Tag Archives: International D & O

Guest Post: Addressing D&O Insurance in German Board Members’ and Managing Directors’ Management Services Agreements

A company’s obligations to its directors and officers with respect to the purchase and maintenance of D&O insurance is a topic of ongoing interest and concern for the individuals involved. In the following Guest Post, Burkhard Fassbach and Thilo Fleck take a look at this topic with a particular focus on the issues involving German … Continue Reading

Kiwi Supreme: Claimants’ “Charge” on D&O Insurance Blocks Payment of Directors’ Defense Costs

In a December 23, 2013 ruling that will be surprising and unwelcome to D&O insurers and their insureds in New Zealand (and perhaps elsewhere) , the New Zealand Supreme Court has reversed the holding of an intermediate appellate court and ruled that, by operation of a statutory “charge” on insurance in favor of third party … Continue Reading

The Brazilian Clean Companies Act

For those of you looking ahead to 2014, one date you will want to note on your calendar is January 29, 2014. That is the effective date of the Brazilian Clean Companies Act, a new anti-bribery statute that signals Brazil’s intention to crack down on corruption. The Act represents an operational and compliance challenge for … Continue Reading

Ontario Securities Suit Claimants Denied Leave to Proceed

Shareholder claimants seeking to pursue a misrepresentation claim under the Ontario Securities Act must obtain leave of court to proceed based on a statutory requirement that the plaintiff must show a “reasonable possibility that the action will be resolved at trial in favor of the plaintiff.” Ontario’s courts agree that this requirement sets a “low … Continue Reading

Canadian Courts Struggle With Jurisdictional Issues in Securities Suits

The question of when domestic securities laws provide remedies for investors who purchased their shares in foreign companies on foreign exchanges vexed U.S. courts for years until the U.S. Supreme Court sorted out the issues in Morrison v. National Australia Bank. But while the U.S. courts now have the  bright line standards of the Morrison … Continue Reading

Emerging Global Regulatory Enforcement and Cross-Border Collaboration

Among two of the most noteworthy recent global regulatory trends are the spread of anticorruption enforcement and the rise in cross-border enforcement collaboration. Both of these trends were evident in the Canadian government’s recent prosecution of the first individual ever convicted after trial under Canada’s equivalent to the FCPA, the Corruption of Foreign Public Officials … Continue Reading

Japanese Securities Litigation Trends: 2000-2012

The volume of misstatement-related securities litigation in Japan has “increased dramatically” since the 2004 revisions to Japanese securities laws, according to a June 2013 report from the consulting firm Alix Partners. The report, entitled “Recent Trends in Japanese Securities Litigation: 2000-2012,” can be found here. Even though misstatement-related securities suit filings in Japan were down … Continue Reading

UK Ministry Proposes Expanding Director Liability.

As part of its scheme to improve corporate transparency and director accountability, a UK government ministry has proposed what UK Business Secretary Vince Cable calls “tough measures” to “give the public greater confidence that irresponsible directors will face consequences for their actions.” These proposals, if adopted, could significantly increase UK corporate directors’ liability exposures in … Continue Reading

Motion to Dismiss Granted in Barclays Libor-Scandal Securities Suit

In a May 13, 2013 order (here), Southern District of New York Judge Shira Scheindlin granted defendants’ motion to dismiss the Libor-scandal related securities suit that had been filed against Barclays and two of its former executives following the company’s entry into a massive Libor-related settlement last summer. The suit’s dismissal is just the latest … Continue Reading

Guest Post: The German Two-Tier Corporate Board Structure and its Impact on D&O Insurance Cover

The liabilities of corporate officials are a reflection of the laws of the jurisdiction in which the corporation is chartered. The jurisdiction’s liability provisions in turn have important implications for the structure of the insurance put in place to protect the corporate officials.   In the following guest post, Michael Hendricks (pictured above left), the … Continue Reading

Have Class Actions in Canada “Reached Maturity”?

2012 was “another brisk year of class action activity” in Canada, according to a recent memorandum from the Osler Hoskin & Harcourt law firm entitled “Class Actions in Canada 2012” (here). There were a number of significant class action developments in Canada in 2012, including the “landmark” $117 million E&Y settlement in the Sino-Forest case … Continue Reading

New Zealand Appellate Court Overturns Controversial Decision Blocking D&O Defense Cost Reimbursement

An appellate court in New Zealand has “quashed” the controversial ruling of a  lower court ruling that former directors of the defunct Bridgecorp companies are not entitled to defense expense reimbursement under the companies’ D&O insurance policy where the companies’ liquidators have raised (but not yet proven) claims against them exceeding the policy’s limits of … Continue Reading

Class Actions Around the World

Although the class action lawsuit is most often associated with the litigious legal culture in the United States, the fact is that in recent years class action and other group litigation procedures have been expanding around the world. Forces of globalization and the rise of organized groups of aggrieved claimants have encourage a host of … Continue Reading

Ontario Court: Company with Shares Trading Only on Foreign Exchange Subject to Canadian Securities Suit

On March 30, 2012, in a decision that may highlight the extent to which Canadian courts are increasingly willing to enforce securities laws in ways that may have extraterritorial effects, the Ontario Court of Appeals held that the liability regime under the Ontario Securities Act applies to Canadian Solar, a company whose shares trade only … Continue Reading

Canada’s Highest Court Rules Proposed Federal Securities Regulator Unconstitutional

A legislative proposal to create a single federal Canadian securities regulator is unconstitutional, the country’s highest court has ruled. In a December 22, 2011 opinion (here), the Supreme Court of Canada ruled unanimously in an advisory opinion that the Act to create a single, unified securities regulator “as presently drafted” is not a valid exercise … Continue Reading

Kiwi Surprise: D&O Insurance Defense Cost Protection Unavailable When Prospective Claims Exceed Policy Limits

One of the primary purposes for which policyholders purchase D&O insurance is to provide directors and officers with defense cost protection in the event claims are made against them. However, a September 15, 2011 decision by a justice of the New Zealand High Court in Auckland (here) found that former directors of the defunct Bridgecorp … Continue Reading

Guest Post: Claims Against China-Based Reverse Merger Companies: A Tempest in a Teapot of Gunpowder Green Tea?

As numerous commentators have noted, one of the most distinctive litigation developments over the last twelve months has been the emergence of U.S. securities litigation against Chinese companies that obtained their listings on U.S. exchanges that a “reverse merger” with a publicly traded U.S. shell company.   Given the prominence of these issues, I am … Continue Reading

Leave to Proceed, Class Certification Given in Another Ontario Securities Suit

For the second time, a court has given investors leave to proceed and also certified a plaintiff class in a secondary market misrepresentations claim under the revised Ontario Securities Act. In an order dated March 1, 2011, Ontario Superior Court Justice Wolfram Tausendfreund granted leave to investors to proceed against Arctic Glacier Income Fund, its … Continue Reading

After Morrison, Recoveries for Non-U.S. Investors under the Dutch Collective Settlements Act?

  Among the questions that followed in the wake of the U.S. Supreme Court’s Morrison v. National Australia Bank decision has been whether and to what extent plaintiffs’ lawyers will resort to courts outside the U.S. to pursue securities claims on behalf of investors who purchased the defendant company’s shares outside the U.S. The action … Continue Reading

Imax Defendants Denied Leave to Appeal Rulings Allowing Ontario Securities Case to Proceed as Global Class Action

In a February 14, 2011 order (here), an Ontario Superior Court Justice has denied the motion of the defendants in the IMAX securities lawsuit pending in Ontario for leave to appeal the December 2009 rulings of Ontario Superior Court Justice Katherine van Rensberg granting the plaintiffs leave to pursue securities claims in a class proceeding. … Continue Reading

A “Global Guide” to Directors’ Liability and Indemnification

In today’s global economy, business increasingly is conducted cross-jurisdictionally. Company officials and their advisors increasingly must grapple with liability issues arising under the laws of multiple jurisdictions. These liability issues in turn can present complex indemnification and insurance questions. Simply identifying the operative legal considerations can present a significant challenge.   A newly updated legal … Continue Reading

NERA Releases Updated Canadian Securities Class Action Report

The number of outstanding securities class action lawsuits in Canada reached an all-time high during 2010 according to a January 31, 2011 report by NERA Economic Consulting entitled "Trends in Canadian Securities Class Actions: 2010 Update." The report can be found here. The report includes an appendix in which securities lawsuit trends in several other … Continue Reading