U.K. Court Halts Effort to Use New Opt-Out Class Action Procedures

By | The D&O Diary | July 23, 2017
The highest-profile attempt to utilize the new U.K. regime for consumer class actions has come to a grinding halt. The case involved a claim alleging that MasterCard’s fee structure had resulted in overcharges to tens of millions of U.K. consumers. On July 21, 2017, the Competition Appeal Tribunal, newly re-organized to oversee the consumer class action regime, declined to grant the necessary collective proceedings order that would have allowed the action to go forward. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus

D&O Insurance: Securing Coverage for Books and Records Requests

By | The D&O Diary | July 20, 2017
The right of shareholders to demand inspection of companies’ books and records is of course nothing new. What is new is the increased frequency of books and records demands, often as a result of courts’ requirement for prospective shareholder claimants to investigate alleged misconduct of corporate executives before filing a lawsuit. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus

Up Next: Mandatory Securities Claim Arbitration Provisions?

By | The D&O Diary | July 19, 2017
For a while a few years ago, litigation reform bylaws were all the rage – including forum selection bylaws, fee shifting bylaws, even mandatory arbitration bylaws. More recently, discussion of the topic quieted down, in part because the Delaware legislature enacted legislation allowing Delaware corporations to adopt forum selection bylaws while also prohibiting fee-shifting bylaws. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus

Guest Post: Ransomware Payment: Legality, Logistics, Mitigation, and Insurance

By | The D&O Diary | July 12, 2017
Readers undoubtedly are aware of the recent outbreak of ransomware incidents and the problems they present. The threat of ransomware attacks poses a host of issues, among the most significant of which is whether or not ransomware victims should go ahead and make the demanded ransomware payment as the quickest way to try to recover captured systems. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus

Professional Services Exclusion Precludes Coverage for All Insureds, Not Just Those Performing Services

By | The D&O Diary | July 10, 2017
If a D&O insurance policy exclusion precludes coverage for loss arising out of the performance of professional services, does the exclusion preclude coverage for all insureds or just the insureds who performed the services? In a July 5, 2017 opinion (here), the Eleventh Circuit, applying Florida law in a case related to the Rothstein law firm Ponzi scheme scandal, held that a bank’s D&O insurance policy’s professional services exclusion’s preclusive effect applied jointly and therefore precluded coverage for all insureds, not just for the individuals delivering the services. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus

Purported Notice of Potential Claim Held Insufficient to Provide Notice of Actual Claim

By | The D&O Diary | July 5, 2017
In an interesting June 23, 2017 opinion in a case raising a host of claims made date, notice of potential claims, and notice of claims issues, Western District of Tennessee Judge Sheryl Lipman, applying Tennessee law, held that a purported notice to insurers of a potential claim was insufficient to provide notice of an actual claim, therefore concluding that the defendant insurers did not have to reimburse the policyholder for its $212.5 million FHA loan violation settlement with the DOJ. View Full Post
Tweet Like LinkedIn LinkedIn Google Plus