Are New York Courts Keeping the World Safe for Nuisance Value Merger Objection Lawsuits?

By | The D&O Diary | March 20, 2017
new yorkIn a series of decision culminating in Chancellor Bouchard’s January 2016 ruling in the Trulia case (about which refer here), Delaware’s courts have shown their hostility to disclosure-only settlements in merger objection lawsuits. These Delaware developments led some observers to speculate that we might have seen the end of the litigation trend in which nearly every M&A transaction attracted at least one merger objection lawsuit. View Full Post
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D&O Insurance: Prior and Pending Litigation Exclusion Doesn’t Preclude Coverage, Late Notice Does

By | The D&O Diary | March 19, 2017
connecticutA recent summary judgment ruling in a D&O insurance coverage lawsuit in the District of Connecticut addressed several potentially preclusive coverage issues. In her February 28, 2017 opinion (here), Judge Vanessa Bryant, applying Connecticut law, ultimately held that coverage for the underlying claim was precluded due to the insured’s late provision of notice of claim, a conclusion that under the facts presented arguably is unremarkable. View Full Post
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Biotech Companies Sued Frequently but Do They Really Represent a Heightened Risk Class?

By | The D&O Diary | March 16, 2017
test tubesAs has been documented on this blog and elsewhere, life sciences companies in general, and developmental stage biotechnology companies in particular, are frequent securities class action litigation targets. But does that really justify the perception of early stage biotech companies as representing a heightened securities litigation risk class for D&O insurers? View Full Post
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Cornerstone Research: Securities Class Action Settlement Values Increased in 2016

By | The D&O Diary | March 15, 2017
cornerstoneThe number of securities class action settlements as well as the aggregate, average, and median securities class action settlement values all increased in 2016 compared to the prior year, according to the latest annual report from Cornerstone Research. The report, entitled “Securities Class Action Settlements: 2016 Review and Analysis can be found here. View Full Post
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D&O Insurance: Convictions, Appeals, and the Conduct Exclusion

By | The D&O Diary | March 14, 2017
californiaMost D&O insurance policies have conduct exclusions precluding coverage for fraudulent, criminal, or willful misconduct. However, mere allegations are insufficient to trigger this exclusion. If allegations alone were enough, then many claims that would otherwise be covered under the policy would be precluded from coverage, because many D&O claims involve allegations of fraudulent, criminal, or willful misconduct. View Full Post
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The Liability Exposures of Directors and Officers of Pre-IPO Companies

By | The D&O Diary | March 12, 2017
deliveryagentWhen private companies are on track toward a planned IPO, much of the focus and attention is on readying the company for the burdens and responsibilities it will face as a public company. Among other things, this also means a focus on the potential liability exposures for the company and its directors and offices once the company goes public. View Full Post
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Fifth Circuit Rejects Hospital’s Argument That Defense Expense Does Not Erode the Limits of Liability

By | The D&O Diary | March 9, 2017
mississippiMost management liability insurance policies are written on a defense-costs-inside-the-limits basis, meaning that covered defense costs erode the limits of liability as the expenses are incurred. Though this is a well-established arrangement within the industry for this type of insurance, the erosion of limits by defense expenses sometimes comes as an unwelcome surprise to a policyholder, usually in the middle of a serious claim. View Full Post
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Book Review: Directors & Officers Liability Insurance Deskbook

By | The D&O Diary | March 8, 2017
deskbookThose of us involved in the world of D&O liability insurance are well aware that the coverage issues often are technical and the relevant legal principles can change quickly as a result of evolving case law. It would be valuable for  practitioners in this area to have access to a reliable resource where the key principles are described and where the key case law authority can quickly be located. View Full Post
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Guest Post: President Trump, Let’s Strengthen the SEC

By | The D&O Diary | March 7, 2017
Blair Nicholas David Kaplan Among the many concerns in the early days of the new Presidency is the question of what we can expect from the SEC in the new administration. In the following guest post, Blair Nicholas and David Kaplan of the Bernstein Litowitz Berger & Grossman law firm advocate that the SEC take an aggressive approach to securities enforcement, and they have a specific proposal to advance that approach. View Full Post
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