Sarah Abrams

As I noted in a post at the time (here), last Thursday, the U.S. Supreme Court issued its decision in SEC v. Jarkesy, striking down the SEC’s use of in-house courts in enforcement actions seeking monetary penalties. Then on Friday, the Court issued its decision in Loper Bright Enterprises v. Raimondo, in which the court wiped out the so-called Chevron doctrine, in which courts deferred to agency interpretations of ambiguous statutes. In the following guest post, Sarah Abrams, Head of Claims, Baleen Specialty, a division of Bowhead Specialty Underwriters, takes a look at these two decisions and examines some of the decisions’ implications from a D&O insurance perspective. I would like to thank Sarah for allowing me to publish her article as a guest post 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 Sarah’s article.Continue Reading Guest Post: Regulatory Coverage Impact on D&O Insurers Post-US Supreme Court Decisions in Jarkesy and Loper

In my recent wrap-up of the top D&O stories of 2023, I noted that one of the key developments during the past year was California’s adoption of new climate change disclosure requirements, which were enacted at a time when there was the added prospect that the SEC would finally release its own climate change disclosure guidelines by April 2024. While the California requirements have not yet been implemented and the final SEC disclosure guidelines have not yet even been released, there are growing signs that these climate change-related disclosure requirements may face significant hurdles and challenges.

It is not news that the SEC disclosure guidelines, whenever they are finally released, likely will face significant legal challenges, as I have previously noted on this site (here). However, this past week, in a Congressional hearing before a House Financial Services subcommittee, as reported in a January 18, 2024, Law360 article (here), spokespersons for conservative and business interests reiterated their belief that the SEC’s climate change disclosure guidelines, as proposed, reflect “several deficiencies,” and likely will face significant legal challenges.Continue Reading Climate Change Disclosure Requirements Face Hurdles and Challenges

sup ct 4In the flurry of opinions and orders on Monday on the final day of the U.S. Supreme Court’s term, and amid the hubbub over the Court’s action on the Trump administration travel ban order, you might well have overlooked the fact that on Monday the Court also agreed to take up the question of whether or not the Dodd-Frank Act’s anti-retaliation provisions apply to and protect individuals who did not make a whistleblower report to the SEC. The lower courts have struggled with the question of whether or not the anti-retaliation protections extend to individuals who file internal reports within their own companies. A split on the issue has developed and now the U.S. Supreme Court will have the opportunity to address the question in the case of Digital Realty Trust v. Somers. The Court’s June 26, 2017 order granting Digital Realty Trust’s petition for a writ of certiorari can be found here.
Continue Reading Supreme Court to Review Whether Dodd-Frank Anti-Retaliation Provisions Protect Internal Whistleblowers

gavelWithin the Dodd-Frank Act’s whistleblower provisions, Congress included some stiff anti-retaliation protections. Since the Act’s passage, however, the lower federal courts have struggled to try to determine whether the anti-retaliation protections apply only to whistleblowers who file reports with the SEC or whether or not the protections extend to individuals who file internal whistleblower reports within their own companies. A split on this issue has developed within the federal circuit courts and now the United States Supreme Court may have the opportunity to address the question.
Continue Reading Which Whistleblowers Can Claim Dodd-Frank Act Anti-Retaliation Protection?