For those whose job it is to worry about the U.S. litigation risk for non-U.S. companies, the focus historically has been on the risk of U.S. securities class action litigation. However, as detailed in a new white paper from AIG and the Clyde & Co law firm, over the last 18 months a small group of U.S. plaintiffs’ law firms has filed a series of shareholder derivative lawsuits in U.S. courts on behalf of non-U.S. companies and alleging violations of the companies’ home country laws. As discussed below, these lawsuits potentially could represent a significant new source of U.S. litigation exposure and D&O liability risk for directors and officers of non-U.S. companies. A copy of the paper, which is entitled “Shareholders Increasingly Targeting D&Os of Foreign Companies in New York Derivative Actions,” can be found here.
Continue Reading Litigation Alert: U.S. Derivative Lawsuits Against Boards of Non-U.S. Companies
Board Diversity Lawsuit Against The Gap Dismissed Based on Forum Clause
In the second dismissal motion ruling in one of the many board diversity lawsuits filed in recent months, a magistrate judge has granted the defendants’ dismissal motion in the suit against the board of clothing retailer The Gap. This latest ruling follows the dismissal motion grant last month in the similar lawsuit against Facebook’s board. As discussed below, the court’s dismissal of the case against The Gap’s board was based on the forum selection clause in the company’s bylaws. Northern District of California Magistrate Judge Sallie Kim’s April 27, 2021 ruling in the case can be found here.
Continue Reading Board Diversity Lawsuit Against The Gap Dismissed Based on Forum Clause
Unsponsored ADR Investors’ Securities Suit Dismissed on Forum Non Conveniens Grounds
I know from conversations with D&O insurance professionals outside the United States that they find it somewhere between astounding and incomprehensible that a company whose unsponsored level 1 ADRs trade over-the-counter in the U.S. can be subject to a U.S. securities lawsuit – but, as discussed in prior posts (here and here), that is what the Ninth Circuit and District Court held in the Toshiba securities lawsuit. However, a recent ruling in a securities suit involving global mining company Glencore plc suggests a means by which non-U.S. companies with unsponsored Level I ADRs in the U.S. nevertheless may still be able to avoid litigation in the U.S. In a July 31, 2020 ruling, District of New Jersey Judge Susan Wigenton granted the company’s motion to dismiss ADR investors’ securities suit against the company on forum non conveniens grounds.
Continue Reading Unsponsored ADR Investors’ Securities Suit Dismissed on Forum Non Conveniens Grounds
Ontario Court Rejects “Jurisdictional Overreach” for Canadian Securities Suits
There was a time only a few short years ago when the U.S. courts were the preferred forum for the litigation of securities class actions claims, arguably even claims whose relationship to the U.S. and to U.S. laws was slight. The U.S. courts role as preferred forum for securities suits was undermined by the U.S. Supreme Court’s 2010 decision in Morrison v. National Australia Bank, which underscored the fact that the U.S. securities laws apply only to domestic U.S. securities transactions. Since Morrison, a free-ranging inquiry has emerged to determine whether another country’s courts might emerge as the preferred forum for cross-border securities suits.
Among other countries, Canada has emerged as a candidate. However, a recent decision by Court of Appeal of Ontario examining the jurisdictional reach of Ontario’s securities laws expressly rejects the possibility that Ontario (where the bulk of Canadian securities suits are filed) “would become the default jurisdiction for issuers around the world.” The Court of Appeal’s July 11, 2018 decision in Yip v. HSBC Holdings can be found here. An August 9, 2018 memo from the Toronto-based Blake, Cassels & Graydon law firm can be found here.
Continue Reading Ontario Court Rejects “Jurisdictional Overreach” for Canadian Securities Suits
Foreign Investors Who Bought BP Shares Overseas Can Pursue English Law Claims in U.S. Court
The U.S. Supreme Court’s July 2010 decision in Morrison v. National Australia Bank seemed to sound the death knell for so-called “f-cubed” litigation – that is, lawsuits brought in U.S. courts under the U.S. securities laws by foreign investors who bought their shares in a foreign company on a foreign exchange. However, in an interesting
Texas Appellate Court Affirms Transocean Deepwater Horizon Derivative Suit Dismissal: An Interesting Angle on Corporate Inversion Transactions?
In a July 24, 2014 opinion (here), an intermediate Texas appellate court, applying Texas law, affirmed the trial court’s dismissal on forum non conveniens grounds of the Deepwater Horizon disaster-related shareholder derivative suit filed against Switzerland-domiciled Transocean Limited. The court’s ruling is interesting in and of itself, but it may be even more
Canadian Court Declines to Follow Morrison, Rejects BP’s Bid to Stay Claims of Investors Who Purchased Shares on Non-Canadian Exchanges
In its landmark decision Morrison v National Australia Bank, the U.S. Supreme Court said that the U.S. securities laws do not apply to share transactions that do not take place on U.S. securities exchanges. But do these principles operate the same way in other jurisdiction — would courts in other jurisdictions decline to apply
Side-Stepping Morrison?: Common Law Claims of Investors Who Purchased BP Shares Outside U.S. Survive Dismissal Motion
Since the U.S. Supreme Court issued its opinion in Morrison v. National Australia Bank, would-be claimants who purchased shares of a non-U.S. company outside the U.S. have struggled to find a way to pursue their claims in U.S. courts. Among other things, these claimants have tried to avoid Morrison’s federal securities claim-preclusive effect by
Fifth Circuit Affirms Dismissal of BP Deepwater Horizon Derivative Suit
The Deepwater Horizon platform explosion and oil spill took place in the Gulf of Mexico, about 250 miles southeast of Houston. The environmental damage took place in the Gulf and along the Gulf shore in the Southeastern United States. When BP’s shareholders tried to sue the board of directors of BP — a corporation organized under
BP Deepwater Horizon Derivative Suit Dismissed in Favor of English Forum
A wave of litigation followed in the wake of the April 2010 Deepwater Horizon oil spill. Among this litigation were several shareholder derivative suits filed against certain directors and officers of BP and of its U.S. subsidiary. At the time these cases first arose, I asked whether or not these suits involving (and ultimately for the