Defense Counsel

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“Securities litigation” isn’t really “litigation” anymore.  For the first 15 years of my career, securities class actions that were not dismissed would head into litigation, where we would test class certification, map out our summary judgment motion, and engage in fact discovery designed to establish the facts we needed to prevail on the merits.  A…

I started the D&O Discourse blog in October 2012 to generate discussion among the repeat players in securities and corporate governance litigation:  insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel.  While I share opinions from a defense-counsel perspective, I call it like I see it.  

Here are five of my favorite posts – well…

The Reform Act was passed by the Contract-with-America Congress to address its perception that securities class actions were reflexive, lawyer-driven litigation that often asserted weak claims based on little more than a stock drop, and relied on post-litigation discovery, rather than pre-litigation investigation, to sort the validity of the claims.  

The Reform Act’s centerpiece is…

I am evangelical about the importance of defense counsel working collegially with D&O insurers and brokers – the repeat players in securities and governance litigation – in the defense of litigation against our common clients.  In the big picture, this type of collegiality is the key to putting “litigation” back in “securities litigation” and to…

In 2012, I started the D&O Discourse blog to have a discussion among the repeat players in securities and corporate governance litigation:  insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel.  I share opinions from the defense-counsel perspective, but I call it like I see it.  For example, in a post in anticipation of the…

It was a great honor to moderate a Professional Liability Underwriting Society D&O Symposium panel on the ability of Contingent Liability (CL) insurance to improve outcomes in securities class actions (SCA).

Randy Hein, President of Berkley Transactional (Berkley Professional Liability), pioneer of CL for SCAs; Kara Altenbaumer-Price, executive risk broker at…

The chance to help Washington Legal Foundation with a U.S. Supreme Court amicus brief in the Omnicare case was an honor.  Statements of opinion are ubiquitous in corporate communications on issues as diverse as asset valuations, strength of current performance, risk assessments, product quality, loss reserves, and progress toward corporate goals.  Many of these opinions…

In Salzberg, et al. v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020) (“Blue Apron”), the Delaware Supreme Court upheld the facial validity of federal-forum provisions (FFPs) in a Delaware corporation’s certificate of incorporation requiring actions arising under the Securities Act of 1933 to be filed exclusively in federal court. Here is Kevin LaCroix’s…

Last month, D&O insurance lawyer John McCarrick and D&O insurance executive Paul Schiavone published a guest post on Kevin LaCroix’s blog, The D&O Diary, titled “Is it Time to Revisit the Scope of D&O Coverage?” John and Kevin’s post has triggered response posts from four policyholder advocates: Kevin of RT ProExec (response…

D&O Discourse is a forum for discussion of key issues in securities and governance litigation, to help improve litigation outcomes for public companies and their directors and officers, and D&O insurers and brokers, in specific cases and overall.

This post discusses a fundamental, structural, and deepening problem with securities class action defense: the lack of…