In what the plaintiffs' lawyers claim to be the largest derivative lawsuit settlement ever, the parties to the News Corp. shareholder derivative litigation have agreed to settle the consolidated cases for $139 million. The company also agreed to tighten oversight of the company's operations and to establish a whistleblower hotline, as well as other corporate therapeutics. The cash portion of the settlement is to be funded entirely by D&O insurance. The settlement is subject to court approval.
The parties' April 17, 2013 memorandum of understanding regarding the settlement can be found here. The plaintiffs' lawyers' April 22, 2013 press release in which, among other things, the plaintiffs' lawyers state that the settlement is "the largest cash derivative settlement on record" can be found here. The lead plaintiffs' press release can be found here. As reflected in the press releases as well as is stated in the many media reports about the settlement (refer for example, here), the entire cash portion of the $139 million settlement is to be funded by D&O insurance.
The first of the lawsuits against the News Corp. board was filed in Delaware Chancery Court in March 2011, asserting claims in connection with the company's $675 million acquisition of Shine Group, Ltd., a U.K.-based television production company owned by Elizabeth Murdoch, daughter of News Corp. Chairman Rupert Murdoch. Elizabeth Murdoch allegedly made $250 million in the acquisition.. Later complaints expanded on claims relating to the Shine Group acquisition and added extensive additional claims seeking to hold the company's directors accountable for the scandal surrounding the company's use and attempted cover-up of illegal reporting tactics of some News Corp. journalists in the U.K. The various cases were later consolidated in the Delaware Chancery Court.
In their Third Amended Consolidated Complaint (here), the plaintiffs alleged that the company's board's oversight of the company's affairs represented a "textbook example of failed corporate governance and domination by a controlling shareholder." The complaint alleges that for years "the Board has condoned Murdoch's habitual use of News Corp. to pursue his quest for power, control and political gain and to enrich himself and his family members, at the Company's and its public shareholders' expense." The complaint alleges that the ongoing scandals have not only harmed the company's reputation and cost it millions of defense costs and other expenses, but also that the company's share price is artificially depressed because of the negative association of the company with Murdoch.
The defendants filed a motion to dismiss the consolidated amended complaint. The parties argued the motion to dismiss on September 19, 2012 (refer here). While the dismissal motion was pending, the parties engaged in mediation that ultimately resulted in settlement.
The plaintiffs' lawyers claim that this is the largest cash shareholders' derivative settlement ever, and I am certainly in no position to dispute that. I have been tracking derivative suit settlements for years. There have been several shareholder derivative suit settlements that were nearly as large as the News Corp. settlement but as far as I can tell none that were quite as big:
These settlements are all dwarfed by the $2.876 billion judgment entered in June 2009 against Richard Scrushy in the HealthSouth shareholders' derivative lawsuit in Jefferson County (Alabama) Circuit Court, but that astronomical judgment represents its own peculiar point of reference, like some odd parallel universe. It also was of course a judgment following trial rather than a settlement.
Another peculiar point of reference is the $1.262 billion judgment that Chancellor Leo Strine entered in October 2011 the Southern Peru Copper Corporation Shareholder Derivative Litigation (about which refer here). That case also represents its own form of litigation reality, and it too represents a derivative suit judgment following trial, rather than a settlement.
Another derivative lawsuit resolution that is worth considering in the context of the "largest ever" question is the December 2007 settlement of the UnitedHealth Group options backdating-related derivative lawsuit. As discussed here, the lawsuit settled for a total nominal value of approximately $900 million. However, while the press reports at the time described the settlement as the largest derivative settlement ever, the value contributed to the settlement consisted of the surrender by the individual defendants of certain rights, interests and stock option awards, not cash value in that amount.
Aside from the question of the News Corp. derivative suit settlement's sheer size, there is also the fact that the settlement was funded entirely by D&O insurance. Given the amount of the settlement, the settlement costs undoubtedly were distributed across the several carriers that participated in News Corp.'s D&O insurance program. This large settlement not only represents a serious and unwelcome development for the specific carriers involved but it also represents a potentially unwelcome event for the D&O insurance industry in general, for what it might represent as far as the severity potential of shareholders' derivative litigation.
In the past, going back ten years or so, shareholders' derivative suits typically did not present the possibility of significant cash payouts for D&O insurers, at least in terms of settlements or judgments. The cases did present the possibility of significant defense expense and also of the possibility of having to pay the plaintiffs' attorneys' fees, but by and large there was usually not a cash settlement component. As the significant examples above show, that has clearly changed in more recent years.
This trend gained particular momentum with the options backdating scandal. Many of the options backdating cases were filed as derivative suits rather than as securities class action lawsuits (largely because the options backdating disclosures did not always result in the kinds of significant share price declines required to support a securities class action lawsuit). Many of the options backdating cases settlements included a cash component, and as illustrated by the Broadcom case mentioned above, some of the options backdating derivative suit settlements included very substantial cash components
The inclusion of a significant cash component has also been a feature of the settlements of some of the merger objection suits that have been filed as part of the current upsurge in M&A-related lawsuit that have been filed in recent years, as illustrated by the El Paso settlement mentioned above.
This upsurge in the number of derivative suit settlements that include a significant cash component can only be viewed with alarm by the D&O insurance industry. For many years, D&O insurers have considered that their significant severity exposure consisted of securities class action lawsuits. The undeniable reality is that in at least some circumstances, derivative suits increasingly represent a severity risk as well. And the settlement amounts themselves represent only part of the D&O insurers' loss costs. The D&O insurers also incur millions and possibly tens of million of defense cost expense in these derivative suits. I can only imagine that in the News Corp. derivative suit, for example, that the cumulative defense expense was in the millions of dollars.
An even more concerning aspect of the rise of significant cash settlements in derivative cases for D&O insurers is that these settlement amounts represent so-called "A Side" losses. That is, the losses are paid out under the portion or the D&O insurance policy that provide insurance for nonindemnifiable loss. A derivative suit settlement obviously is not indemnifiable, because if it were to be indemnified, the company's would make the indemnity payment to itself. For the "traditional" D&O insurance carriers, there is perhaps no particular pain associated with the fact that the loss is paid under the "Side A" portion of the policy, as opposed the other policy coverage (that is, the "Side B" or "Side C" coverage that are more typically called into play). But these days many companies carry --in addition to their traditional D&O insurance that includes all three coverages (that is, they include Sides A, B and C coverage) -- additional layers of excess Side A insurance.
This excess Side A insurance would not be available to provide funding for, say, a securities class action lawsuit, at least if the corporate defendant were solvent, because the settlement of a securities class action lawsuit is an indemnifiable loss to which coverages B and C might apply but to which coverage A does not apply. However, the Side A coverage does apply to a shareholders' derivative lawsuit settlement because the settlement amount represents a nonindemnifiable loss. So while a jumbo securities class action settlement typically would not trigger coverage under an Excess Side A policy, a jumbo derivative settlement would trigger the Excess Side A policies.
The question for the carriers providing this type of excess Side A insurance is whether or not the premiums they are getting are adequate to compensate them for the risks of the kinds of losses associated with large cash shareholders derivative settlements. By and large, the carriers providing this insurance consider that their most significant exposure is related to claims in the insolvency context. But as this settlement and the Broadcom settlement mentioned above demonstrate, it is also possible that the Side A insurance can be implicated in a jumbo derivative settlement as well as in a settlement in the insolvency context.
The increasing risk of this type of settlement represents a significant challenge for all D&O insurers, but particularly for those D&O insurers concentrating on providing Excess Side A insurance. Those insurers will have to ask how they are to underwrite the risks associated with these kinds of exposures, and how they are to make certain that their premiums adequately compensate them for the risk.
Dan Fisher has an interesting April 22, 2012 article in Forbes (here) discussing the questions associated with the funding of this type of settlement exclusively through D&O insurance.
Finally, as Alison Frankel points out in an April 22, 2013 post on her On the Case blog (here), the News Corp. settlement includes what she describes as an "historic concession": in the settlement, News Corp. agreed "to disclose its campaign and political action committee contributions to shareholders and its lobbying and Super PAC spending to the board." Frankel quotes sources to the effect that the News Corp. case represents the first time that a derivative lawsuit has been used as a vehicle to obtain enhanced disclosure of corporate political spending.
Read other items of interest from the world of directors & officers liability, with occasional commentary, at the D&O Diary, a blog by Kevin LaCroix.
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