "within days" of the completion of the insider sales, defendants "shocked investors" in a series of disclosures between August and November 2005 revealing that traffic and sales were declining, as a result of which the company’s share price declined 43% from its class period high.

 

Judge Giles’s August 29 opinion is relatively brief and largely represents a statement of his conclusions rather than an explanation of his reasoning. Thus, he simply states that plaintiffs have adequately alleged material misrepresentations and omissions, and have adequately alleged that defendants’ forward-looking misrepresentations were "knowingly unreasonable" at the time made. He also states that plaintiffs have adequately alleged that the company’s forward-looking statements were not accompanied by sufficient cautionary language and were mixed with representations of current condition.

 

The Judge’s rulings with respect to the issues of scienter and loss causation are slightly more detailed and are also more interesting.

 

With respect to the issue of scienter, Judge Giles noted that "Plaintiffs have alleged that Defendants’ stock sales were unusual in scope and timing, and the court finds these insider allegations are pled with the particularity required by the PSLRA." As a purported "plausible opposing inference," the defendants contended that the purpose of their stock sales "was diversification of their investments." The court concluded that "a reasonable person would find that the inference of scienter is at least as strong as the opposing inference."

 

With respect to the issue of loss causation, the plaintiffs alleged that the defendants made four statements between August and November 2005 that revealed the truth about the company. The defendants contended that plaintiffs "inappropriately grouped" the alleged "revelations" together in an attempt to establish loss causation.

 

Judge Giles rejected the defendants’ argument, and found that the plaintiffs made two allegations with respect to loss causation that the court found to be sufficient: first, the plaintiffs alleged that each of the four revelations and subsequent stock price drops were actionable; and second the plaintiffs allege that "through these four revelations" defendants "gradually revealed the truth regarding their prior misrepresentations."

 

Because the bases of Judge Giles’s rulings are not detailed, his opinion is unlikely to be influential in other subprime-related securities cases, particularly since the magnitude and timing of the alleged insider trading clearly seems to have been an important factor. Judge Giles’s willingness to accept the plaintiffs’ allegations that the truth was "gradually" revealed as sufficient to satisfy loss causation pleading requirements could be more significant, as plaintiffs in cases in which there was no abrupt stock price drop often attempt to make similar "gradual revelation" arguments.

 

In any event, Judge Giles’s ruling joins the small collection of subprime-related securities lawsuit dismissal motion determinations, a list of which may be accessed here. Although among the small group of rulings dismissal motions have been both granted and denied, the motion denial in the Toll Brothers case comes after the two most recent rulings in the Standard Pacific (refer here) and NovaStar (refer here) cases, in which the dismissal motions were granted.

 

There are many more cases in which the dismissal motions are yet to be heard, but Judge Giles’s opinion in the Toll Brothers case is a reminder that even with the substantial arguments that defendants can make in reliance on Tellabs and Dura Pharmaceuticals, some cases will nevertheless survive motions to dismiss. At least based on the Toll Brothers ruling, the presence of significant insider sales may be a significant factor in producing that result.

 

A recurring D&O insurance coverage concern involves the question whether the standard pollution exclusion typically found in most D&O policies could preclude coverage for a securities lawsuit alleging pollution-related misrepresentations or omissions. An August 15, 2008 opinion (here) by a New Jersey intermediate appellate court addressed this issue squarely.

 

The New Jersey Superior Court Appellate Division per curiam opinion affirmed a trial court determination, in a coverage case arising out of a securities class action lawsuit alleging misrepresentation of contingent asbestos liabilities, that the "alleged pollution at issue was too attenuated from the damages arising from the alleged misrepresentations to trigger the pollution exclusion."

 

Background

The underlying case arose out of a series of complex corporate recapitalization, reorganization and merger transactions, as result of which Sealed Air Corporation acquired certain assets and liabilities previously held by W.R. Grace. In post-transaction statements, Sealed Air made representations concerning its contingent liability for asbestos-related claims retained by a spun-off subsidiary.

 

As a result of asbestos liability lawsuits against the spun-off subsidiary, the subsidiary sought bankruptcy protection. The bankruptcy court later determined that the corporate reorganization transaction represented a fraudulent conveyance. After the fraudulent conveyance ruling became public, Sealed Air’s stock price plunged.

 

Sealed Air shareholders initiated a securities class action lawsuit against the company and its directors and officers. Background regarding the securities lawsuit can be found here. The company sought coverage for its litigation costs from its D&O insurer. The D&O insurer denied coverage in reliance upon the pollution exclusion in its policy. The pollution exclusion precludes coverage, in pertinent part, for loss "based on, arising out of, or in any way involving: (a) the actual or threatened discharge, release, escape, seepage, migration or disposal of Pollutants."

 

Sealed Air filed a declaratory judgment action against the insurer. Following a trial in the coverage action, the trial court entered judgment in the company’s favor, requiring the insurer to advance the company’s securities litigation defense expense. The insurer appealed.

 

The Appellate Ruling

On appeal, the insurer argued that the exclusion should be "given a literal reading," contending that "the language and effect of the Policy’s pollution exclusion is clear and unambiguous." Sealed Air, for its part, argued that "the alleged loss to shareholders arises out of the allegedly misleading financial statements, not from air-borne pollutants." The company contended that because "the alleged damages arise from securities misrepresentation and not traditional environmental pollution," the policy provides coverage.

 

The New Jersey Superior Court Appellate Division found that "the language of the policy at issue precludes [the insurer] from disclaiming based on the pollution exclusion." The court said that "it is clear to us that the gravamen of the securities holders’ complaint has its root in securities fraud and misrepresentation, not pollution." The Court found that the pollution on which the insurer sought to rely "is too attenuated from the damages sought and the legal grounds supporting such alleged damages."

 

The appellate court specifically addressed the insurer’s argument that the broad preamble to the exclusion, precluding coverage for loss "based on, arising out of, or in any way involving" excluded pollution. The appellate court concluded that the damages sought in the securities lawsuit were neither "based on" nor "arising out of" excluded pollution. In concluding that the "in any way involving" wording similarly did not trigger the exclusion, the appellate court noted:

Read together with the surrounding words, "based on" and "arising out of," in the context of the pollution exclusion clause, "in any way involving" requires a more direct causal relationship between the pollution and the harm. [The insurer’s] interpretation of the pollution exclusion is too broad, unfair and contrary to the reasonable expectations of the insured.

The appellate court concluded that the "plain and ordinary language of the policy, as well as the reasonable expectations of the insured," prevent the insurer from precluding coverage.

 

Discussion

As a preliminary matter, it should be noted that the appellate court’s opinion is designated as "Not for Publication." Under Rule 1:36-3 of the New Jersey Rules of Court (here), "no unpublished opinions shall constitute precedent or be binding on any court." In addition, under the Rule, an unpublished opinion cannot be cited "unless the court and all other parties are served with a copy of the opinion and of all other relevant unpublished opinions known to counsel including those adverse to the position of the client."

 

While the appellate court’s opinion is therefore of no precedential authority and of only restricted persuasive potential, there are nonetheless lessons that can be derived from the case.

 

First, it should be noted that Sealed Air was able to establish its entitlement to coverage under the Policy for its defense expense incurred in defending against the securities litigation only after enduring a trial and subsequent appeal (and any other proceedings that the insurer may yet pursue in its attempt to deny coverage). It clearly is in the interest of any policyholders for their policy to clarify that the policy is intended to provide coverage for securities claims, even if the underlying misrepresentations alleged relate in some way to pollution.

 

In the current marketplace, many carriers will agree to provide a coverage carve back from the pollution exclusion specifying that the exclusion does not in any event apply to securities claims or to shareholders’ derivative actions.

 

In addition, in the current marketplace, many carriers will also agree to modify the exclusion’s preamble so that rather than the broad preamble wording found in Sealed Air’s policy, the preamble specifies that the exclusion applies only if the claim is "for" excluded pollution. This wording provides some measure of protection against carrier attempts to rely on remote connections between the actual claim against the insured persons and underlying facts involving pollution as a basis to deny coverage.

 

It should also be noted that certain of the so-called Side A/DIC policies available in the marketplace do not contain pollution exclusions. Depending on the coverage provided under these policies, the policies could potentially "drop down" and provide a measure of protection for individual defendants if the first line D&O insurer denies coverage for a claim based on the pollution exclusion.

 

One final note pertains to the underlying securities claim. I have previously commented (most recently here), about the possibility that growing social and political pressures relating to climate change issues could lead to climate change-related claims against directors and officers of publicly traded companies, particularly in connection with climate change-related disclosures. My views in this regard have met with some interest, but also with some skepticism.

 

The underlying securities lawsuit involved here demonstrates how shareholders might allege that a company did not fully disclose, for example, its contingent liabilities arising out of climate change-related issues. The Sealed Air case suggests (to me at least) how short the leap might be to these kinds of allegations. But the risk, however measured, underscores the need for the policy-wording issues identified above to be addressed.

 

An August 28, 2008 memorandum from the Wiley Rein law firm discussing the outcome of the Sealed Air coverage appellate decision can be found here.

 

Securities Docket: Bruce Carton of the Unusual Activity blog (here) has launched a new securities litigation news website called the Securities Docket (here). The Docket bills itself as a "globlal securities litigation and enforcement report." The first iteration is certainly visually attractive and full of a wide variety of interesting items. The Docket looks like it will be an interesting resource that we intend to monitor closely. Congrats to Bruce on getting the Docket launched.

 

WSJ RIP: Joe Nocera of the New York TImes has a post on his Talks Business blog (here) in which he mourns the death of the Wall Street Journal — not the death of the newspaper itself, just its death as the repository of important business news. I have felt the same things that Nocera expresses for a while. The pre-Rupert Murdoch WSJ filled a valuable role that no one other paper (or other news source) plays. Now instead of a unique and indispensible source of business news, it is just one more source for stories about politics that have already been reported in any number of our media sources. I agree with Nocera —  I miss the old Journal a lot.

In prior posts (here and here), I discussed two recent decisions in which courts held that D&O insurance coverage was precluded for settlements the insureds entered without first obtaining the insurers’ consent as required under the applicable policies. An August 19, 2008 Second Circuit opinion (here) addressed the related question of what happens when the insured seeks but the insurer withholds settlement consent.

 

Based on the somewhat strained circumstances involved, the Second Circuit affirmed a jury verdict holding two excess carriers liable under their policies to fund their portion of a settlement, even though the insured had requested settlement consent on a Sunday evening at 10:00 PM and givn the carriers only eleven hours to respond.

 

Background

The underlying claim arose out of the Globalstar Telecommunications securities litigation (about which refer here). After the corporate defendants sought bankruptcy protection, the case went forward solely as to Globalstar’s former CEO, Bernard Schwartz. There were various pretrial mediation and settlement conferences, but the case did not settle and proceeded to trial.

 

The first four layers of Globalstar’s D&O insurance program consisted of a primary $10 million layer and three successive excess layers of $5 million each. Prior to trial, the plaintiffs’ latest settlement demand was $15 million. The primary insurer’s last pretrial settlement offer was $5 million. The plaintiffs reportedly warned that once trial began, their demand would rise to $20 to $25 million.

 

 

After two weeks of trial and on the day before he was scheduled to testify, Schwartz agreed to a $20 million settlement. Schwartz’s defense counsel sought the insurers’ consent to enter into the settlement. The request for consent was sent via email on a Sunday night at 10:00 pm. According to the Second Circuit’s later opinion, Schwartz’s defense counsel "offered to discuss the reasonableness of that figure later than night or between 8:45 am and 9:00 am on Monday." Over the next few days, all four insurers refused to consent. The court entered judgment approving the settlement. Schwartz later funded the $20 million settlement with a personal check.

 

 

The Coverage Litigation 

Schwartz then sued the four insurers. Schwartz sued the primary carrier for bad faith refusal to settle and for breach of contract. Schwartz sued the three excess carriers for breach of contract. (The third layer excess carrier was involved because at the time Schwartz agreed to settle the case, defense fees had eroded the first $3 million of the primary policy, so the $20 million settlement implicated the third layer excess policy.) The second and third layer excess insurers also cross claimed against the primary insurer alleging bad faith, on the theory that as excess insurers they were equitably subrogated to Schwartz’s bad faith claims against the primary insurer.

 

Before the coverage lawsuit went to trial, both the primary insurer and the first level excess insurer settled with Schwartz by paying their full policy limits. The coverage trial went forward on Schwarz’s claims against the second and third level excess insurers, and on these two excess insurers’ cross claims against the primary insurer.

 

Following trial, the jury found in favor of Schwartz and awarded damages of $5 million against the second level excess insurer, and $4 million against the third level excess insurer (the full amount that Schwartz had sought).

 

On the excess insurers’ cross claims against the primary insurer, the jury awarded the second level excess insurer damages of $2 million and the third level excess insurer damages of $3 million. However, the jury also specifically found that the primary insurer had not acted in "gross disregard" of Schwartz’s rights. In a post-trial ruling, the district court dismissed the excess insurers’ cross claims, holding that New York law applied to the cross claims and that under New York law there could be no recovery for bad faith in the absence of a finding of "gross disregard."

 

The Second Circuit Opinion 

On appeal, the excess insurers argued "Schwartz’s failure to satisfy the condition precedent of consent to settlement absolved them of their contractual duties." The excess insurers contended that Schwartz’s settlement request "gave them mere hours (over a Sunday night and Monday morning) to decide whether to settle." The Second Circuit characterized these arguments as contending that the 11-hour period represented "the interval in which the Excess Insurers had to assess – for the first time – the risks, opportunities and settlement demands at play."

 

The Second Circuit, in an opinion by Chief Judge Dennis Jacobs, said that "the insurers’ opportunity to consider settlement extended over a prolonged course of consultation, monitoring and negotiation, so that the settlement was in the nature of anticlimax rather than surprise." The Second Circuit found the jury appropriately considered this evidence and concluded that the excess insurers "had an adequate opportunity to consider and evaluate the settlement opportunities; that $20 million was a reasonable sum; and that [the excess insurers] unreasonably withheld consent." The Second Circuit held that there was sufficient evidence to support the jury’s verdict in Schwartz’s favor.

 

The Second Circuit also rejected the excess insurers’ argument that the trial court inappropriately applied New York law to the excess insurers’ equitably subrogated bad faith claims against the primary insurer.(Under New York law, but not under California law, a finding of "gross disregard" is required to support the imposition of bad faith liability.) Among other things, the excess insurers argued that it was not appropriate to apply California law to Schwartz’s breach of contract claims but New York law to their equitably subrogated bad faith claims.

 

The Second Circuit found that applicable choice of law principles allowed different jurisdictions’ laws to apply to different aspects of the same dispute. The Second Circuit also rejected the excess insurers’ argument that application of different law to their cross-claims inappropriately deprived them of the same right of recovery as the person to whom they were equitably subrogated.

 

Discussion 

The most critical fact in these strained circumstances may be that in the absence of the insurers’ consent Schwartz accepted personal liability for the settlement and funded it out of his own assets. That step substantially undercut the insurers’ ability to argue that the settlement amount was unreasonable, and by extension that their withholding of consent was reasonable.

 

These circumstances nevertheless present some very troublesome aspects. One particularly questionable part is the settlement consent request that was presented in an email at 10 pm on a Sunday evening with an 11-hour response time. However one might characterize this communication, it was hardly calculated to provide the insurers with what most people would consider a reasonable opportunity to consider the request and respond.

 

In seemingly overlooking the unorthodox nature of these communications, the Second Circuit placed great weight on the excess insurers’ prior attendance at mediation and settlement conferences, and at trial. During these proceedings there were opportunities to settle the case for $15 million. To be sure, the plaintiffs had indicated that the settlement demand would rise once trial started. The second and third level excess insurers had demanded that the primary and first level excess insurers settle the case for the $15 million amount. Had the case settled for that amount, the second level insurer would only have paid a portion of its limits and the third level excess insurer’s limit would not have been implicated at all.

 

Under these circumstances it seems that what this case really was about was the question of who ought bear the costs of the $20 million settlement. In that regard, it is significant to note that the jury specifically awarded substantial damages in favor of the second and third level excess insurers against the primary insurer, notwithstanding the jury’s finding that the primary insurer had not acted in "gross disregard" of Schwartz’s interests.

 

The amount of the cross claim awards seems to be explained by the fact that at the time of the settlment, the first $3 milion of the primary policy had been eroded by defense expense. The sum of the $7 million remaining on the primary policy, the $5 million under the first level excess policy, and the first $3 million of the second level excess policy collectively represented the $15 million amount at which the case could have been settled before trial. The jury shifted to the primary insurer responsibiltiy for the incremental $5 million difference between the $15 million for which the case could have been settled before trial and the $20 million for which it actually settled, by awarding damages of $2 million to the second level excess insurer and $3 million to the third level excess insurer.

 

However, the trial court negated these cross claim damage award in its post-trial choice of law decision, which the Second Circuit affirmed. I am insufficiently steeped in "decapage" and other rarified choice of law principles to have any informed opinion about the merits of the Second Circuit’s analysis of the law to be applied to excess insurers’ cross claims. The excess insurers undoubtedly are frustrated that they were found liable to Schwarz (to whom they were equitably subrogated) under California law, but that the primary insurer was not liable to them (despite the jury verdict in their favor on the cross claims) because New York law rather than California law applied to their cross claims.

 

The net effect is that the excess insurers are left holding the responsibility for amounts that the jury assigned to the primary carrier. The primary insurer of course would that in the absence of a finding of "gross disregard" it would be inappropriate for it to have to bear liability for these amounts.

 

In the end, the outcome of this case may be best understood as the result of the strained circumstances. It should probably be emphasized that demanding insurer consent on a Sunday evening with an 11-hour deadline does not, shall we say, represent an advisable approach. Of course there may be sufficiently pressing circumstances (including, it should be noted, during the constraints of trial) where rushed communications may be unavoidable. But in general, complete, timely and business-like communications are to be preferred, and are likelier to avoid disputes with the carrier.

 

Special thanks to a loyal reader for providing a link to the Second Circuit opinion.

 

When Introducing Her, McCain Did Say Something Like "And Now For Something Completely Different": Prior to this past Friday, the only person I had every heard of with the last name of "Palin" was Michael Palin, of Monty Python fame.

 

In a development of potentially great significance for climate change disclosure and reporting issues, on August 27, 2008, New York Attorney General Andrew Cuomo announced (here) that Xcel Energy had entered a “binding and enforceable agreement” requiring the company “to disclose the financial risks that climate change poses to investors.” Xcel’s announcement regarding the agreement can be found here.

 

The agreement follows Cuomo’s September 2007 subpoenas to Xcel and four other utilities companies. As I discussed in a post at the time (here), the subpoenas were directed to the companies’ disclosures to shareholders of the financial risks regarding global warming and climate change. In his August 27 press release, Cuomo stated that his investigations of the other four companies (AES Corporation, Dominion Resources, Dynegy and Peabody Energy) are “ongoing.”

 

 

In its agreement, Xcel has undertaken to “provide detailed disclosure of climate change and associated risks” in its annual SEC filing on Form 10-K. Specifically, Xcel will provide “an analysis of financial risks from climate chance,” focused among other things on: 1. “present and probably future climate change regulation”; 2. “climate-change related litigation”; and 3. “physical impacts of climate change.”

 

 

In addition, Xcel also committed to a “broad array of climate change disclosures” including current and projected future increases in carbon emissions (particularly from planned coal-fired plants); company strategies for reducing or managing its global warming and climate change emissions; and corporate governance actions related to climate change, “including whether environmental performance is incorporated into officer compensation.”

 

 

Although Xcel is the only company that is party to the agreement, Cuomo was very explicit in his press release that his believes that the Xcel agreement has managed to “establish a standard,” and third parties are quoted in his press release as saying that the agreement may have created “an enforceable model for climate change disclosure.”

 

 

Perhaps one might imagine that developments involving only Xcel are irrelevant for other companies. However, one could imagine that only by disregarding overwhelming contemporaneous evidence to the contrary. Among other things, Cuomo’s recent auction rate securities settlement, similarly announced to great fanfare, quickly became a model for regulatory settlements with other auction rate securities targets. For that reason, it must be anticipated that the other four companies Cuomo targeted with subpoenas will face enormous pressure to enter similar agreements.

 

 

The more interesting question is whether the Xcel agreement will have a broader impact, and influence disclosures at other companies – and not just in the utilities industry, but in manufacturing, transport, mining and energy production and distribution, agriculture, and even insurance. As I noted in my prior post, virtually contemporaneous with Cuomo’s subpoenas to these utilities, several public interest organizations had petitioned the SEC to adopt specific climate change reporting guidelines. It is entirely possible that the Xcel settlement will increase the pressure, from shareholders as well as from regulators, to disclose their own financial risks from global climate change.

 

 

As I have previously noted, the danger to publicly traded companies is not just that they may face greater disclosure obligations; the danger arises from the fact that companies undertaking greater disclosure commitments, whether voluntarily or as result of compulsion, may be exposed to later allegations that they engaged in “selective disclosure” or “omission” of unfavorable information. It may only be a matter of time before allegations of this type make their way into civil complaints.

 

 

To be sure, a lawsuit must not only allege misrepresentations or omissions, it must also allege causally related damages. In the absence of shareholder losses related to climate change disclosures, plaintiffs’ lawyers would have little incentive to pursue a climate change disclosure lawsuit. But as scrutiny of these issues increases, and as disclosure pressures mount, the opportunity for market moving announcements also increases. To put it another way, as disclosure expectations increase, so do disclosure risks.

 

 

I have previously asserted that directors and officers of public companies face growing climate change-related exposure. Though these views have been greeted with some interest, there has also been skepticism. Indeed, there have, in fact, as yet been no climate change disclosure related D&O claims.

 

 

However, there are too many politicians who see this topic as a way to enhance their stature. There are too many interest groups that are willing to use all means, including litigation, to advance their agenda. And, indeed, there may even be too many financial risks and uncertainties from the underlying issues. Sooner or later, these forces inevitably will come together in a lawsuit (or perhaps many lawsuits) seeking to hold companies and their directors and officers responsible.

 

 

As today’s announcement from the New York Attorney General’s office demonstrates, climate change already is an important governance and disclosure issue. A myriad of forces ensure that its importance will only increase.

 

 

An August 27, 2008 New York Times article discussing the Xcel agreement can be found here.

 

 

Observers outside the D&O insurance industry frequently comment to me that with all the subprime-related litigation, D&O pricing must be skyrocketing. These observers are often puzzled when I respond that the D&O marketplace remains generally competitive and pricing advantageous to buyers. This same conversation recurs with sufficient frequency that if may be worth exploring in greater depth. It may also be worth considering whether or not current marketplace conditions may be vulnerable to abrupt change.

 

With respect to the litigation activity, there have indeed been a significant number of subprime and credit crisis-related lawsuits, as detailed further below.

 

 

Nevertheless, except with respect to certain marketplace segments (such as the financial services industries), D&O insurers generally have not restricted capacity, reduced coverage or raised prices. As IRMI noted in its September 2008 publication The Risk Report (here, subscription required), it may seem “counterintuitive” but “most companies, particularly those outside the financial sector, continue to enjoy ample capacity and relatively advantageous terms and conditions.”

 

 

The most important reason for the competitive marketplace conditions is that historically low securities class action activity levels prevailed during most of the period 2005 through 2007. Insurers’ D&O results for those claim reporting periods undoubtedly appear favorable. At the same time, insurers overall results during that same period were also favorable, due to low levels of catastrophe claims after the hurricane intensive period in 2004 and 2005.

 

 

Insurers’ business-writing capabilities are directly proportionate to their “policyholder surplus” (which is, in simple terms, the insurance company financial reporting equivalent to shareholders’ equity). As a result of insurers’ strong results in recent reporting years, property and casualty insurers’ industry-wide policyholder surplus is at or near record levels. The insurers’ business-writing capability is correspondingly high – and so the marketplace for most lines of insurance, including D&O, is competitive.

 

 

These are of course exactly the conditions that drive the insurance cycle, as ability to write business translates into an appetite for business, with price as the primary means of competition. Eventually, pricing falls below the risk related requirements, results deteriorate, and, when surpluses and redundancies are exhausted, the marketplace corrects.

 

 

The current heightened claim activity level is exactly the kind of circumstance that can lead to deteriorating results, particularly to the extent that there is a mismatch between pricing and the risk exposure. Indeed, IRMI noted in its recent report that if the current litigation wave “produces significant loss payouts, and spreads beyond the financial sector” the current wave could “ultimately affect the larger D&O marketplace.”

 

 

The ultimate outcome will of course only be revealed in the fullness of time. But in addition to policyholder surplus levels, there are a variety of other factors that could be mitigating the impact of the current litigation wave on the D&O insurers.

 

 

First, insurance may not even be involved in many of the highest profile subprime-related claims. Many of the largest banks, for instance, self-insure for their D&O exposure or only carry so-called Side A coverage for nonindemnifiable loss. At least for those banks that have not gone insolvent, these Side A policies are unlikely to be triggered.

 

 

Second, much of the current claims activity may not involve losses to which D&O insurance even applies. For example, the buybacks at the center of the recent high-profile auction rate securities settlements (about which refer here) may not involve insurable losses. To the extent that there are damages paid (for example, if the losses must pay investors’ consequential damages), the losses are likely to be more in the nature of investment bank errors and omissions losses than D&O losses.

 

 

Third, although the subprime and credit crisis-related litigation wave has spread, the vast majority of the lawsuits have been concentrated in the financial services sector. There are certain D&O carriers that are more exposed to this space than others, but many other carriers have long shunned this space. As a result many carriers may not be experiencing the current heightened claims activity levels, and the ones bearing the brunt of the activity arguably are larger and more diversified.

 

 

Fourth, a certain amount of the litigation wave involves companies domiciled (and, most likely, insured) overseas – for example, UBS, Swiss Re, RBS, RBC, Fimalac, Societe Generale, and so on. Losses related to these claims, which represent a significant portion of the subprime related litigation, may not impact the domestic D&O insurance market.

 

 

Fifth, although I have on this blog, and even in this post, referred to the current litigation as a “wave,” one could argue that although the current activity exceeds the claim level of the preceding three years, the current level is not far above historical claims activity levels. I suspect there are senior insurance executives whose D&O unit managers are telling them that current claims activity levels are within expected ranges. (Some of these managers may have different employers three to five years from now.)

 

 

Sixth, but perhaps most importantly, most of these claims are only in their earliest stages. Carriers’ case reserves may not yet be fully developed. There is also the danger that aggregate loss reserve picks are skewed by several years of better than average results. Carriers may feel confident they have a handle on this situation and fully understand their ultimate exposure, and their confidence may be warranted. It will of course be years before they know for sure.

 

 

Earlier on as the subprime litigation wave was just gaining steam, there were a number of dramatic pronouncements (refer, for example, here) about how large the large the potential loss for the insurance industry from the subprime meltdown could be. It has been awhile since anyone has ventured any similar pronouncements, probably because the sky has not yet fallen. But while prognosticators may have become more circumspect, there remains an abiding danger in the current circumstances.

 

 

Despite — or maybe because of — all of the foregoing, the subprime and credit-crisis litigation wave remains highly dangerous for the D&O insurance industry. Among other things, there is the possibility that the most significant danger could be underestimation of its long-run significance.

 

 

Thanks to the several readers with whom I have spoken and corresponded on these topics in recent days. And very special thanks to Bob Bregman at IRMI for permission to quote The Risk Report.

 

 

Another State Court Subprime Class Action Lawsuit: In an earlier post (here), I noted that as part of the current subprime and credit crisis-related litigation wave, plaintiffs’ lawyers have seemed increasingly interested in filing actions under Section 11 of the Securities Act of 1933 in state court. In the latest example of this phenomenon, on August 26, 2008, a plaintiff filed a purported Section 11 class action lawsuit against National City Corporation and several of its directors and officers in Florida (Palm Beach County) Circuit Court. A copy of the complaint can be found here.

 

 

The complaint is brought on behalf of the former shareholders of Fidelity Bankshares who acquired National City stock in connection with National City’s acquisition of Fidelity, which was completed in January 2007. The complaint alleges that the offering documents “concealed billions of dollars of risky construction loans” that National City made to finance residential real estate construction, in Florida and elsewhere.

 

 

Among other things, the complaint alleges that the construction loans were plagued by “bad product design” and were susceptible to “the high likelihood of default and extreme loan loss severity.” Many of the loans “featured the worst qualities of subprime” though National City supposedly represented its loans as “prime” and “conforming.” The complaint also alleges that the offering documents misrepresented other aspects of National City’s financial condition, including its “nonperforming assets” and its loan loss reserves.

 

 

This new lawsuit is merely the latest lawsuit filed against National City regarding subprime-related issues (refer here and here). In any event, I have added this latest lawsuit to my running tally of subprime and credit crisis-related securities lawsuits, which can be accessed here. With the addition of this latest complaint, the current tally of subprime and credit crisis-related securities lawsuits now stands at 109, of which 69 have been filed in 2008.

 

 

Special thanks to Adam Savett of the Securities Litigation Watch for providing a copy of the National City/Fidelity Bankshares complaint.

The 2007 settlement of an Ontario securities class action may suggest the eventual direction of many of the lawsuits in the current subprime and credit crisis-related litigation wave. Even though the lawsuit was filed in a Canadian court and involved a company (FMF Capital Group Ltd.) whose shares traded only on a Canadian exchange, the lawsuit did arise from the early stages of the subprime mortgage meltdown in the U.S. And although the lawsuit preceded the current litigation wave, many of the allegations raised in the lawsuit have also arisen in the more recent U.S. subprime lawsuits.

 

Through an affiliate, FMF offered residential mortgages to subprime borrowers. According to the company (here), FMF originated mortgage loans throughout in 39 of the 50 United States and the District of Columbia. FMF resold packages of these mortgages to institutional buyers.

 

As summarized in a recent memorandum (here) written by NERA Economic Consulting, which served as the Ontario court’s damages expert and settlement consultant, in March 2005, FMF conducted a $197.5 million IPO. Following the offering, the securities issued in the IPO traded on the Toronto Stock Exchange. According to later news reports (here and here), the company apparently sought the Canadian listing as a way to obtain favorable treatment as a Canadian income trust.

 

In November 2005, just eight months after its IPO, FMF announced that it was suspending the monthly distributions due to investors in connection with its publicly traded securities. Within two trading days of the announcement, the company’s securities had declined 76.8% from their preannouncement price.

 

In January 2006, plaintiffs initiated a securities class action in the Ontario Superior Court of Justice against FMF and certain of its directors and officers, the offering underwriters, and FMF’s auditors. Background regarding the lawsuit can be found here.

 

As described in NERA’s memorandum, the plaintiffs alleged that the company "dismantled" its underwriting standards in order to maintain growth in its loan originations, and that the defendants concealed the company’s degraded underwriting standards and poor loan quality. FMF contended that its woes were due to industry-wide factors including interest rates and increased defaults, which undermined its ability to conduct securitizations and finance distributions.

 

According to co-counsel for the class (here), the class action ultimately was settled for over CAN$28 million. US$21 million of the settlement was funded by FMF’s insurers and by FMF’s privately-held affiliate. The remaining CAN$4.55 million of the settlement was to be paid by the IPO offering underwriters and FMF’s auditors.

 

According to NERA, the settlement, which the Court approved on April 11, 2007, is "the largest settlement in a class action securities case in Canadian history."

 

In addition to its status as the largest Canadian securities settlement ever, the settlement may be significant in a number of other respects as well, due to the circumstances surrounding the lawsuit.

 

That is, even though the lawsuit was filed in a Canadian court and involved a Canadian listed company, the lawsuit arose out of the meltdown in the U.S. subprime mortgage market. The claimants’ allegations about the lender’s deteriorating loan underwriting standards and poor loan quality, and the alleged failure to disclose these factors, are substantially similar to the allegations raised in class actions now pending in U.S courts against numerous other mortgage lenders. The company’s attempt to blame macroeconomic factors for its demise also mirrors the response of many defendants in the U.S subprime lawsuits.

 

Indeed, given these similarities, NERA described the FMF case as "the proverbial ‘canary in the coal mine’ for the current credit crisis." The similarities between the FMF case and many of the cases in the current subprime litigation wave suggest that the outcome of the FMF case could be a harbinger of things to come in the current subprime cases.

 

None of the securities lawsuits that have been filed in the current litigation wave have yet been settled, which makes the FMF lawsuit and its settlement at least potentially significant, for what it might indicate about the outcomes of the lawsuits in the current wave.

 

By my analysis at least, the FMF litigation settled for a fairly significant percentage of the company’s market capitalization loss. The company’s IPO raised $197.5 million at $10/share. The company’s share price declined by $5.21/share in the two days following the company’s announcement that it was terminating the income distributions. There undoubtedly are a number of ways the investors’ losses might be quantified, but by any measure, the eventual settlement of more than CAN$28 million appears to represent a significant percentage of alleged investor loss.

 

Because of the FMF lawsuit’s Canadian connection, litigants in the current U.S.-based subprime related litigation wave may or may not consider the case a relevant reference point. But to the extent it is relevant, the magnitude of the settlement as an apparent percentage of investor loss may point toward some very large settlements in the current U.S. subprime lawsuits, where the dollars involved are in many instances significantly greater than in the FMF case. Whether or not the FMF case does have significance for the eventual outcome of the current U.S cases, it is nonetheless interesting because the case has settled and been concluded while most of the recent U.S. cases are only in their earliest stages.

 

A prior post in which I discussed subprime related securities litigation in Canada, including a brief mention of the FMF lawsuit, can be found here.

 

More About Defense Expense and Limits Adequacy: In a prior post (here), I discussed the limits adequacy and program structure implications arising from the threatened depletion — solely as a result of accumulating defense expense — of the Collins & Aikman D&O Insurance program. As noted on the Race to the Bottom blog (here), counsel for one of the individual defendants has now advised the court that the remaining limits in the company’s $50 million D&O insurance program have been completely exhausted.

 

In his blog post, Professor Jay Brown of the University of Denver Law School, spells out what the depletion of the policy’s limits means for one of the minor defendants. The individual, Paul Barnaba, has now petitioned the court for the appointment of a legal aid attorney. Fortunately for Barnaba, it appears that his own counsel, whose fees previously had been paid by the now depleted insurance, is willing to accept the derisory legal aid fee rate. The other defendants may not be so fortunate.

 

The complete exhaustion of $50 million of D&O insurance solely through the accumulation of defense expense is a nightmare scenario for any director or officer. The individual defendants in the Collins & Aikman case, or at least those that are not independently wealthy, must now face serious criminal charges in a complex financial with only legal aid counsel to protect them. In addition, they continue to face significant civil litigation as well, again without any insurance remaining to fund a settlement.

 

As I noted in my prior post about the Collins & Aikman case, these developments may have important implications for traditional notions of limits adequacy. In addition, it is also clear that in order to make sure that individuals are not left to face serious litigation or even criminal charges without insurance, the consideration of alternative insurance structures should be an important part of every D&O insurance transaction.

 

They Stab it With Their Steely Knives, But They Just Can’t Kill the Beast:  The D.C. Circuit  rejected an attack on the constitutionality of SOX (here). OK, now everybody get back to work.

 

In an unpublished August 18, 2008 per curiam opinion (here), the United States Court of Appeals for the Eleventh Circuit has affirmed the district court’s summary judgment ruling in the CNL Resorts case that a Section 11 settlement is not covered "loss" under a D&O insurance policy. The appeals court reversed and remanded the case on other grounds, as discussed below.

 

This coverage action arose out of an underlying securities class action (about which refer here), in which the plaintiffs alleged violations of Section 11 of the Securities Act of 1933. The plaintiffs alleged that they had purchased their CNL shares at an inflated price of $20/share. The plaintiffs sought to recover the $8/share difference between what they had paid and the $12/share valuation that was later placed on the company. CNL settled this shareholder action for $35 million. Details regarding the settlement can be found here.

 

CNL had a $30 million D&O insurance program, arranged in three layers of $10 million each. CNL initiated a declaratory judgment action against the three insurers, seeking a determination of coverage for the settlement as well as related litigation costs and expenses and other amounts. CNL reached a settlement with the primary insurer, but the action proceeded as to CNL’s two excess insurers.

 

As I discussed in a prior post (here), on March 17, 2007, the district court granted partial summary judgment on behalf of the two excess insurers. The district court held that the $35 million settlement represented a disgorgement of CNL’s "ill-gotten gain," which did not constitute a "loss" under the relevant policy language and therefore is not insurable under applicable law.

 

In its August 18 opinion, the Eleventh Circuit affirmed this portion of the district court’s rulings. The Eleventh Circuit said that "because we conclude that the payment to the Purchaser Class was restitutionary in nature, the payment was not covered loss" and the excess carriers are "not liable for payment."

 

CNL had argued on appeal that the $35 million settlement did not represent the return of ill-gotten gains, contending that "without a finding of fraud, it is impossible to conclude that the money was wrongly acquired." The Eleventh Circuit said that "the return of money received through a violation of law, even if the actions of the recipient were innocent, constitutes a restitutionary payment, not a ‘loss’." The Eleventh Circuit also affirmatively held that Section 11 damages are restitutionary in nature.

 

The Eleventh Circuit also rejected CNL’s argument based on the statement in the settlement agreement that the $35 million was not "restitution or disgorgement." The Eleventh Circuit said that the settlement agreement "is not binding on any third party or this Court. The policy, not the settlement agreement, governs our resolution of this appeal."

 

The Eleventh Circuit did reverse a separate summary judgment ruling of the district court. The separate ruling related to the question of coverage for the settlement of the claims of a separate plaintiff class, the so-called Proxy Class, which had alleged misrepresentations in proxy materials. CNL had settled with this separate class in an agreement that, among other things, had resulted in its payment of the Proxy Class counsel’s fees of $5.5 million.

 

The primary insurer, in its separate settlement with CNL, had agreed to reimburse CNL for this $5.5 million settlement. The excess insurers argued, based on language in the primary policy, that the $5.5 million settlement did not represent covered "loss," and therefore the primary policy had not been depleted by payment of covered loss and the excess carriers’ payment obligation had not been triggered. The district court granted summary judgment on this issue for the excess insurers.

 

The Eleventh Circuit reversed this portion of the district court’s ruling. The Eleventh Circuit remanded the case to the district court for further factual proceedings on the question whether the language on which the excess carriers sought to rely properly is a part of the primary policy. The question to be determined is whether or not the relevant policy endorsement form had been filed with the Florida Office of Insurance Regulation, as the form would be void if not so filed.

 

At one level, the Eleventh Circuit’s affirmance of the district court’s ruling on the question of coverage for Section 11 settlements represents a significant development. A federal appellate court’s adoption of the position that a company’s Section 11 settlement is not covered loss under a D&O policy certainly reinforces the developing case authority on this point. The possibility that another court might reach a different conclusion seems increasingly remote.

 

At the same time, there are limitations on the significant of the Eleventh Circuit opinion. The first is that the opinion itself carries the designation "Do Not Publish." This is less of a restriction in the Eleventh Circuit than it might be in other courts; some courts actually prohibit the citation of unpublished opinions. The Eleventh Circuit’s Rule 36-3 (refer here) specifies that "unpublished opinions are not binding precedent, but they may be cited as persuasive authority." Thus, the Eleventh Circuit’s opinion may at least be cited, but it still does not represent binding authority.

 

There is a practical development that also diminishes the significance of the Eleventh Circuit’s opinion. That is, since the time of the district court’s summary judgment ruling on the question of coverage for Section 11 settlements, most D&O carriers have introduced policy endorsements specifying that they will not take the position that there is no coverage under their policies for settlements under Sections 11 and 12 of the ’33 Act. Not all of these endorsements were created equal, and they are all as yet untested in court, but at a minimum they ought to restrain most carriers whose policies have this endorsement from taking the position that a Section 11 or Section 12 settlement does not represent a covered loss under the policy.

 

Of course, not all policies have yet been adapted to this new approach, and there are still many claims pending in which the relevant policy does not have this new language. In connection with these existing policies and claims, it is important to note a couple of things.

 

First of all, even if a company’s Section 11 settlement is not covered under a D&O policy, the company’s expense incurred in defending against the Section 11 claim still ought to be covered.

 

Second, because the settlement of Section 11 claims against individual defendants (as opposed to the company itself) typically would not represent the return of ill-gotten gains, (since typically they would not have received any of the offering proceeds), a D&O policy ought to provide coverage for the settlement of a Section 11 claims against them, as well as their costs of defense, all other things being equal.

 

Very special thanks to a loyal reader for providing me with a copy of the Eleventh Circuit opinion.

 

Auction Rate Settlements: Plaintiffs’ Bar Bummer?: As I noted in a recent post (here), one of the as yet unanswered questions surrounding the high-profile auction rate securities buybacks is what impact these settlements will have on the numerous auction rate securities class action lawsuits (about which generally, refer here).

 

In an August 18, 2008 Legal Week article entitled "Billions Not for the Plaintiffs Bar" (here), Michael Rivera and Erik Frias of the Fried, Frank, Harris, Shriver & Jacobson law firm suggest that these settlements could have a "debilitating impact on the numerous class actions and other private lawsuits filed since the market seized up." The basis on which the authors reach this conclusion is that as a result of the buybacks and other settlement elements, "the losses of individual investors who might be plaintiffs will now be fully compensated, leaving little to no damages to pursue in court."

 

The authors suggest that as a result of the buybacks and other reimbursements incorporated into the settlements, the "bottom line" is that the claimants "will be made whole without assistance from the courts." As they put it, "government and industry have worked cooperatively to craft a solution to the auction-rate securities problem in such a way that private litigation will be largely unnecessary and unavailable." As a result, the authors suggest, there may now be "little opportunity for the plaintiffs bar to profit."

 

The authors may have a point, but I haven’t yet seen the voluntary dismissal of any of the pending auction rate securities lawsuits. The plaintiffs’ lawyers may not go quietly, and one angle I can imagine them trying to work relates to institutional investors, benefits under the various settlements are less defined and less comprehensive.

 

In any event, there are still a host of auction rate securities lawsuits that have been filed against banks and other institutions that have not yet reached a regulatory settlement. To be sure, it may only be a matter of time before the regulators set their sights on these others. In the interim, the existence of the shareholder lawsuits may represent one additional factor pressuring them to reach a regulatory settlement.

 

Finally, as I recently noted (here and here), though the settlements have started to mount, auction rate securities lawsuits continue to accumulate. There apparently are some members of the plaintiffs bar who continue to perceive an opportunity to profit from the auction rate debacle. It will certainly be some time before it is all sorted out.

 

The current securities litigation wave first arose out of the collapse of the residential real estate subprime mortgage market. As I have previously noted (here), the wave long ago ceased to be just about subprime mortgages, as the litigation as expanded to encompass the fallout from a more general credit crisis. As demonstrated in a recent lawsuit, the wave now includes litigation arising from disruptions in major development construction project financing.

 

According to their August 20, 2008 press release (here), plaintiffs’ counsel have initiated a purported securities class action in the United States District Court for the District of Massachusetts against Perini Corp. and certain of its directors and officers. A copy of the complaint can be found here.

 

According to the press release, the complaint alleges that Perini, a company that offers general contracting, construction management and design-build services to private clients and public agencies worldwide, failed to disclose:

(a) that the developer of Perini’s Las Vegas, Nevada projects, including the CityCenter Project, was experiencing financial problems because it failed to secure financing for the entire project and was dependent upon raising the remainder of the financing from the expected sale of residential units. However, the proceeds from the residential unit sales were based on unrealistic and aggressive prices at a time when the condo market in Las Vegas, Nevada was extremely weak; (b) that the Company’s Las Vegas projects were being delayed, and could possibly be halted; (c) that the developer was in risk of defaulting on its construction loan; (d) that the Company’s future revenue and profit was dependent upon the Las Vegas projects since the projects consisted of approximately 20% of its backlog; and (e) as a result of the foregoing, the Company’s ability to maintain its profit margins was in serious doubt.

Then, on January 17, 2008, the Company issued a press release announcing that Deutsche Bank "delivered a notice of loan default to the developer of the Cosmopolitan Resort and Casino project under construction in Las Vegas, Nevada." In response to this announcement, shares of the Company’s common stock fell $10.05 per share, or 27%, to close at $27.65 per share, on heavy trading volume.

The general economic downturn is now affecting a broad variety of companies in diverse industries. As I have previously noted (most recently here), in all likelihood, in the weeks and months ahead, other companies will be finding that transactions entered in more clement circumstances now appear troubled. As more companies stumble on these troubled transactions, further lawsuits undoubtedly will emerge. And as is the case with the Perini lawsuit, most of these lawsuits will have little to do with subprime mortgages directly.

 

In any event, I have added the Perini lawsuit to my list of subprime and credit crisis-related securities class action lawsuits, which can be accessed here. With the addition of the Perini lawsuit, the current tally of subprime and credit crisis-related securities lawsuits now stands at 108, of which 68 have been filed in 2008.

 

For those who are curious, information about the CityCenter Las Vegas project can be found here. Background about the Cosmopolitan Resort and Casino can be found here.

 

As a result of recent academic research (refer here and here) and other recent developments, Rule 10b5-1 trading plans have attracted critical attention, including SEC scrutiny (refer here). Allegations of alleged misuse of Rule 10b5-1 trading plans have even made their way into shareholder litigation. For example, allegations of Andrew Mozillo’s alleged misuse of his Rule 10b5-1 plans are a central part of the Countrywide shareholders’ derivative complaint (refer here).

 

An August 18, 2008 Latham & Watkins memorandum entitled "Rule 10b5-1 Plans: Recommended Guidelines for Managing Risks in the Current Environment" (here) takes a look at the heightened scrutiny currently surrounding Rule 10b-1 trading plans and presents a set of "better practices to consider" in developing and deploying the plans.

 

Among other things, the authors examine the Rule’s various requirements, and in particular the Rule’s provision specifying that an individual may "in good faith" modify a prior plan, so long as he or she is not aware of material nonpublic information at the time of the modification. The authors correctly note that "the good faith requirement is an important constraining, and problematic, factor because it is inherently subjective. Modifications that do not have a good faith justification will lose the benefit of the affirmative defense. Frequent modifications may be especially hard to justify."

 

The authors review other questions that have been raised in connection with Rule 10b5-1 plan structure and implementation. They suggest that to avoid these kinds of problems or questions companies can adopt certain guidelines to "limit opportunities for their insiders to engage in abusive practices, and more importantly, to avoid the appearance of practices that might be viewed as abusive based on later developments."

 

The authors make a number of good, practical suggestions that should go a long way toward avoiding some of the issues that have raised questions in connection with Rule 10b5-1 plans. The suggestions that appear particularly important in light of recent questions is the authors’ suggestions that "companies should prohibit insiders from entering multiple overlapping 10b5-1 plans," and that companies should promptly disclose insiders’ adoption of Rule 10b5-1 plans through a press release or 8-K filing. The authors also suggest tight restrictions on plan modifications and terminations, as well as on "fast sales," suggesting instead a requirement for a cooling off period.

 

The recent questions surrounding alleged Rule 10b5-1 plan misuse haveraised concerns about the protective value these plans may offer. But as the authors make clear, properly structured plans may continue to provide valuable protection. It is true that insiders who are starting or stopping plans, or running multiple plans, may find themselves unable to rely on the Rule’s safe harbor. But trading plans structured and implemented according to the original intent of the Rule should still afford the protection for which the Rule was designed.

 

Special thanks to Adam Savett of the Securities Litigation Watch blog for providing me with a copy of the Latham & Watkins memorandum.

 

Rating Agencies and Subprime Litigation: As I noted in a prior post (here), the SEC recently released a report critical of rating agencies’ "shortcomings" in connection with their provision of ratings on mortgage-backed securities and other instruments now at the cent of the subprime meltdown. As also discussed in a separate prior post (here), claimants in a recent securities lawsuit have also raised allegations against the rating agencies, alleging conflicts of interest and other alleged misconduct.

 

According to an August 12, 2008 article entitled "Rating Agencies: A New Front in Subprime Litigation" (here), by Larry Ellsworth and Ishan Bhabha of Jenner & Block, the recently filed lawsuit naming rating agency defendants "may just be the tip of the iceberg." The authors suggest that regulatory investigations and other developments may portend further claims against the rating agencies.

 

However, the authors also note that the "agencies are not without defenses." In particular the rating agencies may be able to rely on case authority developed in connection with the Orange County and Enron cases that their rating activities are protected by the First Amendment.

 

The authors question whether the rating agencies will actually be able to rely on these defenses in the circumstances surrounding their rating of the subprime mortgage-backed assets and other related instruments. The authors note that "the agencies only rated those securities for which they were paid, and furthermore had substantial and ongoing involvement with the banks in order to structure the offerings." (For further discussion of the availability of the rating agencies’ potential defenses, refer here.)

 

In addition, the authors also note that "to the extent the rating agencies were actively working with issuers to help them package products in order to get a higher rating the agencies may be especially vulnerable to charges of self-dealing and conflicts of interest, and, if the agencies did not reveal these relationships, these actions might be investigated as material omissions."

 

The authors conclude by noting that these issues are "sure to generate contentious and interesting litigation for years to come."