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Following the U.S. Supreme Court’s decision invalidating tariffs imposed under the International Emergency Economic Powers Act (IEEPA), litigation risk has entered a new phase. As previously noted on The D&O Diary, early lawsuits seeking recovery focused on companies that passed tariff costs on to consumers. A newly filed class action against Sony Interactive Entertainment suggests a second wave may now be emerging; one targeting companies for allegedly pursuing a “double recovery” by retaining both higher consumer prices and government tariff refunds.

Continue Reading A Second Wave of Tariff Recovery Litigation and Expanding D&O Risk
Sarah Abrams

In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, takes a look at recent changes in the DOJ’s Data Security Program (DSP) and discusses the D&O liability and insurance implications. I would like to thank Sarah for allowing me to publish her article as 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: Company Data Secure? The DOJ is Checking

In the latest development in what has become a widespread push toward greater board diversity, Nasdaq has filed a proposal with the SEC that would require Nasdaq-listed companies to disclose whether the companies meet Nasdaq-specified board diversity requirements. If approved, the new listing rules would require companies to have at least one female director and one director who is a racial minority or who self-identifies as LGBTQ+, or to provide an explanation why they do not. A copy of Nasdaq’s December 1, 2020 proposal can be found here. Nasdaq’s December 1, 2020 press release concerning the proposal can be found here.
Continue Reading Nasdaq Pushes Proposed Board Diversity Listing Rules

In an interesting development that could prefigure further climate change-related disclosure litigation, an Australian investor has filed a lawsuit against the Australian Federal Government and two government officials, on her own behalf and on behalf of over investors in Australian Government Bonds, for allegedly failing to disclose to investors the climate change risks attached to the sovereign bonds.  According to an August 12, 2020 memo from the Allens law firm (here), the suit is “a first-of-its-kind action worldwide,” one that could serve as a “stepping stone” toward both more activist litigation and more commercially focused climate change disclosure litigation.
Continue Reading Australian Government Sued Over Sovereign Bond Climate Change-Related Disclosures

The threat of a cybersecurity breach is unfortunately one of the ongoing business risks companies face n the current operating environment. For that reason, corporate disclosures of cyber-breach related risks have been a priority of the SEC’s Division of Corporate Finance as well as the agency’s new Chair, Mary Jo White. The agency’s developing practices…

The tone public companies use in their disclosure statements can affect the companies’ susceptibility to securities class action litigation, according to a recent academic study. The authors found that firms hit with securities litigation generally used more optimistic language in their disclosure statements than did firms that were not sued. Based on these findings, the…