The risks and opportunities that AI presents have emerged quickly and may be evolving even faster; the whole AI phenomenon has developed much more quickly than legislators’ and regulators’ ability to respond. Among the many AI effects that regulators and other observers are struggling to assess is the extent of the AI-related litigation potential, including but not limited to the prospects for AI-related corporate and securities litigation.
Continue Reading SEC Chair Warns Against “AI Washing”
On November 16, 2023, a jury convicted two executives of an appliance sales and distribution company for conspiracy and for failing to report a consumer product defect under the Consumer Product Safety Act (CPSA). According to the U.S. Department of Justice, the case represents the first-ever prosecution of corporate executives under the act. The DOJ’s November 17, 2023, press release about the prosecution can be found here. The Hyman, Phelps, & McNamara law firm’s November 28, 2023 memo about the prosecution can be found here.
Continue Reading Execs Convicted in First-Ever Consumer Product Safety Reporting Prosecution
Here at The D&O Diary, we cover the liabilities of corporate directors and officers. Geopolitical concerns are not typically part of our beat. But as we all finish up the year and get ready to start 2024, geopolitical concerns are necessarily part of what we are worried about in the current climate. That is true as a general matter and within the specific context of this blog; as the evidence has shown this year, geopolitical concerns have translated into corporate and securities lawsuits, and there is plenty to worry about for next year as well.
Continue Reading Geopolitical Issues and D&O Risk Exposure
Throughout 2023, I have noted examples of securities class action lawsuit filings involving companies whose operations or financial results were undercut by adverse macroeconomic conditions. The specific adverse economic conditions involved have included, for example, rising interest rates, heightened economic inflation, and supply chain and labor supply disruptions.
In yet another example of this phenomenon, a plaintiff shareholder has this week sued the software company Expensify in a lawsuit alleging not that a single adverse macroeconomic factor undercut the company’s results, but rather that adverse macroeconomic conditions in general hurt the company’s financial results and caused it to fall short of the growth projections it made in its IPO. As discussed below, the overall macroeconomic conditions that hurt this company and that were such a factor in securities class action litigation frequency overall in 2023 likely will continue as we head into 2024. There also is a D&O practitioner’s pointer below for those willing to read all the way to the end of this post. A copy of the November 2, 2023, complaint filed against the company can be found here.
Continue Reading Securities Suit Alleges “Macroeconomic Headwinds” Undercut IPO Company
You all know the pattern: a short seller publishes a splashy report with attention-grabbing revelations about the operations or financial results of a listed company; the company’s shares decline; and a plaintiffs’ securities class action law firm files a securities class action lawsuit, often based solely on the accusations in the short seller’s report. The defendant company will of course file a motion to dismiss – but how will the court assess the accusations in the short seller’s report for purposes of determining the sufficiency of the plaintiffs’ allegations? In a November 2, 2023, Law360 article (here), Richard Zelichov of the DLA Piper law firm considers the way that courts should consider allegations based on short-seller reports.
Continue Reading Short-Seller Reports and Securities Class Action Lawsuits
One of the most important securities class action litigation trends in recent years has been the wave of securities lawsuits involving SPACs. And while as time has passed since the peak of the SPAC IPO frenzy in late 2020 and early 2021, SPAC-related securities class action suits continue to be filed. The latest example is the securities suit filed earlier this week against the electric vehicle company Fisker, which merged with a SPAC in 2020. A copy of the November 27, 2023, complaint can be found here.
Continue Reading EV Company Hit with SPAC-Related Securities Suit
By now, readers are well aware that ESG has become a politically divisive issue. In a series of variations on this theme, two conservative legal commentators, writing in a Wall Street Journal op-ed column, argue that ESG is a trojan horse for progressive political objectives that, if Delaware’s courts continue their current course, could cost the state its privileged position as the preferred jurisdiction for corporate organization. The November 25, 2023 Journal op-ed, which was written by former U.S. Attorney General William Barr and Washington Attorney and former Department of Labor official Jonathan Berry, and is entitled “Delaware is Trying Hard to Drive Away Corporations,” can be found here.
Continue Reading Will Delaware’s Embrace of an “ESG Agenda” Cause Corporations to Flee?
Throughout the year, macroeconomic considerations have been an important factor in the number of securities class action lawsuit filings, including economic inflation, and supply chain and labor supply disruption. Another important factor has been rising interest rates, which, among other things contributed to several high-profile bank failures earlier this year, and which in turn led to the filing of follow-on securities suits.
In the latest example of macroeconomic factors affecting businesses and translating into a securities class action lawsuit filing, a plaintiff shareholder has filed a securities class action lawsuit against the standby power generator company, Generac Holdings, after the company announced that declining consumer spending due to rising interest rates caused the company second quarter 2023 revenues to fall below expectations. A copy of the November 21, 2023, complaint can be found here.
Continue Reading High Interest Rates Undercut Consumer Demand, Leads to Securities Suit Filing
Private company management liability insurance policies typically contain certain policy exclusions, including, for example, the Insured v. Insured Exclusion and the Contractual Liability Exclusion. These exclusions often include carve-backs preserving coverage for otherwise excluded claims. While the exclusions and even the carve-backs may be familiar, the way they operate in practice may not be as familiar, particularly the carve-backs. In a recent insurance coverage decision from the District of Massachusetts, applying Massachusetts law, the court considered how common coverage carve-backs operate and interact. Readers may find the way the carve-backs did or did not apply to provide some interesting lessons. A copy of the Court’s November 9, 2023, opinion can be found here.
Continue Reading Carve Backs Preserve Coverage for Otherwise Excluded ClaimsIn a move that may set a record for hacking chutzpah, a cyber ransom gang has filed a complaint with the SEC reporting that a company they hacked had failed to report the incident to the SEC within the time required by the agency’s new cybersecurity disclosure guidelines. The gang apparently filed the complaint after the hacked company failed to respond to the hackers’ ransom demand. The hacking incident and the SEC report were first reported in a November 15, 2023, post on the DataBreaches.net site, and further detailed in a November 15, 2023, post on the BleepingComputer.com site.
Continue Reading Hackers Complain to SEC Company They Hacked Failed to Disclose the Incident