The DO Diary | A Periodic Journal Containing Items of Interest From the World of Directors Officers

Time 2020-07-04 19:02:48

Web Name: The DO Diary | A Periodic Journal Containing Items of Interest From the World of Directors Officers

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A Periodic Journal Containing Items of Interest From the World of Directors Officers Liability, With Occasional CommentaryLargely due to a significant decline in the number of filings during May and June, the number of federal court securities class action lawsuit filings in the first half of 2020 was well below the number of filings at the same point last year – although still well above long-term historical levels. The number of first half filings was significantly boosted by a cluster of securities suit filings against cryptocurrency companies that were sued on a single day in April, as well as by the number of coronavirus outbreak-related securities suits. Continue Reading Securities Suit Filings Decline in Year’s First HalfAs noted in a prior post, on June 22, 2020, the U.S. Supreme Court entered its opinion in Liu v. SEC, in which the Court addressed a number of questions surrounding the SEC’s authority to seek disgorgement. In the following guest post, Stephen Cutler, Michael Osnato, Meaghan Kelly and M Moore of the Simpson Thacher law firm take a closer look at the Court’s opinion and consider its implications. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article. Continue Reading Guest Post: Supreme Court Affirms SEC’s Disgorgement Remedy, but Places Limits on Its UseOne of the shorthand expressions sometimes used to refer to shareholder class action litigation is to call them “stock drop lawsuits.” Securities suits do indeed involve stock drops. But how often do stock drops actually result in lawsuits? That is the interesting questions asked in the following guest post from Stanford Law School Professor Michael Klausner and Sam Blake Curry and Jason Hegland of Stanford Securities Litigation Analytics. I would like to thank the authors for allowing me to publish their article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the authors’ article. Continue Reading Guest Post: Stock Drop LawsuitsOver the last two years, there have been two important judicial decisions concerning Section 11 litigation. In March 2018, the United States Supreme Court unanimously held in the Cyan case that state courts retain concurrent jurisdiction over lawsuits asserting liability claims under the Securities Act of 1933, a development that has increased the number of state court securities class action lawsuits. In March 2020, in Salzberg v. Sciabacucchi, the Delaware Supreme Court upheld the facial validity of corporate charter provisions requiring Section 11 claims to be litigated in federal court. A June 22, 2020 post of the CLS Blue Sky Blog entitled “State Section 11 Litigation in the Post-Cyan Environment (Despite Sciabacucchi)” (here) assesses the Section 11 litigation environment in light of these developments. The paper, written by Stanford Law School Professor Michael Klausner and Jason Hegland, Carin LeVine, and Jessica Shin of Stanford Securities Litigation Analytics, summarizes the authors’ more detailed academic paper (here), as discussed below. Continue Reading The Post-Cyan Section 11 Litigation EnvironmentAccording to a new report from Cornerstone Research, the number of accounting and auditing enforcement actions the SEC initiated in 2019 was down slightly from the number initiated in 2018, but the number remained near the 2014-2018 average. Monetary settlements of accounting and auditing enforcement actions during 2019 totaled approximately $626 million.  The June 25, 2020 report, which also summarizes accounting and auditing enforcement activity initiated by the PCAOB, is entitled “Accounting and Auditing Enforcement Activity – 2019 Review and Analysis” and can be found here. Cornerstone Research’s June 25, 2020 press release about the report can be found here. Continue Reading SEC Accounting and Auditing Enforcement Actions Down Slightly in 2019As readers know, since the beginning the coronavirus outbreak in the U.S., I have been tracking the coronavirus-related D O lawsuits as they are filed. As the lawsuits have started to accumulate, one challenge has been keeping a firm grasp on what it is that makes a lawsuit coronavirus-related. In the following post, I discuss two recently filed securities class action lawsuits that after some deliberation I have decided to include on the list of coronavirus-related securities suits. Though I have included them on the list, I will be the first to acknowledge that that the inclusion of these lawsuits, particularly the second of the two discussed below, is not beyond question. My hope is that by going through my logic for including the two lawsuits and my reasoning for including them on the list that readers will weigh in and share their thoughts about whether either or both of these lawsuits properly should be classified as coronavirus-related. I describe the two recently-filed lawsuits below, along with a description  of my reasons for including them on the list. Continue Reading Do These Two New Lawsuits Belong on the List of COVID-19-Related Securities Suits? David TopolIn its June 2017 decision in Kokesh v. SEC (discussed here), the U.S. Supreme Court held that disgorgement in an SEC enforcement action represents a “penalty,” and therefore a SEC enforcement action claim for disgorgement is subject to a five-year statute of limitation. The Court emphasized that it was only deciding the statute of limitations issue, and was emphatically not reaching the larger issue of whether the SEC has the proper authority to order disgorgement in enforcement proceeding. As discussed here, last November, in the case of Liu v. SEC, the U.S. Supreme Court agreed to take up the  larger issue to determine whether or not the SEC may seek may seek and obtain disgorgement as “equitable relief” for a securities law violation. On June 22, 2020, the Supreme Court issues its opinion in the Liu case. As discussed below in a guest post written by David Topol of the Wiley law firm, the court has ruled that the SEC may collect disgorgements as “equitable relief,” subject to important constraint. I would like to thank David for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is David’s article. Continue Reading Guest Post: Liu v. SEC: What Is “Disgorgement”?Many traditional liability insurance policies contain provisions specifying that in the event of a claim the insurer has the duty to defend the insured. However, many management liability insurance policies do not impose a duty on the insurer to defend the insured; rather, these policies usually provide that insureds will defend themselves, with the obligation on the insurer to advance defense costs as they are incurred, subject to all of the policy’s terms and conditions. However, because defense obligations under the more traditional duty to defend arrangement are well established and more familiar to many courts, courts sometimes attempt to resolve issues arising under duty to advance policies by referring to principles established with regard to duty to defend policies.In a recent decision, the Ninth Circuit declined to apply duty to defend principles to interpret a D O insurer’s duty to advance, holding that the insurer’s duty to advance extended only to actually covered claim and not to potentially covered claims as would be the case under a duty to defend policy. The appellate court also affirmed the district court’s rulings with respect to the applicability of the policy’s wage and hour claims exclusion; the policy’s definition of “loss,” precluding coverage for amounts deemed “penalties” in the applicable statute; and the insured vs. insured exclusion. A copy of Ninth Circuit’s June 17, 2020 opinion can be found here. Continue Reading D O Insurer’s Duty to Advance Defense Costs Applies to Covered Claims, Not Potentially Covered ClaimsA plaintiff shareholder has filed a securities class action lawsuit against a diagnostic testing company alleging that the company misrepresented the accuracy of its COVID-19 antibody test. The company’s share price, which had risen on the news of the FDA’s authorization of the company’s test, declined after the FDA announced it was revoking the authorization due to performance concerns with the accuracy of the test. As detailed further below, this new lawsuit is the latest in a series of securities suits that have been filed since the coronavirus outbreak began against companies that are alleged to have made misrepresentations concerning their ability to provide coronavirus-related therapies, testing, or equipment. Continue Reading Investor Files COVID-19 Related Securities Suit Against Testing CompanyKevin M. LaCroix is an attorney and Executive Vice President, RT ProExec, a division of R-T Specialty, LLC. RT ProExec is an insurance intermediary focused exclusively on management liability issues Read More Nuts And Bolts of D O InsuranceThis multipart series explores the basics of directors and officers liability insurance. The index for this series can be Found Here The views expressed on this site are exclusively those of the author, and all of the content on this site has been created solely in the author s individual capacity. This site is not affiliated with his company, his colleagues, his clients, his relatives or any other institution or person living, dead, or yet to exist. Quotations from this site should credit The D O Diary. However, this site may not be quoted in any legal brief or any other document to be filed with any Court unless the author has given his written consent in advance. This blog does not intend to provide legal advice. You should consult your own attorney in connection with matters affecting your own legal interests.

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The D&O Diary is written by attorney and Executive Vice President of RT ProExec, Kevin M. LaCroix, and offers insights and commentary from the world of directors & officers liability.

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