LexisNexis® Legal Newsroom
O.K., So Here’s the First Ebola Outbreak-Related D&O Lawsuit

Like everyone else, I have been following the Ebola outbreak news with a mixture of horror and fascination. I never in a million years imagined that I would have occasion to write about the Ebola outbreak on this blog. Perhaps due to a lack of imagination on my part, I never foresaw that there might...

Largest Derivative Lawsuit Settlements

My post earlier this week about the $275 million Activision Blizzard shareholder derivative lawsuit settlement – and in particular my suggestion that the Activision settlement may be the largest derivative suit settlement ever – provoked an interesting flurry of emails and conversations about...

Insolvent Company Directors’ Duties to Creditors Under Delaware Law

A question that frequently recurs is whether or not directors of insolvent companies have fiduciary duties to creditors. Creditors often attempt to argue that as companies move into the “zone of insolvency,” directors’ duties move from the company’s shareholders to the company’s...

Will Investors Sue Over the Sony Hack Attack?

As I noted in my recent rundown of the top D&O stories of 2014, one of the most important developments during the year just finished was the emergence of cyber security as a D&O liability concern. During 2014, plaintiff shareholders launched cyber breach-related derivative lawsuits against the...

Fiduciary Duty as a Source of Board Focus for Long-Term Shareholder Value Creation

The fiduciary duties of members of corporate boards are usually invoked in connection with directors’ potential liability exposures. However, in their January 2015 Harvard Business Review article entitled “Where Boards Fall Short” ( here ), Dominic Barton , global managing director...

Should There Be More Litigation Against Corporate Officers? (Uh, No.)

Over the past fifteen years, there has been a steady progression of corporate scandals, from Enron to options backdating to the excesses that led to the global financial crisis. These debacles were followed by waves of shareholder litigation. However, according to one legal scholar, the shareholder lawsuits...

Navigating Circuit Split, District Court Finds Omission of Item 303 Disclosure Actionable Under Section 10(b)

One of the more interesting issues that has emerged recently in the securities litigation arena is the question of whether or not the alleged failure to make a disclosure required by Item 303 of Reg. S-K is an actionable omission under Section 10(b) and Rule 10b-5. The Ninth Circuit, in its October 2014...

An Alarming Liability Award Against Not-for-Profit Organization’s Directors and Officers

A question that frequently recurs when I am speaking to directors and officers of non-profit organizations is why – given that their firms have no shareholders – they need to bother with D&O insurance. The reality is that even though officials at non-profit firms don’t have to worry...

Bank Directors Facing Increased Regulatory Scrutiny, Raising Fears of Potential New Liability Exposures

Federal banking regulators have stepped up their interactions with and scrutiny of bank directors, according a recent Wall Street Journal article. The March 31, 2015 article, entitled “Regulators Intensify Scrutiny of Bank Boards” ( here ) details the ways in which regulators are “zeroing...

Another U.S. Securities Suit Arising From Overseas Corruption Investigation

In an earlier post , I noted that a significant factor driving securities litigation filings so far this year has been the rising number of U.S. securities lawsuits involving non-U.S. companies. A number of different factors are contributing to the filing of these suits, but among the factors is the...

Taking Control of Cybersecurity: A Practical Guide for Officers and Directors

Major cybersecurity attacks of increased sophistication — and calculated to maximize the reputational and financial damage caused to the corporate targets — are now commonplace. These attacks have catapulted cybersecurity to a top priority for senior executives and board members. To help...

Meanwhile, Back at the FDIC Failed Bank Litigation Ranch

As the global financial crisis has receded further into the past and as other issues have crowded to the top of the agenda, the remaining vestiges from the credit crisis have faded into the background. But though the peak of the crisis is now nearly seven years behind us, the crisis remnants continue...

Tenth Circuit: D&O Insurance Policy’s Insured vs. Insured Exclusion Unambiguously Precludes Coverage for FDIC’s Failed Bank Claims

In an important decision concerning D&O insurance coverage in connection with failed bank claims, the Tenth Circuit, applying Kansas law, held that a D&O policy’s insured vs. insured exclusion unambiguously precluded coverage for claims brought by the FDIC as receiver of a failed bank against...

Fourth Circuit Affirms Dismissal of All Claims Against Failed Bank’s Directors, Revives Negligence Claims Against Bank’s Officers

On August 18, 2015, in an interesting opinion that takes a close look at exculpatory bylaw issues and the business judgment rule under North Carolina law, the Fourth Circuit affirmed in part and reversed in part the district court’s dismissal of the failed bank lawsuit the FDIC had filed against...

The Short-Termism Debate: Are There D&O Liability Issues Involved, Too?

In recent months, commentators from across the political spectrum, largely in response to perceived excesses of activist investors, have called for changes to discourage “ short-termism ” – that is, the perceived excessive focus of businesses on short-term results rather long-term value...

When Data Hacks Lead to D&O Lawsuits, Actual and Threatened

Many observers, including even this blog, have speculated whether the rising wave of data breaches and cyber security attacks will result in litigation against the directors and officers of the affected companies. Indeed, in 2014, there were two sets of lawsuits filed against the boards of companies...

Data Breach-Related Derivative Lawsuit Filed against Home Depot Directors and Officers

In early 2014, when plaintiffs initiated data breach-related derivative lawsuits against the boards of Target Corp. ( here ) and Wyndham Worldwide ( here ), there was some speculation that these cases might be the first of what could become a wave of data-breach related D&O lawsuits. But then the...

D&O Insurance: The Question of Coverage for TCPA Claims

The Telephone Consumer Protection Act (TCPA) has proven to be a fruitful source of consumer class action litigation. Plaintiffs’ lawyers are attracted by the potentially lucrative recoveries under the statue, and indeed several recent settlements in TCPA class action lawsuits have run into the...

Delaware: Time’s Up for Disclosure-Only Settlements in Merger Objection Suits?

The fact that these days virtually every public company M&A transaction draws at least one merger objection lawsuit has provoked concern from many quarters. As I noted in a prior post , it recently became clear that among those concerned are the judges on the Delaware Court of Chancery. Based on...

Book Review: Cyber Risks, Social Media and Insurance

We live in a world in which rapidly shifting technologies and communications modalities have changed the way we interact and conduct business. These new media and means of interaction have introduced innumerable benefits and efficiencies. Unfortunately, these new alternatives have down sides; among other...

A Guide to Directors’ Duties and Liabilities in Europe

One of the vestiges of the global financial crisis is that company directors and officers now face more scrutiny than ever. This scrutiny, in turn, has led to a greater liability exposure for corporate officials, as well. This increased scrutiny and amplified liability exposure applies not only in the...

SEC Enforcement Actions Against Outside Directors

From time to time, the SEC reiterates its view of the critical gatekeeper role companies’ outside directors play in safeguarding investors’ interests. Nevertheless, it has been relatively rare for SEC to pursue enforcement actions against outside directors based on an alleged failure to fulfill...

Money Laundering Allegations and Follow-On Securities Litigation

In the wake of the 9/11 terrorist attacks, Congress enacted or expanded a number of laws regarding the global financial system in order to combat money laundering and promote national security. As I have noted in prior post (most recently here ), regulatory enforcement activity under these laws represents...

The “Myth” of Outside Director Liability and the Critical Importance of D&O Insurance

In the world of corporate governance, there are a number of common presumptions about board structure and practices. However, according to a recent paper, many of these presumptions may in fact represent corporate governance “myths.” In their September 30, 2015 paper entitled “Seven...

Ninth Circuit: Embezzler Executive’s Knowledge Can Be Imputed to Company in Innocent Third Party-Filed Securities Suit

For purposes of determining the scienter of a corporate entity defendant under the federal securities laws, a company’s executives’ knowledge generally is imputed to company. There is an exception to these general principles – the “ adverse interest exception ” – which...