New Judicial Appointments Could Help Curb Shareholder Suits, Reduce D&O Losses

Directors and officers (D&O) insurance has faced major losses in recent years, due in part, to what some call a significant increase in shareholder securities class action lawsuits. But a slew of new judicial appointments through the Republican-led Congress could help reverse this, speculates a securities litigator and white-collar criminal attorney.

“The judiciary is changing,” said Jorden Eth, co-chair of Morrison & Foster LLP’s Securities Litigation, Enforcement and White-Collar Criminal Defense Group. “A lot of judicial appointments are coming [and those] judges are going to rule in all of these cases.”

Eth spoke on a panel at the PLUS conference in Atlanta and explained that these judges, are likely “not going to be pro-plaintiff judges in general,” and that they could impact longer-term D&O lawsuit trends.

Darrin Robbins, a founding partner of Robbins Geller Rudman & Dowd LLP, a firm that handles securities class actions for shareholders, disagreed with the assessment. “We have a president [President Donald Trump] who believes himself a populist,” and argued that as a result, “some court appointments won’t necessarily reflect pro-corporate interests.”

The panel discussion focused on why there has been an explosion in D&O security class action lawsuits, and panelists offered a variety of perspectives.

Jeremy Lieberman, managing partner with Pomerantz LLP, has represented shareholders in a number of these kinds of lawsuits. He said that in the wake of a series of shareholder suits relating to the financial crisis of 2007 to 2008 being settled, plaintiffs have increasingly broadened their perspective on what fraud actually is.

That broadened legal argument now encompasses “anything that could impact stock prices, something that the company has a duty to disclose,” Lieberman said. He added that his firm has looked more expansively at what defines securities fraud than in “a lot of traditional cases.”

In other words, there is an expanding view of what is material in terms of fraud lawsuits, Lieberman added.

Robbins said that he has seen securities fraud lawsuits rise much less than some have argued. He said there has been a modest uptick, but asserted that perceptions of a huge rise have been “driven by a mass focus on securities claims by large institutional investors.”

Lieberman said he expects any increases in D&O shareholder securities class action suits to taper off, as he said that the types of cases in this category ebb and flow over time.

One thing that could help, according to Robbins, is dialogue, negotiating for settlements sooner rather than later.

Some D&O shareholder lawsuits have moderated within specific categories. Kristen Kraeger, managing director at Aon, explained that she has seen a correction regarding shareholder suits relating to mergers and acquisitions (M&A) cases.

As M&A activity has moderated, “the insurance market has corrected with respect to those M&A cases,” Kraeger said.

She added that lawsuits in the M&A space increased, in large part, due to the “sheer numbers” of M&A transactions.

“From my perspective and brokerage perspective it is a matter of risk differentiation, really getting into the type of case that is being brought,” Kraeger said.