SEC logoCybersecurity has been and remains one of the hot topics in corporate governance. Several federal regulatory agencies, including the SEC, have made it clear that cybersecurity is a high priority item and at the top of their agenda. The SEC’s particular cybersecurity focus has been on consumer privacy and on corporate disclosure. But though the SEC has made cybersecurity issues, including disclosure, a top priority, it appears to be the case that very few public companies are actually disclosing cybersecurity and data breach incidents in their SEC filings. The current disclosure practices could be a concern for investors – and for D&O underwriters.
Continue Reading Cybersecurity Disclosure Practices: What’s Up With That?

exxonThe question whether concerns about climate change-related disclosures might lead to regulatory enforcement actions or even liability claims has been around for some time, but though the concerns have remained, the regulatory actions and liability claims have not really materialized.  However, in the past week, the service of a subpoena on Exxon Mobil Corp. by New York Attorney General Eric T. Schneiderman has raised the possibility that an enforcement action against the energy giant relating to its climate change-related disclosures may be in the works. The Attorney General’s action also raises the question whether other companies and industries could also be targeted. These possibilities highlight possible corporate climate change-related enforcement and liability exposures.
Continue Reading Up Next?: Climate Change Disclosure and Corporate Liability Exposures

earthIn a series of letters sent to individual board members of various major energy companies and to a number of participants in the directors and officers liability insurance industry, three environmental groups contend that climate change denial by energy industry representatives presents a risk of personal liability to the individual energy company board members. The

While I have long predicted (refer here) the possibility of litigation against directors and officers of public companies concerning global climate change-related disclosures, to date the lawsuits have not materialized. Which is not to say that there have not been relevant developments – to the contrary, there have been many, as discussed below. There

In order to assign responsibility in connection with the enforcement of public welfare objectives, courts have developed the "responsible corporate officer doctrine," which in recent years has been applied with increasing frequency in environmental enforcement. A California appellate court recently applied the doctrine to enforce civil liability on the officers of a family run business.

In a development of potentially great significance for climate change disclosure and reporting issues, on August 27, 2008, New York Attorney General Andrew Cuomo announced (here) that Xcel Energy had entered a “binding and enforceable agreement” requiring the company “to disclose the financial risks that climate change poses to investors.” Xcel’s announcement regarding