In prior posts, I have tracked options backdating lawsuit dismissals (refer here) and settlements (refer here). Over the last few days, a number of additional backdating-related lawsuit dismissals and a settlement have surfaced.

Here are the dismissals:

Computer Sciences Corp.: On March 26, 2007, the United States District Court for the Central District of California dismissed the backdating-related derivative complaint that had been filed against certain of Computer Sciences Corp.’s directors, as well as against CSC as nominal defendant. The Court found that because four of the six director defendants had neither approved nor received the allegedly backdated options, the plaintiffs had failed to allege facts to show that a majority of CSC’s board faced a substantial likelihood of liability. The Court dismissed the plaintiffs’ complaint for failure to establish demand futility. The CSC dismissal is described in a May 8, 2007 memorandum by the Bingham McCutchen law firm, here. (The CNET dismissal that is also described in the linked document was previously discussed in The D & O Diary, here.)

Novellus: As disclosed in Novellus’ May 10, 2007 filing on Form 10-Q (here), on March 23, 2007, the Court dismissed the options backdating shareholders’ derivative lawsuit that had been filed against certain members of the Novellus board, as well as against the company itself as nominal defendant. The dismissal gave the plaintiffs until May 3, 2007 to seek to amend the complaint. On May 2, 2007, according to the 10-Q, “the plaintiffs voluntarily dismissed the case without prejudice.” According to Novellus’ defense counsel (quoted here), the Lerach Coughlin firm dropped the lawsuit because they “had nothing” to build a case on.

Xilinx: According to Xilinx’s February 2, 2007 10-Q (here), on January 8, 2007, the U.S. District Court for the Northern District of California dismissed with prejudice the consolidated shareholder derivative lawsuit that had been filed against members of the company’s board and certain of the company’s officers. The Xilinx dismissal was also a voluntary dismissal.

The Xilinx and Novellus dimissals are discussed in a May 15, 2007 Marketwatch article entitled “Why The Lawsuits Over Options Backdating Are Failing” (here).

The options backdating lawsuit settlement that recently surfaced related to federal and state court shareholders’ derivative lawsuits that had been filed against certain directrors and officers of J2 Global Communications, as well as against the company itself as nominal defendant. According to J2’s May 9, 2007 filing on Form 10-Q (here), on March 19, 2007, the parties to both the federal and state derivative actions “entered into a settlement agreement that provides for dismissal of the four derivative cases and a release of all current and potential claims relating to our stock option granting practices.” The 10-Q does not describe the terms of the settlement, but according to reliable sources, the settlement involved corporate governance changes and the payment of plaintiffs’ attorneys’ fees of $625,000.

UPDATE: In response to this post, readers brought a couple of additional options backdating-related derivative settlements to my attention:

Dean Foods: In its May 10, 2007 filing on Form 10-Q (here), Dean Foods disclosed that it had settled the two options backdating related shareholders derivative lawsuits against certain current and former directors and officers. The company said in its 10-Q that “the derivative actions were settled in the first quarter of 2007. The settlement resolves all claims and includes no finding of wrongdoing on the part of any of the defendants and no cash payment other than attorneys’ fees. The Company has agreed to adoption and implementation of stock option grant procedures that reflect developing best practices. The district court approved the settlement and the actions were dismissed.” A newspaper article discussing the Dean Foods settlement can be found here.

Molex: In its April 30, 2007 filing on Form 10-Q (here), Molex disclosed that the settlement of the shareholders derivative lawsuit that had been amended to include allegations of options backdating. In its 10-Q, Molex said that following about the amended lawsuit and the settlement: “In November 2006, plaintiffs filed a further amended complaint that added allegations that stock options were priced and issued improperly. The parties reached a settlement in principle of this action in February 2007. The settlement received final approval by the court on April 20, 2007. The settlement included an award of attorneys’ fees funded by insurance proceeds and the Board’s commitment to maintain certain corporate governance measures.”

Special thanks to a loyal reader for the information about the J2 settlement. Thanks to yet another alert reader for the links to the Molex and Dean Foods settlements.

Tyco Settlement Observations: Tyco’s May 15, 2007 announcement (here) of its massive $2.975 billion securities class action settlement has garnered extensive media attention. The Wall Street Journal’s article about the settlement can be found here (subscription required) and the New York Times’ article about the settlement can be found here.

I was struck by a couple of things that were not mentioned either in Tyco’s announcement or in the press coverage. First, there is no reference in any of the discussion of the settlement to Tyco’s D & O insurance. To the contrary, Tyco’s press release states that “the company will incur a charge of $2.975 billion in the current quarter.” This certainly suggests that the company expects to eat the whole thing. It is entirely possible that the D & O coverage has been exhausted by litigation expense and the resolution of other matters, but it is striking that apparently none of the securities class action settlement will be covered by insurance.

Second, by contrast to the WorldCom and Enron settlements, the Tyco settlement does not, at least according to the publicly available information, seem to involve any payment by Tyco’s outside directors. To be sure, claims against criminally convicted former CEO Dennis Kozlowski and former CFO Mark Swartz will go forward, as will claims against former director Frank Walsh, who received a secret $20 million payment for helping arrange a merger and pleaded guilty to securities fraud. But the other former Tyco directors do not appear to have been required to contribute toward the class action settlement, unlike the Enron and WorldCom outside directors who had to contribute to settlement without recourse to insurance or indemnity.

It will be interesting to see if investors choose to participate in the class settlement or instead choose to opt out of the class and pursue individual claims. After all the publicity attending the improved percentage of investment loss that the opt outs from the Time Warner settlement recovered over what they would have recovered by remaining in the class (refer here), investors may well consider whether to pursue opt out claims rather than participate in the Tyco settlement.

The 10b-5 Daily’s post about the Tyco settlement can be found here.

The Cardinal Health Settlement: The Tyco settlement comes close on the heels of another massive settlement, the $600 million Cardinal Health settlement (refer here). According to Cardinal Health’s May 8, 2007 filing on Form 10-Q (here), on May 2, 2007, the company’s board approved a memorandum of understanding regarding the settlement, subject to approval by the plaintiffs’ class representatives and the Court. Cardinal previously established a $600 million reserve to cover the cost of the settlement. But Cardinal’s 10-Q also discloses that it is involved in litigation with its insurance carrier, in which the carrier disputes coverage for the securities class action lawsuit as well as for related shareholders’ derivative and ERISA lawsuits. Cardinal says in its 10-Q with respect to the insurance coverage litigation that “the Company currently believes that there will be some insurance coverage available under the Company’s insurance policies.”

The Cardinal Health settlement stands out, because unlike Tyco, Enron and WorldCom settlements, the underlying case was not really a part of the massive wave of corporate fraud that followed the stock market collapse in the early part of this decade. The Cardinal Health securities lawsuit was not filed until 2004, well after the enactment of the Sarbanes Oxley Act, and relates to accounting allegations specific to that company (refer here for a description of the Cardinal Health securities lawsuit). The Cardinal Health settlement may suggest that the higher level of securities class action severity is not exclusively an attribute of the cases arising out of a narrow set of pre-SOX corporate scandals, but rather may reflect higher overall severity levels. Certainly, the average severity for 2007 settlements will remain at elevated levels as a result of these settlements.

Hat tip to The 10b-Daily (here) for the Cardinal Health settlment links.

2006 PwC Securities Litigation Study: In a prior post (here), I reported on the 2006 PricewaterhouseCoopers 2006 Securities Litigation Study. At the time I created that post there was no link available for the Study, but the Study is now available online (here). I discussed the 2006 PwC Study in my prior post.

Photo Sharing and Video Hosting at Photobucket In recent months, several blue ribbon panels, concerned about the competitiveness of the U.S. securities markets, have proposed reforming U.S. securities regulation, on the theory that the regulatory burden that has driven overseas companies to list their shares outside the U.S. As I have discussed at length previously (most recently here), there are a host of reasons why overseas companies have been list their shares on other exchanges. But despite all of these reasons driving the growth of other countries’ markets, there nevertheless seems to be a continuing and arguably growing interest among overseas companies, particularly Chinese companies, to list their shares on U.S. exchanges.

According to the May 11, 2007 Financial Times article entitled “Chinese Listing Influx Begins” (here, subsciption required), 35 Chinese companies expect to list on U.S. exchanges this year, as many as listed in the last three years combined. Three Chinese companies – Qiao Xing Mobile, Acorn International and LDK Solar – together expect to raise $1 billion in U.S. listings.

A second May 11, 2007 Financial Times article entitled “New York Proves an Attractive Destination” (here) explains that the reason for the influx of Chinese companies is that “a pipeline of private equity and venture capital investments, mostly made by U.S. based funds…have reached maturity.” These companies are drawn to the U.S. markets and are not deterred by U.S. regulations because “despite Sarbox, they can still get better valuations and wider analyst coverage … than in the resurgent Chinese domestic markets or in other parts of the world.” Chinese companies have been drawn to the U.S., according to one commentator, because “they were looking to establish their brand internationally and nothing matches that like a U.S. listing.”

As one source quoted in an April 4, 2007 Law.com article entitled “Law Firms Compete for Chinese Companies’ IPO Action” (here) put it, “in China, everyone wants to get registered to raise funds in the public markets in the U.S.” A U.S. listing, another commentator in the article notes, “provides legitimacy and transparency.”

A prior post on the “healthy” U.S. market for foreign IPO market can be found here.

The Chinese companies’ perception that they will enjoy a better valuation on the U.S exchanges is supported by recent academic research. According to an April 2007 paper by Craig Doidge of the University of Toronto and George Andrew Karolyi and Rene Stulz of the Ohio State University entitle “Has New York Become Less Competitive Over Time? Evaluating Foreign Listing Choices Over Time” (here), there is a significant valuation premium for U.S. exchange listings, and the premium did not decline after the passage of SOX. The article go on to state that “all of our evidence is consistent with the theory that there is a distinct governance benefit for firms that list on the U.S. exchanges.” An April 27, 2007 Wall Street Journal article entitled “Maybe U.S. Markets Are Still Supreme” (here, subscription required) discusses the academics’ research.

As I have previously argued (most recently here), the would-be reformers’ case for regulatory reform is “weak.” But if, as further evidence increasingly seems to substantiate, overseas companies on balance find U.S. markets preferable to other markets, the case for reform goes from weak to nonexistent.

All of this underscores a point I have frequently made, that Wall Street may be attempting to use the effects of the evolving global financial marketplace as a pretext to undermine regulatory requirements that occasionally prove to be uncomfortable because they actually have teeth. The would-be reformers may claim that they seek to advance U.S. competitiveness, but anything that weakens the U.S regulatory structure could remove the greatest advantage the U.S. markets enjoy – that is, the U.S. markets are the most highly regarded precisely because they are the most highly regulated.

Over There, Over Here: As I have also frequently noted, overseas investors are becoming much more accustomed to using litigation as a means to hold management accountable. Further evidence of this can be found in a May 2007 Institutional Investor Services paper entitled “Accountability Goes Global: International Investors and U.S. Securities Class Actions” (here) takes a look at the growing role of overseas institutional investors as lead plaintiffs in U.S. securities class actions.

Among other things, the paper notes that “in every year since 2002, international institutional investors have filed lead plaintiff motions in more than 5% of all securities class actions,” including not only suits against companies that are domiciled in their home countries, but also suits against U.S.-based companies. The international institutional investors, drawn from 17 countries, sought to serve as lead counsel in 182 cases between 1996 and March 31, 2007.

The paper was written by Adam Savett, who also maintains the Securities Litigation Watch blog (here).

Hat tip to the 10b-5 Daily (here) for the link to the ISS paper.

AIG’s announcement on May 10, 2009 (here) that it was taking a $128 million charge to allow for write-downs on subprime loans issued by its savings banking division illustrates how widespread the fallout from the subprime lending collapse is, and suggests the possibility that there may be further reverberations across the business economy ahead.

A May 2007 draft paper by Joseph Mason of Drexel University and Joshua Rosner of Graham Fisher & Co., entitled “Where Did the Risk Go? How Miapplied Bond Ratings Cause Mortgage Backed Securities and Collateralized Debt Obligation Market Disruprtions” (here), attempts to explain how subprime lending became so widespread, how rating agencies helped fuel that growth, and how rating agencies conflicts and involvement in the deal process may have led to the understatement of risk involved for investors buying instruments backed by subprime loans. The authors also suggest a possible direction future litigation involving the rating agencies might take.

The lenders who originated subprime loans sought ways to shift these assets off their balance sheets. The likeliest buyers for these kinds of assets, pension funds and insurance companies, are required to invest in only investment grade securities. In order to sell subprime loans to these institutional investors, a number of mortgage backed instruments, including in particular collateralized debt obligations (CDO) were created from pools of subprime loans. The indispensable element for the success of these instruments was the willingness of the rating agencies to grant investment grade ratings to the instruments.

According to the authors, the rating agencies became very involved in the deal making process. And no wonder, because the issuers paid the rating agencies for the ratings. The business of rating CDOs and other mortgage backed securities became a very important part of the rating agencies’ business. For example, according to Fortune (here) Moody’s net income “went from $159 million in 2000 to $705 million in 2006, in part because of increases in fees from ‘structured finance.'”

The authors point out that the rating agencies’ role was not passive and not limited simply to expressing an opinion on creditworthiness. By the rating agencies own analysis, their role was “iterative and interactive,” and consisted of informing issuers of the “requirements to attain the desired ratings in different tranches and largely defining the requirements of the structure to achieve target ratings.” In other words, the rating agency helped the issuers to structure the deal so that the agencies could give the deal an investment grade rating which, once obtained, entitled the issuer to sell the instruments to institutional investors.

The ability to sell subprime loans as investment grade assets fueled enormous growth in the subprime loan industry. This in turn created greater access to credit for potential homebuyers, which in turn cause home prices to rise, which allowed the mortgage pools to show a very low default rate, which reinforced the apparent validity of the alchemy that transformed subprime loans into investment grade securities.

But the recent downturn in the residential real estate market and the deterioration of the subprime mortgages threatens this arrangement. Nevertheless, so far, the rating agencies have downgraded only a very small portion of the mortgage-backed securities. There may well be very good reasons for this, but one possibility that suggests itself if that the rating agencies are concerned about the cascading effects that would follow widespread downgrades. The investors who hold instruments would have to divest assets that fell below investment grade. This in turn would cause prices for these securities to plummet. The authors suggest that if home prices deteriorate further, CDOs and other instruments could cause “significant losses.” If the market for these instruments were to withdraw, a “major source of liquidity will evaporate,” leading to a tightening of credit, which creates the “potential for prolonged economic difficulties that could interfere with home ownership in the U.S.”

If investors lose significant money on assets they purchased in the belief that they were acquiring investment-grade investments, the authors believe that “among the possible responses” will be litigation against many of the parties involved, including the rating agencies. In the past, when rating agencies have been sued (for example, in connection with the Orange County bond default), they have successfully argued that their rating activities were protected by the First Amendment, as mere opinions of creditworthiness. But he authors argue that the rating agencies indispensable role in the creation of these mortgage backed securities, including in particular their “interactive” involvement in the structuring of the deals, made them participants in the transaction. This, according to the authors, suggests that there “does seem to be some basis to consider” that the rating agencies may have liability as “underwriters” under Section 11 of the Securities Act.

A May 11, 2007 Financial Times article entitled “Rating Agencies Could Be Liable for Losses” (here), discusses the author’s analysis further. A March 19, 2007 Fortune article entitled “The Dangers of Investing in Subprime Debt” can be found here.

Whether or not litigation against the rating agencies ultimately emerges or is successful, the larger threat of the collapse of the market for mortgage backed securities is a concern. Between 2003 and 2006, nearly a trillion dollars of CDOs were issued ($500 billion in 2006 alone). The deterioration of these assets could cause substantial investment losses for investors. And, as the authors point out, the availability of credit could be seriously affected.

To bring all of this back to the beginning, this analysis shows that there are many potentially significant ways the subprime lending collapse could unfold. While only time will tell, there certainly are a sufficient number of reasons to be concerned – and for The D & O Diary to continue to keep track of subprime lender lawsuits (here).

Blog Bites Man: It was one year ago this week that, in a fit of optimism and na�vet�, I launched The D & O Diary. When I started this venture, I had no idea where it would lead. Armed only with a desire for self-expression and a healthy sense of adventure and curiosity, I took the plunge. It has been an amazing, eye-opening ride.

One of the great discoveries along the way has been finding out about the social and support network among bloggers. It has really been interesting getting to know or communicating with fellow bloggers such as Adam Savett of the Securities Litigation Watch, Broc Romanek of the CorporateCounsel.net, Susan Mangiero of the Pension Risk Matters blog, Lyle Roberts at the 10b-5 Daily, Bruce Carton at the Best in Class blog, Sam A. Antar at the White Collar Fraud blog, Francis Pileggi at the Delaware Corporate and Commercial Litigation blog, and Werner Kranenburg at the With Vigour and Zeal blog. There have been many other bloggers far too numerous to recount here with whom I have communicated or corresponded during the year. It has truly been a pleasure interacting with my fellow bloggers.

In addition to other bloggers, the blog has also brought me into contact with interesting and interested readers from around the world. Some of my favorite blog posts originated as comments or links provided to me by one of my readers. I am very grateful to everyone who has communicated with me and I hope readers out there will continue to send me their thoughts, comments, suggestions and links.

One aspect of my readership which I truly had not anticipated is its cosmopolitan composition. While it is not surprising that I might have readers in, say, France or Italy, I do find myself wondering exactly what it is about my blog that interests readers in, say, Mongolia, Suriname, Vietnam, Ghana, Moldova or Kyrgyzstan? The Internet is an amazing thing….

Portrait of an Artist as a Young Blogger: There are those benighted souls who might dare to question the ultimate value of an ephemeral occupation like blogging. Admittedly, it might later be said of our age of blogging, as Edward Gibbon said of the state of Roman literature after the age of the Caesers, “[a] cloud of critics, of compilers, of commentators darkened the face of learning, and the decline of genius was soon followed by a corruption of taste.” What is blogging after all but criticism, compilation, and commentary, and of a particularly self-indulgent variety to boot?

But even if blogging is mere self-indulgent compilation and commentary, it serves a deep need for self-expression, and fulfills the spirit of inquiry that lives within all of us. Might we not say, to paraphrase David Hume’s comment on philosophizing, that if a man reaped no advantage from blogging, “beyond the gratification of an innocent curiosity, yet ought not even this to be despised, as being as accession to those few safe and harmless pleasures which are bestowed on the human race.” If blogging is self-indulgent, if it is mere compilation and commentary, it at least affords a safe and harmless means to gratify innocent curiosity – for author and reader alike.

And for those readers who may have already observed that the preceding two paragraphs represent prime examples of self-indulgent compilation and commentary, to you are vouchsafed the deeper truths of the inner blogosphere.

Photo Sharing and Video Hosting at Photobucket In a partial but significant victory in the New York Supreme Court Appellate Division, former NYSE Chairman Richard Grasso may have accomplished just enough to be able to keep his infamous NYSE pay package. In April 2004, Eliot Spitzer, then New York’s Attorney General, sued Grasso to compel him to return the bulk of his nearly $190 million deferred compensation and pension package. Spitzer alleged in the Complaint (here) that the pay package was “objectively unreasonable” under New York law governing nonprofit institutions – the NYSE was a nonprofit institution while Grasso was its Chair – and that Grasso had improperly influenced or misled the NYSE’s board of directors to obtain their approval.

In an October 2006 ruling, New York Supreme Court Judge Charles Ramos entered partial summary judgment against Grasso, holding that Grasso had breached his fiduciary duty and that Grasso must return almost $100 million. A copy of Judge Ramos’s opinion can be found here. Grasso appealed from this ruling as well as prior rulings in which Judge Ramos had permitted the claims to proceed.

A May 8, 2007 opinion of the New York Supreme Court Appellate Division (here) reversed an earlier ruling of Judge Ramos (here), and granted Grasso’s motion to dismiss the first, fourth, fifth and sixth causes of action against him. Each of the dismissed counts were ones that Spitzer had alleged that New York’s Attorney General had an implied right of action to pursue under the states Not-for Profit Corporation law. The appellate court held, however, that “these four causes of action are not within the scope of the Attorney General’s authority.” The appellate court contrasted these four claims with the two claims against Grasso that were not dismissed; the other two claims were based upon specific statutory provisions granting the Attorney General the right to pursue a cause of action. In essence, the appellate court held that the Attorney General is not “authorized to bring causes of action against directors and officers of not-for-profit corporations other than the causes of action the Legislature expressly authorized the Attorney General to bring.”

Even though two of the Attorney General’s six causes of action against Grasso remain pending, this appellate decision represents a significant victory for Grasso and may ultimately allow him to prevail. Under the two remaining causes of action, unlike the four that were dismissed, the Attorney General must prove both that the payments were “unlawful” and that Grasso knew of the “unlawfulness.” Whether or not the Attorney General can prove the unlawfulness of Grasso’s pay package, proving that Grasso knew of the “unlawfulness” will be a difficult and perhaps impossible task.

With Eliot Spitzer now occupying the New York Governor’s Mansion, the decision whether or not to proceed will now fall to New York’s new Attorney General, Andrew Cuomo. Cuomo of course has nothing vested in the case, and he must now decide whether it is in New York’s interest to try to overcome the obstacles and to try to compel Grasso to repay his compensation. According to AP (here), a spokeperson for Spitzer said the “state was expected to appeal.” The same article quotes Spitzer as saying “This was just a technical issue related to some of the counts and was not the subject of the summary judgment we won.” Well, maybe…

Grasso has made it clear that he intends to fight, and he has already expended a significant amount of his fortune fighting the case, as noted in a prior D & O Diary post (here, replete with quotations from Bleak House).

Because the appellate decision deals only with the Attorney General’s authority to pursue supposedly implied causes of action under New York’s Not-for-Profit Corporation law, it is unlikely to have any significant impact on other efforts to recoup allegedly excessive executive compensation.

Hat tip to the WSJ.com Law Blog (here) for the link the the appellate decision. A May 9, 2007 Wall Street Journal article discussing the decision can be found here (subscription required). A very detailed May 9, 2007 New York Law Journal article discussing the decision can be found here.

ISS Webcast: Adam Savett of ISS (and of the Securities Litigation Watch blog) will be hosting a webcast at 9:30 am on Wednesday May 9, 2007 on the topic Accountability Goes Global: International Investors and U.S. Securities Class Actions. Details about the webcast can be found here. Some of the preliminary findings to be discused are reviewed here.

Photo Sharing and Video Hosting at Photobucket In their perceptive and thought-provoking article, “The Missing Monitor in Corporate Governance: The Directors’ & Officers’ Liability Insurer” (here), Professors Tom Baker of Connecticut Law School and Sean Griffith of Fordham Law School, among other things, examine the consequences of the standard D & O policy feature whereby D & O insurers (by contrast to other liability insurers) do not control the claim defense. Under this D & O policy provision, the insured chooses its own counsel, the costs for which are reimbursed by the D & O carrier, subject only to the policy’s limits and the requirement that defense costs be reasonable and necessary. The authors found that the “predictable effects” of this arrangement are that “D & O insurers are unable to control the costs of defending the claim,” and that D & O insurers are “pressured” to settle claims “at greater expense than an insurer in full control of defense and settlement would allow.” (A prior post where I discuss the professors’ article at much greater length can be found here.)

The D & O insurers’ general inability to control the defense can present a significant issue, because the costs of defending D & O claims are substantial. According to the 2006 Towers Perrin Survey of Insurance Purchasing and Claims Trends (here), the survey respondents’ average cost of defending a shareholder claim in 2006 was $2,798,404, up from $2,140,343 in 2005. (If anything, these numbers are understated since the 2006 survey response incorporated an increased number of smaller and private company respondents.) The increasing magnitude of defense expense is one of several factors escalating general perceptions of D & O limits adequacy, a development that ultimately drives up the aggregate cost of D & O insurance transaction as buyers feel compelled to acquire higher limits. Because defense expense erodes the limits that would otherwise be available to settle claims, escalating defense expense is contrary to the interests of both carriers and policyholders.

Carriers often try to manage defense expense through counsel guidelines and similar means, but all too often these efforts add friction to the claims process. In the end, carriers and the policyholders are still left to argue over whether a disputed expense was or was not reasonable.

An April 30, 2007 opinion from the Southern District of New York sheds some interesting light on the issue. In a coverage dispute arising from two claims filed in connection with bankruptcy proceeding relating to entities associated with Indotronix International Corp., Judge Charles Brieant held (here) that the carrier did not have to pay certain defense fees incurred that were “facially excessive.” The Court had previously held that the plaintiff insured was entitled to recover its reasonable and actual fees incurred in defending the two claims. Both of the claims had been dismissed due to the claimants’ lack of standing. (The procedural history surrounding the underlying claims is somewhat complex; for simplicity’s sake, I have not attempted to reproduce it here.)

The plaintiff insured sought to recover from its insurer $443,496 in fees and $75,772 in disbursement amounts, amounts which the Court found that the plaintiff insured, “a sophisticated business organization with a competent in-house lawyer,” had “willingly paid…without any assurance of disbursement.” The Court looked at the work the attorneys had done while the various motions to dismiss were pending; the Court found numerous occasions “when nothing was happening and all papers due had been filed,” and found that the defense lawyers were “spending an awful lot of time looking at documents” and “days on end sitting at Indotronix.”

Based on this review, the Court found that the amount of fees was “facially excessive,” and that “far too much work was done at too great a cost to be visited on the insurer.” The Court found that defense counsel had continued to work (and to bill) during a lull in litigation when no action was required; that the legal research “should not have required a great investment of time”; and that the “number of hours spent looking at documents appears to be highly excessive.”

In addition, the Court also looked at the hourly rates charged by the defense firm, a Manhattan law firm, for work done in Westchester County. The Court observed that the firm’s blended rate of $357.69 an hour “while perhaps reasonable in Manhattan is in excess of rates reasonably charged for similar work” in Westchester County. The Court took judicial notice that $300 an hour was a reasonable rate in the relevant judicial district.

Based on its review and applying the $300 per hour rate, the Court reduced the requested fees from the requested $443,496, to “a reasonable award of $141,153,” leaving the plaintiffs with an unreimbursed fee expense of $302,343.

Whether or not this case represents a significant development in the ability of D & O insurers to control D & O claims expense of course remains to be seen, as it will be relatively rare that courts will be willing to undertake any kind of review of defense expense, much less the kind of detailed review that Judge Brieant undertook in this case. Nevertheless, the case does at least establish that because defense fees must be reasonable in order to reimbursed, defense fees that are not reasonable are not reimbursable, and that the defense efforts must be proportionate and relevant to the defense issues in the case.

While the Court’s holding undoubtedly will provide some comfort to D & O insurers, it does not assure that disputes over fees will be any less prevalent or intense, and indeed there is some risk that carriers emboldened by this decision will agitate even more vigorously to contest fee reimbursement requests. But in addition to any comfort it may give the D & O carriers, Judge Brieant’s opinion also provides some clues about the steps that policyholders can take to try to avoid or reduce disputes.

First, Judge Briant not only examined the defense firm’s activities, he also reviewed the firm’s billing practices. It clearly did not help the insured plaintiff’s reimbursement request that “some hourly records are missing from the record and some services involved attending at proceedings [that were] not directly related to the Adversary Proceeding.” Policyholders’ will greatly improve the prospects for success of their reimbursement request by assuring that the substantiating documentation is complete, accurate and reflects only relevant charges.

Second, while the plaintiff insured had in fact paid the fees for which it sought reimbursement, it does not seem to have subjected the fees or the attorneys’ work to review or oversight. The Court’s finding that the fees were “facially excessive” and reflected “far too much work” implicitly suggests that the insured itself could have done more to monitor and control the attorneys’ work. The first step toward convincing a carrier that requested fees are reasonable and necessary is for the policyholder to first subject the fees to its own review, before even seeking reimbursement. All parties in the claims process (except perhaps defense counsel) have a stake in ensuring that defense fees incurred are reasonable and necessary, and the policyholder does have an important role to play in the process. Indeed, because defense expense depletes the policy limits, the policyholder has every incentive to ensure that the defense goes forward efficiently.

Finally, the key ingredient to avoid fee disputes is communication. The hourly rate charged, the amount of work done, and even the completeness of the bills are all issues that should have been sorted out during the unfolding of the claim, not afterwards, when it was too late to alter the circumstances. In this case, the existence of potential coverage dispute with the carrier clearly did not help communications; coverage uncertainty can often prove an insurmountable barrier to effective communication between the policyholder and the carrier. But timely and accurate communication between the policyholder and the carrier, when possible, can frequently avert or minimize issues that can lead to significant defense expense disputes. The involvement of a skilled claims advocate can help facilitate these communications, even where coverage remains uncertain.

Special thanks to a loyal reader for a copy of the opinion.

Photo Sharing and Video Hosting at Photobucket It is nothing new for corporate America to have to contend with activist investors. But an activist international institutional investor, backed by a sovereign nation and burgeoning oil wealth and committed to a broadly-based social and environmental agenda, represents a different level of activist pressure. The prototype for this international institutional investor is the Norwegian Government Pension Fund, which collects and invests surplus revenue from the country’s petroleum production, and which at $300 billion in asset value represents the largest public pension fund in Europe. The Fund is prohibited from investing in Norway, so instead it owns what amounts to a considerable slice of the world.

The Norwegian Fund’s impact is not merely financial. The Fund operates according to "ethical" investment principles, pursuant to which the Fund has divested ownership in companies that the Fund’s Advisory Council on Ethics believes are involved in certain kinds of weapons production, environmental damage and human rights violations. The most prominent example of its divestitures for ethical reasons was its high profile divestiture of its $400 million investment in Wal-Mart because of alleged child labor law violations by WalMart suppliers (refer here).

A May 4, 2007 New York Times article entitled in the print edition "Norway Backs Its Ethics With Its Cash" (here) discusses the Fund’s ethical investing practices and their impact. The article quotes the Norwegian Finance Minister, Kristin Halvorsen, as saying "In a global economy, ownership of companies is the most important way to have influence." As many as 21 companies (so far) have felt this Norwegian "influence," twelve of them American.

Nor is the Fund’s activist impact restricted to its investment activities. Norges Bank, the division of the Norwegian Central Bank responsible for managing the Fund’s investments, has made its presence felt as a securities fraud lawsuit litigant. For example, Norges Bank was one of the prominent litigants that chose to opt-out of the Time Warner class action settlement (here). Norges Bank was also a major participant in the recent historic Royal Dutch Shell investor settlement (here).

The most prominent institutional investor activist in the U.S. has arguably been the California Public Employee Retirement System (Calpers), which with current investement assets of about $244 billion is actually smaller than the Norwegian Fund. Moreover, because Norway is the world’s No. 3 oil exporter (behind Saudi Arabia and Russia), Norway’s Fund will grow substantially in the years ahead. The Times article estimates that at the rate at which it is growing, the Fund could be worth $800 billion to $900 billion in a decade. With the Fund’s growing size and activist agenda, its impact could be enormous, particularly given the Fund’s apparent willingness to resort to litigation.

The Fund’s growth will provide it with the powerful tools to drive its agenda. As a result, companies could face growing pressure to provide compliance and disclosure on a broad range of social and environmental issues. Readers of The D & O Diary will recall my recent post (here) on the growing importance of climate change disclosure; the Times article reports that the Norwegian Fund’s next area of scrutiny will be companies that contribute to global warming. (There is of course some irony in a country which has grown wealthy from oil production presuming to lecture the rest of the world about global warming.)

The upshot is that public companies could face growing pressure on environmental and social issues, from the Norwegian Fund as well as other investors that follow their lead. Traditional notions of "good corporate governance" will necessarily evolve to adapt to these circumstances. These evolving issues represent risks that may not be apparent on companies’ financial statements. Companies will face changing levels of reputational risk and even political risk as part of this evolving global investment dynamic. It will be increasingly important for companies to have tools to measure and control their exposure to these developing concerns, as well as to provide adequate disclosure of these issues to their shareholders.

Cross-Border Prosecutorial Collaboration: Along with the globalization of political and social issues, the increasing global collaboration of national regulatory and investigative personnel also represents a new and growing risk to companies in the global economy. The high-profile collaboration of a multinational investigative force in the Siemens bribery investigation (here) is a recent prominent example. Another example is illustrated in a May 4, 2007 Wall Street Journal article entitled "Cartel Arrests in U.S. Bolster Europe Probe" (here, subscription required).

According to the Journal, executives from companies in Italy, France, the United Kingdom and Japan were arrested in the U.S. this past week for their role in an alleged international cartel to fix prices for industrial hoses used in oil transportation. The arrests reportedly were "the result of a joint U.S. investigation with the European Union and U.K. agencies under a program of trans-Atlantic cooperation against bid rigging." The stumbling block for EU enforcement of its anti-cartel laws has been the lack of any personal liability for cartel participants under EU law. These limitations have restricted EU authorities’ ability to pursue cartel activities. The enlistment of American authorities in the anti-cartel efforts circumvents these EU limitations by exposing individuals to personal liability under tougher American anti-cartel laws.

While these developments are perhaps socially desirable for their ability to punish and deter anticompetitive activity, the developments also carry some disturbing implications for officials at companies engaged in the global economy. Executives could face the threat of prosecution not only under the laws of their own country but under the laws of many other countries. The willingness of the U.S. to enforce its antibribery laws against foreign companies whose shares or ADRs trade on U.S. exchanges is another example of this extraterritorial impact of domestic laws. The result of this globalization of criminal enforcement could be a dramatic expansion of corporate executives’ risk exposure.

Not only does this evolving globalization of criminal enforcement create a new category of risk management challenges, but it could create new challenges for the structure of the companies’ D & O insurance program. Certainly, companies engaged in the global economy will want to understand their policy’s potential protection for foreign investigations and proceedings, as well as the policy’s protection for criminal processes such as extradition.

Be Here Now: As scientists and commentators have struggled to prefigure a future world beset with the consequences of global climate change, they have projected a litany of grave impacts: coastal erosion and subsidence from rising sea levels; extreme weather events; unprecedented economic impacts; and a deteriorating health environment.

Readers skeptical of these scenarios will want to consider these stories appearing in newspapers just this week alone: the seacoast of East Anglia in the U.K. is sliding into the sea because of rising sea levels (here); Australia’s six year drought is now so serious that the country must restrict crop irrigation, while politicians struggle to respond (here); Germany will no longer apply seasonal adjustment to its unemployment statistics because the increasingly mild winters have a diminished employment impact (here); and the global incidence of asthma and hay fever has escalated as a result of the proliferation of allergens due to warming conditions (here).

After I wrote my post a few weeks ago about global climate change and D & O risk (here), I received some very skeptical and even derisive reactions. But the reality is that global climate change is not some distant theoretical construct. Its impacts are already being felt throughout the world. The answer to the question whether or not this will affect the risk profile of publicly traded companies is simply a reflection of the way you frame the issue. You can, as I think is the proper approach, regard global climate change as a separate category of risk to be analyzed as such. Or you can simply look at it as imbedded within numerous other risk categories, such as commodities pricing risk, political risk, and currency risk, as well as what insurers call parameter risk (the risk of events different than those that have occured in the past). Whether viewed separately or as a part of the overall panoply of corporate risk, global climate change will be an increasingly important part of the risk landscape that companies face. The influence of activist investors like the Norwegian Fund suggests that companies disregard these risks at their peril.

 

Adding its contribution to the previously released studies of NERA (here) and Cornerstone (here), PricewaterhouseCoopers recently released its annual report (here) regarding 2006 securities class action litigation. The PwC report is generally consistent with the other studies, but it does add a few interesting additional insights.

Perhaps most interesting observation in the PwC study relates to its comments about the overall level of shareholder litigation activity. The PwC study notes that while the number of securities class action lawsuit filings declined in 2006, the total number of shareholder lawsuits did not decline, when shareholder derivative lawsuits are taken into account. Accounting for the derivative suits, “a more stable level of shareholder activity begins to emerge in comparison to prior years.”

The PwC study reports that the total of 214 class actions and derivative claims in 2006 was “higher than the 172 cases analyzed in 2005 and not so different from the average of 218 total cases filed since 2002.” So rather than facing a decline, “the more relevant observation is the shift in venue and the type of action employed to address shareholders’ protestations.”

Other noteworthy observations:

Audit Committees: “A more startling statistic for 2006 is that audit committee members were named in 8 percent of federal cases filed, compared to 2 percent in 2005 and an average of 4 percent since 2002.”

Settlement Amounts: By contrast to the NERA and Cornerstone studies which reported a higher average class action settlement in 2006, the PwC study found that in 2006 “average settlements dropped from $62.3 million from $69.8 million, down by 11 percent.” This numerical divergence between the studies is most likely explained by the footnote on page 37 of the PwC study, where the report states that “settlement year is determined by the year the settlement is disclosed.” This approach contrasts to the other studies, which use the year that the settlement is approved (refer here). The PwC study also notes that the most frequent settlement amount fell between $2 million and $4.99 million.

Foreign Issuers: The PwC study notes that the number of securities class action lawsuits filed against foreign issuers fell from 19 in 2005 to 13 in 2006, which represents the lowest number filed against foreign issuers in the last seven years. The 13 foreign companies sued in 2006 represent only 1 percent of the total of 1,200 foreign issuers whose shares trade on U.S exchanges.

The study also contains a number of interesting essays and commentaries on a variety of subjects, including SEC enforcement trends, regulation of foreign issuers and of hedge funds, and evolving international extradition standards.

As the number of securities fraud lawsuits has declined (refer here), an alternative means that plaintiffs lawyers are finding to amuse and enrich themselves are lawsuits filed in connection with “going private” transactions. An April 24, 2007 National Law Journal article entitled “New Legal Battles Over Going Private” (here) takes a look at the court fights that “challenge the terms of a merger that would transform a public company into a private one.”

On the one hand, there is nothing new about litigation arising from M & A activity. There is a well-established tradition of plaintiffs’ lawyers using the courts to force companies that are being acquired to re-open the bidding process or bump up the proposed acquisition price – and also to earn themselves some fees. But as The D & O Diary has previously noted (here), these lawsuits in the “going private” context sometimes have additional elements that represent a variation on the established M & A litigation theme.

As the National Law Journal article discusses, plaintiffs’ lawyers frequently target certain aspects of going private transactions, including “deal sweeteners that enhance executives’ compensation.” Lawsuits also challenge deals because they “unfairly benefit specific corporate directors and executives” at shareholders’ expense. The lawsuits can lead to a reopened bidding process, a higher acquisition price, and even in some circumstances “damages to shareholders after the deal closes.”

The massive amounts of money involved in going private transactions create enormous opportunities for conflicts of interest to arise, particularly where incumbent management stands to benefit if a specific buyout group succeeds. These circumstances present a serious risk for claims against the directors and officers of the target companies. To see these factors at work within the context of a specific going private transaction, refer here to see my prior post regarding the Clear Channel Communications deal and lawsuit.

These kinds of lawsuits are expensive to defend because of the high stakes and time frames involved. The defense fees will usually be covered under the typical D & O policy, but in some instances settlements may not, in whole or in part. Some settlements or awards represent amounts (for example, for return of improper compensation) would be excluded under the typical amounts. Remedial steps, such as a reopened bidding process or a bumped up acquisition cost, would not in most instances represent covered loss. But to the extent awards or settlements are based on misrepresentations or other alleged malfeasance, the D & O policy could provide an important funding source for settlements and awards. Because of the complicated way that these kinds of claims intersect with the D & O policy, it could be particularly important for companies to enlist the assistance of a skilled D & O claims advocate in representing their interests in connection with the claim.

Another Subprime Lawsuit: One of the reasons I recently added a post (here) where I will maintain a running tally of subprime lending lawsuits is an intuition that as the consequences from deteriorating subprime mortgages ripple outwards, there will be more lawsuits against a broadening array of companies.

Along those lines, I updated the subprime lending lawsuit tally today to add a lawsuit that represents a new variant in the mix. According to news reports (here), Credit Suisse has been sued in connection with its bond securitization of subprime loans. Bankers Life Insurance Co. claims that it lost money on the investment grade bonds that Credit Suisse sold and that were backed by subprime mortgages. The lawsuit alleges, among other things, that the bank misled bond investors about how much protection they had against accelerated defaults. The lawsuit also accuses the bank of covering up delinquencies and attempting to maintain the illusion that the level of defaults were not serious.

We will undoubtedly be seeing more claims against a broader range of companies as the ripples from the subprime meltdown expand.

ABA Panel: On Friday May 4, 2007, I will be participating in an American Bar Association Tort Trial & Insurance Practice Section conference entitled “Beyond Legal: A Business Approach to Corporate Governance.” A copy of the conference brochure can be found here. I will be appearing on a panel entitled “D & O Insurance: Placing a Premium on Good Corporate Governance.” The panel will be moderated by my good friend Sean Fitzpatrick, and will include a number of distinguished speakers, including Professors Tom Baker of Connecticut Law School and Sean Griffith of Fordham Law School. If you will be attending the conference, I hope you will greet me and introduce yourself.

Photo Sharing and Video Hosting at Photobucket Newpark Resources has announced (here) a $9.85 million settlement of a securities class action lawsuit that, as amended, was based in part on allegations of stock options backdating.

The lawsuit against Newpark Resources and several of its directors and officers arose following the company’s April 17, 2006 press release (here) in which it disclosed that the company’s board’s audit committee had “commissioned an internal investigation regarding potential irregularities involving the processing and payment of invoices by Soloco Texas, LP, one of the company’s smaller subsidiaries, and other possible violations.” The company also announced that it had placed three officials on administrative leave. The company’s share price declined, and plaintiff shareholders initiated a securities class action lawsuit (here).

On June 29, 2006, Newpark Resources announced (here) that it had completed its initial investigation, and that it would be restating its financial statements for fiscal years 2001 through 2005, and for fiscal quarters in 2004 and 2005. The investigation concluded that certain of the Soloco Texas transactions had not been properly accounted for. The company also announced that during the investigation, “the Audit Committee had also requested a review of the company’s past practices regarding stock options.” The “preliminary findings” of the stock options investigation were “that a portion of the stock options granted prior to June 2003 were dated on a date other than the date their issuance was approved and the exercise price of such options were determined in advance of their approval by the appropriate board committee, all in contravention of the company’s stock option plan.” Newpark Resources also announced that the Board had terminated its former CEO and current Chairman of one if the company’s subsidiaries, as well as the company’s CFO.

On November 9, 2006, the plaintiffs filed their consolidated amended complaint (here) against Newpark Resources and present and former Newpark directors and officers. The amended complaint contains (at paragraphs 53 through 76) detailed options backdating related allegations. A summary regarding the Newpark Resources securities class action lawsuit can be found here.

On April 13, 2007, Newpark Resources announced (here) that it had settled the securities class action lawsuit as well as a related derivative lawsuit. The company announced that it would pay $1,550,000 toward the settlement, and its directors and officers liability insurer would pay an additional $8,300,000. The company announced that it was settling liabilities related to the Soloco Texas transactions as well as “alleged improper granting, recording, and accounting of backdated grants of stock options to executives.” The company also announced that it had also been notified by the SEC that it had opened “a formal investigation into Newpark’s restatement of earnings.”

The lead plaintiffs in the case are Plumbers and Pipefitters Local 51 Pension Fund and and co-lead plainiffs law firms in the case are the Lerach Coughlin firm and Glancy Binkow and Goldberg.

The D & O Diary notes that while it had duly recorded, in our running tally of options backdating related lawsuits (here), that Newpark Resources had been named as a nominal defendant in an options backdating related derivative lawsuit, we had not picked up that the Newpark Resources securities class action lawsuit had been amended to add options backdating related allegations. The D & O Diary’s options backdating related litigation tally will be amended to add the Newpark Resources lawsuit to the securities class action tally, with a link back to this post.

With respect to a prior partial settlement of a derivative options backdating lawsuit involving SafeNet, refer here.

Special thanks to a loyal reader (who prefers anonymity) for the link to the Newpark Resources settlement.

Another Interesting Class Action Settlement: On April 30, 2007, Doral Financial announced (here) the settlement of a pending securities class action lawsuit, as well as a related derivative lawsuit. The lawsuits related to Doral’s April 19, 2005 restatement (here) of its financial statements for the period 2000 to 2004. As part of the settlement, the Company and its insurers will pay an aggregate of $129 million, of which the insurers will pay approximately $34 million. A summary of the class action lawsuit may be found here. The Lerach Coughlin firm acted as lead plaintiff firm, on behalf of the West Virginia Investment Management Board.

There are several interesting things about this settlement, the first of which is the significant amount by which the aggregate settlement amount exceeds the amount of available insurance. The company is responsible for a very significant portion of this settlement (but see below about the company’s funding for the settlement). It used to be that the available insurance limits defined the outer limits of the potential settlement. There are more occasions now where the settlements exceed the insurance limits.

Second, in addition to the company’s and its insurers joint payment, “one or more individual defendants will pay an aggregate of $1 million (in cash or Doral Financial stock).” This statement is odd for its careful imprecision — one or more individuals? Cash or stock? Doesn’t it seem unlikely at this point that they don’t know who is going to pay and what form the payment will take? Or is something else going on? In any event, it seems to be a more common occurence for individuals to be called upon to fund a portion of the settlement. The reference to the possibility of payment in the form of company stock also seems to suggest that the individual (or is it individuals?) will be paying the settlement out of their own assets.

Third, the company also announced that its “payment obligations under the settlement agreement are subject to the closing and funding of one or more transactions through which the Company obtains outside financing during 2007 to meet its liquidity and capital needs, including the repayment of the Company’s $625 million senior notes due on July 20, 2007, payment of the amounts due under the settlement agreement and certain other working capital and contractual needs.” This sentence is hard to parse, but it apears that the company must borrow or otherwise raise the funds to finance the settlement. The company’s press release goes on to say “either side may terminate the settlement agreement if the Company has not raised the necessary funding by September 30, 2007 or if the settlement has not been fully funded within 30 days from the receipt of such funding.” Certainly seems like the company has to try to come up with the money somehow. I wonder where that leaves the plaintiffs if the company can’t come up with the money?

In any event, Doral’s other news today is that it is exploring selling itself to a private equity firm, according to news reports (here).

Hat tip to an alert reader (who prefer anonymity) for the link to the Doral Financial settlement.

 Updated November 12, 2011: As shown in the lists below, the lawsuits against subprime lenders are starting to mount up. This is hardly a surprising development; as the WSJ.com Law blog noted (here), law firms are already announcing their formation of subprime lending task forces and teams, just as a year ago law firms were announcing their formation of "options backdating teams." Along the same lines, on April 25, 2007, Law.com ran an article entitled "Subprime Crash May be a Boon to Attorneys" (here).

There is a growing list of lawsuits against subprime lenders arising from the deteriorating environment these companies face. The list is now sufficiently long that it seems to be time to create a running tally of the subprime lending lawsuits, as a complement to The D & O Diary’s popular running tally (here) of the options backdating related lawsuits. I have linked below to the list of subprime lending lawsuits of which I am aware. This list may be incomplete, and I entreat readers to please let me know of any omission of which they are aware. I will endeavor to keep this list updated and will indicate any additions to the list in red. The legend "2008" indicates that the lawsuit was filed in 2008; items without a legend were filed in 2007.

Securities Class Action Lawsuits: To see the list of the 229 subprime related securities lawsuits, refer here. (Word Document)

NOTE ABOUT THE LIST OF CASES: As time has gone by, it has become increasingly difficult to maintain absolute categorical precision regarding what is a subprime related lawsuit. For example, the Care Investment Trust case noted above involved a mortgage trust that holds healthcare related assets. The allegation is that the company’s prospectus failed to disclose the impairment of the value of certain of its assets and that the company was having difficulty obtaining warehousing financing for its investment activities. The company’s woes are undoubtedly due to contagion in the credit market deriving from the subprime meltdown, but the company itself has no ties to the subprime industry. Owing to the connection of the contagion effect in the credit markets, I have included the case in the list. Reasonable minds might omit the case.

ERISA/401(k) Lawsuits:

1. Fremont General
2. Beazer Homes
3. Citigroup
4. Countrywide Financial Corp.
5. Merrill Lynch
6. UBS AG
7. Morgan Stanley
8. State Street
9. MBIA [2008]

10. Bear Stearns [2008]

11. Regions Financial Corporation [2008]

12. Huntington Bankshares [2008]

13. National City Corp. [2008]

14. Impac Mortgage Corp. [2008]

15. Sovereign Bancorp [2008]

16. Wachovia [2008]

17. First Horizon [2008]

18. PFF Bancorp. [2008]

19. Fannie Mae (2008)

20. Hartford Financial Services Group (2008)

21 Bank of America (2009)

22. IndyMac (2008)

23. American Express (2009)

24. Northern Trust Investments (2009)

25. Sterling Financial (2010)

Subprime lenders have also been sued in various lawsuits alleging that they engaged in deceptive or unfair trade practices. Recent examples involve the lawsuit pending against First Franklin Financial Corp. (here) and the lawsuit that Wells Fargo recently settled (here). While I will provide occasional updates on this post of these kinds of deceptive trade practices lawsuit, I do not propose to comprehensively catalog them here.

In at least one instance, an investment bank has been sued in connection with the bond securitization of subprime loans. According to news reports (here), Credit Suisse was sued by Bankers Life Insurance Co. in a lawsuit in which the insurer claims it lost money on the investment grade bonds backed by subprime mortgages the Credit Suisse had sold. The lawsuit generally pertains to the quality (or lack thereof) of the mortgages that backed the bonds.

There may well be other companies or kinds of companies adversely affected by the declining residential real estate market who find themselves facing securities class action or other lawsuits, as if so, I will update this post accordingly.

 

Readers are encouraged to suggest additional listings or references that should be added to this post.