D&O Liability

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The Supreme Court may hear arguments this fall regarding whether former plan beneficiaries can bring ERISA claims against the plan’s investment adviser without pre-suit demands, and whether those same parties can bring claims under Sections 47(b) of the Investment Company Act. …
Read More Supreme Court Petitioned to Hear Appeal of 401(k) Fee Suit Involving Insurers’ ERISA Plans

The U.S. District Court for the Southern District of New York recently dismissed most of the claims in the long-running litigation over transfer agent fees collected on the Smith Barney family of funds.  See In re Smith Barney Transfer Agent Litig., No. 05 Civ. 7583 (WHP) (decision available here). …
Read More Transfer Agent Fee Litigation Saga (Almost) Comes to an End

The New York Supreme Court, Appellate Division, First Department, issued a ruling this past week in which it adopted a “clear approach” for determining the difference between direct and derivative claims.  The decision clarifies heretofore murky New York law on the topic.  A copy of the slip opinion, Yudell v. Gilbert, 2012 N.Y. Slip Op. 05896 (N.Y. App. Div. 1st Dep’t Aug. 7, 2012), is available here. …
Read More New York Adopts Delaware’s “Tooley Test” for Distinguishing Between Derivative and Direct Actions

The Second Circuit recently held that, even if a stock recovers its value after dropping following a corrective disclosure, this does not necessarily negate a showing of loss causation at the pleading stage in a claim for securities fraud.  See Acticon AG, et al. v. China North East Petroleum Holdings Ltd., et al., No. 11-4544-cv (2nd Cir., August 1, 2012).  A copy of the decision is available here. …
Read More Second Circuit Holds That Post-Disclosure Recovery of Stock Price Does Not Negate Loss Causation

The third panel on Day 2 of the PLUS D&O Symposium discussed foreign exposures for U.S. companies. They noted that this encompasses two broad categories: claims brought in the U.S. relating to activities abroad, and claims actually brought abroad against U.S. companies. …
Read More PLUS D&O Symposium 2012 – Day 2 Third Panel: Foreign Exposures

The 2012 PLUS D&O Symposium continued with a panel that focused on D&O claims activity in the private company and non-profit space.  Traditionally, these sectors of the market have comprised the vast majority of the D&O universe, and the types of claims that tend to arise under these polices have not significantly changed for a generation. …
Read More PLUS D&O Symposium 2012 – Day 2 Second Panel: Private Company & Non-Profit D&O Claims Activity

The second day of the PLUS D&O Symposium began with a discussion of recent developments in D&O coverage.  The first big topic was coverage for investigation costs for entities only.  Insurers had already been offering entity coverage for formal investigations where an individual insured was also a target. …
Read More PLUS D&O Symposium 2012 – Day 2 First Panel: Developments in D&O Coverage

The fourth and final panel of the 2012 PLUS D&O symposium’s first day focused its discussion on the current claim cycle, and where the industry finds itself.  The panel’s discussion was driven largely by questions from the moderator and the audience. …
Read More PLUS D&O Symposium 2012 – Day 1 Fourth Panel: Where In The Cycle Are We?