Earlier this year, after Facebook was sued in a securities class action following news that it had given access to personal user information to Cambridge Analytica, I questioned whether privacy issues might represent the next big corporate liability exposure. Among other things, in making this suggestion, I was taking into consideration that fact that the EU’s General Data Protection Regulation (GDPR) was about to go into effect. More recent developments confirm my view that privacy issues likely will represent an area of specific and growing concern and potential liability for companies, their management, and their boards.
Continue Reading California Enacts Sweeping Privacy Legislation
Torrid Securities Suit Filing Pace Continues in Year’s First Half
The torrid pace of securities class action lawsuit filings continued in the first half of 2018, coming in at a rate only very slightly below last year’s record-setting pace. While a significant number of the first half filings are attributable to merger objection lawsuit lawsuits, the number of traditional filing alone during the first half of the year were well above historical levels. If the first half’s pace continues in the second half of the year, the projected number of year-end filings would approach last year’s elevated total.
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SEC Public Company Enforcement Action Continue Steep Decline in First Half FY 2018
The number of SEC enforcement actions against public companies and their subsidiaries declined in the first half of FY 2018 compared to the comparable year prior period, continuing a sharp downward trend that began in the second half of FY 2017 and falling to the lowest level in years, according to a new report from Cornerstone Research, written in collaboration with the NYU Pollack Center for Law & Business. Monetary settlements during the first half of fiscal 2018 also fell to their lowest level in years. The report, entitled “SEC Enforcement Activity: Public Companies and Subsidiaries, Midyear FY 2018 Update” (here), reports on SEC enforcement activity involving public companies and their subsidiaries for the first half of fiscal 2018, which ended March 31, 2018. Cornerstone Report’s May 15, 2018 press release about the report can be found here.
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Wendy’s Settles Data Breach-Related Derivative Lawsuit
More recent data breach-related D&O lawsuits have been filed in the form of securities class actions, one of which, the Yahoo securities class action lawsuit, recently resulted in a sizable settlement. Before that though, during the period 2014 to 2016, there was a series of data breach related suits filed in the form of shareholder derivative actions. By and large, these cases did not fare particularly well, largely resulting in dismissals. The last of these data breach-related derivative lawsuits that remained pending is the one filed against fast-food company Wendy’s. Now the Wendy’s case has also settled, albeit for a combination of cybersecurity and governance therapeutics and agreement to pay the plaintiffs’ attorneys fees. The resolution of this last remaining shareholder derivative suit again raises a question that has been much discussed, of the extent to which data breach-related issues will lead to more D&O litigation.
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Another Look at 2017 Securities Litigation Against Life Sciences Companies
As I have previously noted, the elevated number of securities class action lawsuits against life sciences companies was an important factor in the increase of securities lawsuit filings in 2017. The significant volume of securities suits involving life sciences companies has been the subject of focused analysis, as discussed here. Now the Sidley Austin law firm has released its exhaustive review of the 2017 securities litigation against life sciences companies. Among other things, the report finds that while the numbers of securities suit filings against life sciences companies has increased in recent years, the companies are faring worse at the dismissal motion stage in the district courts relative to the most recent years. The report summary can be found here. The full report can be found here.
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Fewer U.S. Listed Companies – Is That a Problem?
Between 1996 and 2016, the number of U.S. listed companies declined by about 50 percent. There are now fewer U.S. listed companies than there were in 1976. Some observers have raised the alarm about this decline. For example, SEC Chair Jay Clayton in a speech last summer called the decline in the number of U.S. listed companies “a serious issue for our markets and the country.” But before we can decide whether or not the lower number of public companies is a problem, much less what to do about it, we need to take a look at what is happening and why it is happening. A closer look suggests that the situation is more complex than it might appear at first glimpse.
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Ranking the Plaintiffs’ Firms by 2017 Shareholder Recoveries
As I have previously noted (for example here), a number of reports have analyzed the 2017 approved securities class action lawsuit settlements in statistical and numeric terms, such as the aggregate, average, and mean settlement amounts. But what do the 2017 securities suit settlements look like when broken down according to the lead plaintiffs’ firm that negotiated the settlement? An April 4, 2018 study from ISS Securities Class Action Services entitled “The Top 50 of 2017” (here) takes a look at this issue and reports some interesting conclusions, discussed below. The organization’s April 4, 2018 press release can be found here.
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Wisconsin Become First State to Mandate Disclosure of Litigation Funding Arrangements
As the use of third-party litigation funding has become more widespread, one issue that has been debated is whether or not the existence and details of a funding arrangement must be disclosed to the adversarial parties. As I have noted in prior posts, courts have struggled with the question of whether or not funding arrangements must be disclosed under existing discovery rules. A number of proposals providing for mandatory disclosure of litigation funding arrangements have been proposed. Now, Wisconsin has become the first state to adopt a provision requiring the disclosure of litigation funding arrangements. The state’s action is just the latest step in what seems to be a general move toward requiring disclosure.
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Fintech Company Hit with Securities Suit Completed Reg. A+ Offering in December
One of the changes Congress introduced in the Jumpstart our Business Startups (JOBS) Act of 2012 was the creation of a new securities offering exemption for smaller companies. In March 2015, the SEC introduced rules implementing this provision, known as Regulation A+. The track record for Reg. A+ offerings has been mixed, as discussed further below. Recent events involving Longfin Financial, a blockchain fintech company that just completed a Reg. A+ offering in December 2017 highlights many of the questions and concerns about Reg. A+ offerings. Longfin’s share price plunged over 80% after the company announced on Monday that its offering and a subsequent acquisition are the subject of an SEC investigation. Now the company has been hit with a securities class action lawsuit. As discussed below, these recent developments have a number of implications.
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We Need to Talk About ICOs, Cryptocurrency, and Blockchain
I am sure that when most people think about the kind of organization that might engage in an Initial Coin Offering (ICO), they typically are thinking of a start-up venture — an enterprise trying to get off the ground. But there have been some high-profile cases of well-established companies trying to jump on board the cryptocurrency bandwagon. For example, Kodak, the iconic film and photographic equipment company that has fallen on hard times in recent years, announced a plan earlier this year to launch KodakCoin, a photography-focused cryptocurrency that is supposed to help photographers manage their collections by creating permanent, immutable records of ownership. (Kodak’s later postponed the planned launch.)
The online retailer Overstock.com is another established company that late last year announced plans for a cryptocurrency offering. Overstock’s cryptocurrency plans were derailed earlier this month after its planned offering drew SEC scrutiny. Now, the company has been hit with a securities class action lawsuit relating to its miscarried cryptocurrency initiative, as discussed below. Though much of what happened to Overstock is company- specific, the sequence of events and the overall circumstances may have some important lessons as the cryptocurrency phenomenon evolves.
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