After the Delaware Supreme Court’s March 2020 decision in Salzberg v. Sciabacucchi upholding the facial validity of corporate charter provisions designating federal court as the forum for Securities Act liability claims, several questions remained. Among the questions is whether others’ states courts will recognize and enforce federal forum provisions in Delaware corporations’ charters. This issue has been teed up for decision in a Section 11 lawsuit pending in San Mateo County court in California, in a case involving Dropbox. Dropbox has filed a motion urging the California state court to dismiss the action, in reliance on the federal forum provision in its corporate charter.

As discussed Alison Frankel’s July 13 post on her On the Case blog (here), a group of six ex-judges from Delaware has now entered an amicus brief on the issue in the case, urging the California court to recognize Delaware legal authority and enforce the federal forum provision in Dropbox’s charter. The Dropbox case, according to Frankel, is “shaping up as an early test of the application of the [Sciabacucchi decision] that forum selection clauses requiring shareholders to litigate Securities Act claims in federal court are facially valid because they concern the corporation’s internal affairs.”
Continue Reading California Court to Address Enforceability of Delaware Corporation’s Federal Forum Provision

Regular readers know that among the recurring themes on this site are concerns about problems with the application of notice rules to preclude insurance for claims that would otherwise be covered under the policy. These problems are, in my view, particularly abrupt where a claims is made during one policy period and the notice is provided during the policy period of a subsequent renewal policy issued by the same insurer. I have argued that continuity of coverage between the two policies and with the same insurer ought to be taken into consideration and that coverage should be denied only if the insurer can show that the late notice of claim during the renewal period prejudiced the insurer’s interests. In a recent appeal, the Ninth Circuit rejected this continuity of coverage argument. The appellate court’s opinion, though brief, raises a number of interesting points, as discussed below.
Continue Reading Ninth Circuit Rejects Continuity of Coverage as Response to Late Notice of Claim

On my beat here at The D&O Diary, I cover the liabilities of corporate directors and officers. One objection I frequently hear is that I focus too much public companies and not enough on private companies. The reason I write about public company issues more than private company concerns is that the public company world usually is more eventful. However, every now and then, something comes up involving a privately-held company that reminds all of us that plenty happens in the private company D&O world, too. The most recent example is the shareholder derivative and class action lawsuit filed last week against executives of the electronic cigarette company, Juul Labs. As discussed below, this new lawsuit highlights the exposures that private company directors and officers can face and underscores the fact that even private companies can get hit with shareholder class action lawsuits.
Continue Reading Private Company Directors and Officers Hit with Shareholder Class Action Lawsuit

John M. Orr
Jully Y. Rojas

As many readers undoubtedly are aware, California’s governor recently signed into law legislation that would re-classify app-based workers as “employees” rather than as “independent contractors. As discussed below in a guest post written by John M. Orr and Jully Y. Rojas, these recent changes in California law could have national significance. The changes could have significant Employment Practices Liability Insurance implications as well. John is a Director in Willis Towers Watson’s FINEX (Financial, Executive & Professional Risk) division. Jully is a member of FINEX’s Claims & Legal Group. Both are resident in the firm’s San Francisco office. The authors wish to thank Talene Carter, Willis Towers Watson’s Employment Practices Liability product leader, for her insights and guidance. A version of this article previously appeared on the Willis Towers Watson site. I would like to thank John and Jully for their willingness to allow me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors in topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is John and Jully’s article.
Continue Reading Guest Post: Classifying Gig Economy Workers under Changing California Law

Under the so-called “notice-prejudice Rule” applicable in some jurisdictions, insurers can deny coverage for claims based on the policyholder’s late provision of notice of claim only in the event that the late notice materially prejudiced the insurer. In a recent decision, the California Supreme Court, ruling on questions certified to the Court from the Ninth Circuit, held that the notice-prejudice rule represents a “fundamental public policy” under California law potentially sufficient to override the choice of law provision in the parties’ insurance contract. The Court also held that the notice-prejudice rule also applies to the consent to incur expense provisions in first-party insurance policies. As discussed below, there are a number of interesting aspects to the court’s ruling. The California Supreme Court’s August 29, 2019 decision in Pitzer College v. Indian Harbor Insurance Company can be found here.

Continue Reading Cal. Sup. Ct.: Notice-Prejudice Rule Represents a Fundamental Public Policy

As anyone involved in the world of D&O insurance knows, a frequently recurring coverage issue is the question of whether or not the insured has provided timely notice of claim as required by the policy. These kinds of  disputes takes a variety of forms, but one particular recurring variation involves the question whether or not the policyholder has satisfied the policy’s notice requirements when a claim is made against the policyholder during the policy period of one policy but the policyholder does not provide notice until the policy period of a subsequent renewal policy. That was the issue in a case recently decided by the Sixth Circuit Court of Appeals, in which the appellate court affirmed the district court’s holding that the policyholder’s provision of notice during the renewal policy of a claim made during a prior policy period did not satisfy the applicable notice requirements. Because this is a recurring claims issue, I have some thoughts and suggestions about this situation, below. The Sixth Circuit’s May 31, 2019 opinion in the case can be found here.
Continue Reading D&O Insurance: Continuity of Coverage as a Counter to Late Notice

Earlier this year, after Facebook was sued in a securities class action following news that it had given access to personal user information to Cambridge Analytica, I questioned whether privacy issues might represent the next big corporate liability exposure. Among other things, in making this suggestion, I was taking into consideration that fact that the EU’s General Data Protection Regulation (GDPR) was about to go into effect. More recent developments confirm my view that privacy issues likely will represent an area of specific and growing concern and potential liability for companies, their management, and their boards.
Continue Reading California Enacts Sweeping Privacy Legislation

In the following guest post, Boris Feldman of the Wilson Sonsini law firm takes a look at important current developments in California shareholder litigation. Boris’s article previously was published as an AIG whitepaper. I would like to thank Boris and AIG for allowing me to publish this article as a guest post. 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 Boris’s article.
Continue Reading Guest Post: Current Developments in Shareholder Litigation in California

david danaAmong the many concerns that arise whenever unauthorized appropriation or use of consumer data occurs is the possible violation of the consumers’ privacy that the access may represent. In numerous cases, aggrieved parties have tried to assert claims for these alleged privacy violations, but by and large these attempts have not been successful. However, as