On July 26, 2023, a divided SEC adopted, by a 3-2 vote, final rules for cybersecurity disclosures. The final rules are based on proposed rules the agency first introduced in March 2022. The rules require companies to disclose material cybersecurity incidents they experience, and also to disclose on an annual basis material information regarding their cybersecurity risk management and governance. The rules will have a significant impact on reporting companies’ disclosure practices and could present a challenge for some companies. A copy of the final cybersecurity disclosure rules can be found here. The SEC’s July 26, 2023, press release about the final cybersecurity disclosure rules can be found here. The SEC’s two-page fact sheet about the new rules can be found here.

Continue Reading SEC Adopts Final Cybersecurity Disclosure Rules

I don’t know how many readers follow Lyle Roberts’s The 10b-5 Daily blog, but if you are not following it, you should. When Lyle posts a new item, it is always interesting. In his latest post, Lyle discusses a recent federal district court decision in which the court confronted the question whether a company’s description of a legal matter as “without merit” could be the basis of a misrepresentation claim under the federal securities laws. Because this is such an interesting question, and because companies routinely describe lawsuits to which they are subject as being “without merit,” I discuss the decision below.

Lyle’s July 25, 2023, post about the decision on The 10b-5 Daily blog can be found here. A copy of the District of Massachusetts court’s July 24, 2023, decision in City of Fort Lauderdale Police and Firefighters’ Retirement Systems v. Pegasystems, Inc. can be found here.

Continue Reading Statement that Underlying Suit is “Without Merit” Held Actionable

The number of federal and state court securities class action lawsuits filed in the first six months of 2023 was up compared to the number of filings in the second half of 2022, but in line with the number of filings in the first half of 2022 as well as with the long-term half-year average number of filings, according to the latest report from Cornerstone Research. The report, written in conjunction with the Stanford Law School Securities Class Action Clearinghouse, is entitled “Securities Class Action Filings: 2023 Midyear Assessment,” and can be found here. Cornerstone Research’s July 20, 2023, press release about the report can be found here.

Continue Reading Cornerstone Research: 1H23 Securities Suit Filings Increased Relative to 2H22

Readers will recall that I recently posted about the new Nevada legislation requiring liability insurance policies issued in the state to provide for defense costs outside the limits – in other words, expressly requiring that liability insurers’ payment of defense costs will not erode the limit of liability. This new legislation caused a great deal of concern, both among insurers and insureds. On July 21, 2023, and in response to the concerns, the Nevada Department of Insurance, acting through the state’s Insurance Commissioner, adopted an Emergency Regulation to aid the implementation of the new statute. The Emergency Regulation itself, as well as the Insurance Commissioner’s July 20, 2023, letter to the Nevada Governor explaining the regulatory action, can be found here. In addition, the Department has also separately published Guidance to Insurers with respect to the Emergency Regulation, which can be found here.  

Continue Reading Nevada Publishes Emergency Regulation for “Defense Outside the Limits” Bill

From the very beginning of the COVID-19 outbreak in March 2020, one related phenomena that immediately became apparent was the emergence of coronavirus-related securities class action lawsuits and other corporate and securities litigation. I have been tracking the COVID-related securities litigation since the very beginning, and now, even though we are now well into the pandemic’s fourth year, the COVID-related securities suits are continuing to be filed. In the latest example of a COVID-related securities suit filing, a plaintiff shareholder this week sued Danaher Corporation for the company’s disclosures related to the impact of the pandemic on the company’s sales. This latest filing suggests that the COVID-19-related securities litigation phenomenon may have further to go yet. A copy of the complaint in the new lawsuit against Danaher can be found here.

Continue Reading Danaher Hit with COVID-Related Securities Suit Filing

In what is as far as I know the largest shareholder derivative lawsuit settlement ever as measured by dollar value, the defendant board members in the Tesla Board compensation derivative suit have agreed to settle the case for a combination of payments and transfers with a total value of $735 million. The agreement settles a Delaware Chancery Court lawsuit that a public pension fund shareholder filed against the board in June 2020 alleging that the since at least 2017 the board had received “unfair and excessive” compensation. The settlement is subject to court approval. A copy of the parties’ stipulation of settlement in the case, filed with the court on July 14, 2023, can be found here.

Continue Reading Tesla Board Compensation Derivative Suit Settles for $735 Million

One of the hot topics in the world of corporate and securities litigation in recent years has been the use of forum selection bylaws as a way for companies to try to manage their litigation risk by steering corporate and securities litigation to a specified forum. Courts have largely upheld these provisions. For example, as noted in a recent post, an en banc ruling of the Ninth Circuit dismissed a plaintiff’s claim against the board of The Gap in reliance on a forum selection clause in the company’s bylaws, even though the dismissal effectively deprived the plaintiff of a forum for its derivative Section 14(a) claims.

Now in a further development, a federal district court judge, again in a reliance on a forum selection clause, has granted the defendants’ motion to dismiss in a SolarWinds cyber incident-related derivative suit, even though the dismissal means that the plaintiff has no forum in which to assert his derivative Exchange Act claims – most notably including the plaintiff’s derivative claims under Section 10(b). At a minimum, the ruling expands the reach of what a forum selection clause may achieve, and it possibly could increase the chances that these issues ultimately wind up before the U.S. Supreme Court. A copy of the court’s July 12, 2023, order in the federal court derivative lawsuit can be found here. A July 14, 2023, post on CorporateCounsel.net about the ruling can be found here.

Continue Reading Federal Court Derivative Suit Dismissed Based on Forum Selection Clause, Despite Exchange Act Claims

In my 2022 year-end wrap up of D&O insurance developments, I identified macroeconomic factors as among the sources of D&O claims during the past year including, among other things, interest rate increases, economic inflation, labor supply and supply chain disruption, and the Ukraine War. In various posts this year, I have noted that these factors continue to affect companies and to contribute to the number of securities class action lawsuit filings. In the latest example of the way in which these macroeconomic factors can translate into securities litigation, the drug and healthcare company Baxter International was sued last week due to the decline in the company’s share price after the company’s announcement that continuing supply chain woes were setting back its operations and financial results more significantly than the company had anticipated. The new lawsuit shows that macroeconomic factors such as supply chain constraints are continuing to contribute to securities lawsuit filings. A copy of the July 12, 2023, complaint against Baxter can be found here.

Continue Reading Baxter Hit with Supply Chain-Related Securities Class Action Lawsuit
Nessim Mezrahi

In a recent post, I reviewed the number of first half 2023 securities class action lawsuit filings. In the following guest post, Nessim Mezrahi, co-founder and CEO at SAR LLC, analyses the potential financial exposure associated with the securities suit filings from the year’s first six months, as well as the implications of the filings for the D&O insurance industry. Nessim’s article first was published in the form of an SAR press release (here). I would like to thank Nessim for allowing me to publish his article on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Nessim’s article.

Continue Reading Guest Post: 2023 Market Dynamics Testing D&O Rate Adequacy and Coverage Sufficiency

As I have previously noted on this site, several international trade regulatory regimes have become increasingly important for companies and their executives. These regulatory regimes include U.S. sanctions, export controls, anti-money laundering (AML), and anti-bribery and corruption laws. Recent developments, such as the War in Ukraine, trade tensions with China, and issues involving digital assets have heightened these concerns. Violations of these regimes can result in regulatory enforcement actions as well as in related civil litigation.

The latest example of a civil action following in the wake of a trade regulation enforcement action is the lawsuit filed earlier this week against data storage company Seagate Technology Holdings plc, after the company was hit with a U.S. Department of Commerce administrative penalty for violation of Export Administration Regulations (EAR) pertaining to the Chinese technology company, Huawei Technologies Co. Ltd. The recently filed securities suit shows how international trade regulation and enforcement can translate into corporate and securities litigation. A copy of the July 10, 2023, Seagate complaint can be found here.

Continue Reading Trade and Export Control Enforcement Leads to Securities Class Action Suit