D&O Liability

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On July 27, 2007, the Securities and Exchange Commission posted two separate proposing releases that relate to shareholder access to a public company’s proxy ballot in connection with director elections.  The unusual aspect of these releases is that they represent alternative and very different approaches to the same issue. 

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By Order dated July 16, 2007, Judge Kaplan confirmed his previous holding, in connection with KPMG tax shelter litigation, that the government’s interference with KPMG’s payment of the legal fees of its employees and former employees (under the now-superseded Thompson Memo) violated the employee’s constitutional rights. 

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As previously discussed here, on July 2, 2007, Judge Lewis Kaplan of the S.D.N.Y. requested, to assist in his decision on defendants’ motions to dismiss, that the federal prosecutors in the KPMG tax shelter case estimate the reasonable costs of a defense for the KPMG partners.  The U.S. Attorney’s office recently responded. 

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With Judge Breyer having postponed ruling on his motion to dismiss until at least July 19, ex-Brocade CEO Greg Reyes’ defense has gone forward this week.  Among the defense’s witnesses this week were two of Brocade’s founders, Seth Neiman and Paul Bonderson, and Jason Gold, formerly a fund manager at one of Brocade’s top investors. 

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