Insurers’ Antitrust Exemption in Crosshairs Again as Part of Potential Health Care Overhaul

Just when you thought the health insurance legal and regulatory landscape couldn’t get any more interesting, along comes the Competitive Health Insurance Reform Act of 2017 (the Act). The Act removes a longstanding antitrust exemption and places health insurers back under federal antitrust scrutiny. The House recently passed the Act overwhelmingly (416 – 7), and the Senate’s Judiciary Committee is now weighing it.

The Act amends the 1945 McCarran-Ferguson Act, which provides that federal antitrust laws, such as the Sherman Act and Clayton Act, do not apply to the “business of insurance.” McCarran-Ferguson allows states to regulate insurance, as state regulation of insurance was commonplace for much of American history. In 1944, however, the Supreme Court decided United States v. South-Eastern Underwriters Association, 322 U.S. 533 (1944), in which it determined that insurance was “commerce among the states,” making it subject to the Sherman Act. In response, Congress passed the McCarran-Ferguson Act, which was designed to legislatively repeal South-Eastern Underwriters and restore state prominence in insurance regulation.

Despite the history of state regulation of insurance, and the prompt nature of the McCarran-Ferguson Act’s passage after the Supreme Court’s decision in South-Eastern Underwriters, the insurance exemption from federal antitrust laws has been widely criticized.  Democrats have long supported a full repeal of McCarran-Ferguson with respect to all insurance, including health insurance. For instance, in the aftermath of Hurricane Katrina, perceived abuses by insurers led to calls by lawmakers to repeal the antitrust exemption. More recently, in 2010, a similar bill to repeal the exemption specific to health insurers stalled in the Senate after passing easily in the House.

The much-publicized focus on health insurance in recent years has again caused a reconsideration of the insurance antitrust exemption. The proposed Competitive Health Insurance Reform Act would prohibit price fixing, bid rigging and market allocation, which – according to the Act’s proponents – would unlock greater competition in the health insurance marketplace. This time, there is reason to believe that attempts to repeal the antitrust exemption may be different than prior unsuccessful attempts. While Democrats have long favored repeal, Republicans are also now behind the effort. The GOP sees repeal as part of the broader health insurance overhaul and hopes the potential increases in competition will lead to lower prices, increased choice and greater innovation in the health insurance industry. The White House also supports the Act, as Trump Administration advisers have stated they would recommend signing the Act into law if presented in its current form.

Keep your eye on this issue, as it may slip through the cracks in the news due to the flurry of activity related to health insurance and the Trump Administration, generally. If passed, health insurers would require additional compliance focus, as antitrust issues involving price fixing, bid rigging and market allocation have been outside health insurers’ wheelhouse for some time.

Trump Administration Continues to Indicate Tide Change Away from Support of the CFPB

As previously reported on this blog[1], President Trump’s issuance of an Executive Order and the subsequent introduction of bills seeking to eliminate the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) signaled a dramatic shift from the Obama Administration’s support of the CFPB, which was expected to continue under Clinton.

Further evidence of this new administration’s shift came on March 3, when the Trump Administration asked for permission to file an amicus brief in the case pending before the D.C. Circuit, which may have a significant impact on the current structure of the CFPB. It will also decide whether Director Richard Cordray will remain at the helm through the remainder of his term, which is set to expire in July 2018. The case, PHH Corporation, et al v. CFPB, involves a mortgage servicer, PHH Corporation, and seeks to overturn a $109 million judgment entered against it by the CFPB.[2] Notably, this increased judgment was imposed by CFPB Director Cordray on appeal, upon review of an administrative law judge’s smaller penalty. In October 2016, a divided D.C. Circuit panel ruled in favor of PHH Corporation and gave the president authority to terminate the CFPB director at will, rather than for cause, as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). The D.C. Circuit subsequently granted the CFPB’s petition for hearing en banc and vacated the panel’s decision. While the Obama Administration supported the CFPB’s petition for rehearing, many questioned whether the amicus brief filed by the Department of Justice under the Trump Administration would change course and question the CFPB’s current structure.

The brief, which was filed on March 17, 2017, states that review by the full D.C. Circuit is warranted because of the panel’s flawed analysis of the constitutionality of the CFPB’s current structure. The brief argues that the structure of the CFPB violates the U.S. Constitution’s separation of powers, not because of its impact on individual liberty, as stated by the panel, but rather because it impedes the president’s executive power. The Department of Justice did, however, agree with the panel’s conclusion that the remedy for the constitutional violation was to sever the provision limiting the president’s authority to remove the CFPB Director, rather than declare the Bureau unconstitutional. The en banc hearing is scheduled for May 24, 2017.

While the Trump Administration’s amicus brief, which questions the constitutionality of the current structure, demonstrates a shift from the prior administration’s support for the Bureau, the CFPB has the support of many state attorneys general. On January 23, 2017, 16 state attorneys general filed a motion to intervene in the Bureau’s petition for rehearing en banc. While the motion to intervene was denied, foreclosing the opportunity for the attorneys general to appeal an adverse decision by the D.C. Circuit, the attorneys general may, nonetheless, have powerful enforcement tools at their disposal. Under Dodd-Frank, state attorneys general have authority to bring civil actions to enforce Dodd-Frank’s regulations against entities within their jurisdiction.[3] While timely notice to the Bureau is required prior to filing a civil action to provide the Bureau with the opportunity to intervene in the action, the Act does not appear to permit the Bureau to veto an action brought by a state attorney general thereby creating a potential “work around” in the event of a scaled-back CFPB under the Trump Administration.[4]

[1] http://www.c-suiteriskreport.com/2017/03/under-trump-administration-dodd-frank-and-the-cfpb-continue-to-face-challenges/
[2] Case No. 15-1177 (D.C. Cir. 2016).
[3] 12 U.S.C. § 5552.
[4] Melanie Brody, Stephanie C. Robinson, and Francis L. Doorley, “Consumer Financial Services Cos., Prepare for a New Dynamic,” Law360.com Mar. 6, 2017). Avail. at: https://www.law360.com/articles/892620/consumer-financial-services-cos-prepare-for-new-dynamic

Rolls-Royce Plc Motors Away from Prosecution by Paying Authorities £671m in Connection with Bribery and Corruption Offences

After a four year investigation by the UK’s Serious Fraud Office (“SFO”) into car and engine manufacturer Rolls-Royce, a UK Court approved a Deferred Prosecution Agreement (“DPA”) in January 2017.[1]  The investigation focused on bribes Rolls-Royce paid to secure valuable export contracts in various markets, including China, Brazil and Indonesia.  Although the DPA allows Rolls-Royce to avoid prosecution, the company will have to pay £671 million (approximately US $800 million) to UK, US and Brazilian authorities in order to settle its bribery and corruption offences.

After the DPA was approved, SFO director David Green explained, “I think it shows very clearly that the SFO has teeth and that the SFO will not go away.”

This is only the third DPA approved by a UK Court and is by far the largest. Before approving the agreement, the Court was required to address two issues: (1) whether the DPA was in the interest of justice; and (2) were its terms fair, reasonable and proportionate?  The Court’s positive determination of both issues will be the source of much analysis by contentious regulatory lawyers.  However the case should be of interest to the D&O insurance community, as well.   For Rolls-Royce, further investigations into individuals in connection with the case continue.  In this regard the judge noted the involvement of “senior management and, on the face of it, controlling minds of the company.”

As a result of the Rolls-Royce investigation, some points for insurers to consider include:

  1. It is settled law in England & Wales that fines and penalties are not insurable losses. However, DPAs do not prevent ancillary or subsequent investigations into individuals (indeed they may trigger them), and so Insured Persons will, in these circumstances, expect their company’s D&O policy to respond to any Defence/Investigation costs they incur as a result of the investigation.
  2. SFO investigations and DPAs can also be the trigger for parallel or subsequent civil action against individuals. Here, damages/settlement sums, as well as the costs of defending the cases could trigger D&O insurance cover (subject to relevant policy terms, conditions and exclusions).
  3. The Rolls-Royce DPA and preceding investigation shows the SFO has the appetite, but more critically, the funding to maintain large scale investigations. The SFO’s track record of high-value/high-profile investigation has been ‘mixed’ ( its troubled and later aborted action against high-profile entrepreneurs, the Tchenguiz brothers being an obvious low point), which has led some UK commentators to question if its willingness to take on expensive and highly publicized cases might wane.  After the Rolls-Royce decision, however, its director sent a positive message that such was definitely not the case.  For insurers this could signal a desire by authorities to hold more, and more high-profile individuals, as well as companies, to account.  We might reasonably expect more DPAs, and therefore, an increase in related D&O claims activity to follow.  In anticipation of this development, insurers might want to review policy wordings to consider, for example, Investigation Costs sub-limit and excess provisions, exclusions for fraud or deliberate misconduct, and whether the cost of internal investigations before SFO involvement (perhaps more prevalent in the financial sector since the introduction of new UK whistleblowing rules in 2016) would also be covered.

[1] Visit https://www.sfo.gov.uk/cases/rolls-royce-plc/ for a copy of the Deferred Prosecution Agreement, the Deferred Prosecution Agreement – Statement of Facts, and the U.K. Court’s decision approving the Deferred Prosecution Agreement in this case.

Under Trump Administration, Dodd-Frank and the CFPB Continue to Face Challenges

The Dodd-Frank Wall Street Reform and Consumer Protection Act, or Dodd-Frank, was enacted in 2010 in response to the financial crisis. Through Dodd-Frank, the Consumer Financial Protection Bureau (the CFPB) was created. The CFPB has the authority to pursue actions against financial institutions for unfair or deceptive practices. For instance, it was the CFPB that brought an action against Wells Fargo for opening accounts without their clients’ consent, which resulted in a $100 million fine against Wells Fargo.[1]  The CFPB contends that it has obtained $11.7 billion in relief to consumers from its enforcement actions.

Despite protecting consumers, Dodd-Frank and the CFPB are not without their critics, and continue to face challenges from the different branches of government. On February 3, 2017, President Trump commented: “we expect to be cutting a lot out of Dodd-Frank.”[2] That same day, he issued an Executive Order, only a page and a half long in length, which provides that his administration will regulate the U.S. financial system consistent with certain principles of regulation, known as the “Core Principles.”[3]  These Core Principles reportedly include: empowering Americans to make independent financial decisions; fostering economic growth and vibrant financial markets through more rigorous regulatory impact analysis; making regulation efficient, effective, and appropriately tailored; and rationalizing the federal financial regulatory framework.  The Executive Order also mandates that, within 120 days of the Order (or by June 3, 2017), the Secretary of the Treasury must consult with the heads of the member agencies of the Financial Stability Oversight Council and report back to the President. The report must advise how existing laws promote the Core Principles, what actions currently are being taken in support of them, and identify what laws inhibit them. A few weeks after the Executive Order was issued, on February 14, 2017, bills were introduced in the House (H.R. 1031) and Senate (S. 370) to eliminate the CFPB.

The CFPB’s structure is also under review by the courts. Last year, a federal appellate court found that the CFPB was unconstitutionally structured because, as an independent agency headed by a single director, it departs from “settled historical practice”.[4]  Specifically, independent agencies historically have been headed by multiple commissioners, directors, or board members. This multi-member structure provides a critical check on one’s power, which reduces the risk of arbitrary decision-making and helps protect individual liberty. The federal appellate court found that the CFPB is headed by a single director who has more unilateral authority than any other officer in the three branches of government, other than the President. Furthermore, the CFPB director is only removable for cause. In fact, not even the President can remove the CFPB director under the applicable statute. As such, the federal appellate court held that the CFPB was unconstitutionally structured, and remedied this violation by severing the for-cause removal provision in the statute. The court also determined that the CFPB should operate as an executive agency (as opposed to an independent agency), which would permit the President to supervise, direct, and remove the CFPB director at any time. However, on February 16, 2017, this ruling was vacated when the appellate court granted CFPB’s petition for a rehearing en banc. Oral argument for the rehearing en banc is set for May 24, 2017.

The recent challenges to Dodd-Frank and the CFPB have been the subject of recent media attention and public scrutiny, raising questions about the future of the Act and agency. One thing seems certain, though, Dodd-Frank and the CFPB will not be completely eliminated, or even changed, without a fight. As one article aptly recognized: “[i]t has taken seven years to put in place the regulatory strictures imposed on Wall Street… They won’t be removed fast or easily.”[5]

[1] Laurence Arnold and Elizabeth Dexheimer, “Trump’s Shot to Defang Dodd-Frank Consumer Bureau: QuickTake Q&A,” Bloomberg.com (Feb. 16, 2017). Avail. at: https://www.bloomberg.com/news/articles/2017-02-17/trump-s-shot-to-defang-dodd-frank-consumer-bureau-quicktake-q-a
[2] Remarks by President Trump in Strategy and Policy Forum. The White House, Office of the Press Secretary. (Feb. 3, 2017). Avail. at: https://www.whitehouse.gov/the-press-office/2017/02/03/remarks-president-trump-strategy-and-policy-forum
[3]Presidential Executive Order on Core Principles for Regulating the United States Financial System. The White House, Office of the Press Secretary. (Feb. 3, 2017). Avail. at: https://www.whitehouse.gov/the-press-office/2017/02/03/presidential-executive-order-core-principles-regulating-united-states
[4] PHH Corporation, et al v. CFPB, Case No. 15-1177 (D.C. Cir. 2016).
[5] Robert Schmidt, Jesse Hamilton, and Elizabeth Dexheimer, “Dodd-Frank’s Tentacles Go Deep. They Won’t Be Cut Fast or Easily,” Bloomberg.com (Feb. 6, 2017). Avail. at: https://www.bloomberg.com/politics/articles/2017-02-06/dodd-frank-s-tentacles-go-deep-they-won-t-be-cut-fast-or-easily

Employers Beware: The Ninth Circuit Finds That Liability Waivers in Consumer Report Disclosures “Willfully” Violate the FCRA

On January 20, 2017, the Ninth Circuit Court of Appeals issued an opinion with far-reaching consequences for employers’ liability under the Fair Credit Reporting Act (15 U.S.C. § 1681b(b)(2)(A)), and which could impact insurance coverage for such liability. In Syed v. M-I, LLC, et al., 2017 WL 242559 (9th Cir. Jan. 20, 2017), the court held that a prospective employer willfully violates the Fair Credit Reporting Act (FCRA) when it procures a job applicant’s consumer report after including a liability waiver in the same document as the statutorily-mandated disclosure.

Plaintiff Syed applied for a job with M-I in 2011. As part of the application process, M-I provided Syed with a document labeled “Pre-employment Disclosure Release.” The Disclosure Release informed Syed that his credit history and other information could be collected and used as a basis for the employment decision, authorized M-I to procure Syed’s consumer report, and stipulated that by signing the document, Syed was waiving his rights to sue M-I for violation of the FCRA. Syed filed a class action lawsuit on behalf of himself and all others that had received the same disclosure document, arguing that M-I had violated the FCRA, which requires that the disclosures given to job applicants before obtaining their consumer reports consist “solely” of the disclosure. The United States District Court for the Eastern District of California dismissed the class action complaint, concluding that Syed had not sufficiently pled willful violation of the FCRA. Syed appealed.

In a matter of first impression, the Ninth Circuit reversed the district court’s dismissal, holding that M-I’s inclusion of a liability waiver in the same document as the disclosure willfully violated the FCRA as a matter of law. In reaching its holding, the court emphasized that the FCRA requires that the disclosures given to job applicants consist “solely” of the disclosure that the report may be obtained for employment purposes. Therefore, the court concluded that an employer’s inclusion of any terms in addition to that disclosure language, including a liability waiver, constitute a “willful” violation of the statute. The court explained that “solely” unambiguously means “alone”, “singly”, “entirely”, or “exclusively” such that M-I’s inclusion of a liability waiver on the same document was a plain violation of the express terms of the statute. The court further elaborated that the inclusion of a waiver “does not comport with the FCRA’s basic purpose…[and] [t]o the contrary, it would frustrate Congress’s goal of guarding a job applicant’s right to control the dissemination of sensitive personal information.”

The Syed case could have a significant impact, opening the door to claims under the FCRA, because employers routinely utilize consumer reports as part of their job application process. Under the statute, Plaintiffs are limited to their actual damages unless they can prove that the employer “willfully fail[ed] to comply” with the statute. In such instances, plaintiffs can recover statutory damages ranging from $100 to $1,000, punitive damages, attorney’s fees, and costs of suit. In light of these exposures, employers often look to their liability policies to pick up the defense costs and indemnity exposure associated with these claims.

The Ninth Circuit’s holding that the employer willfully violated the FCRA is likely to create coverage defenses to these claims, as many states have public policy limitations prohibiting insurance coverage for an insured’s willful acts. In California, the limitation is further codified by statute in Insurance Code Section 533, which expressly provides that “[a]n insurer is not liable for a loss caused by the willful act of the insured.”  Thus, in situations like Syed, where employers have not followed the express requirement of the statute to have disclosures in a standalone document, they will now be facing increased exposure for claims arising under the FCRA without the assured safeguard of insurance coverage to help pick up the tab.

The Syed case is an important reminder for employers to take a fresh look at their application forms, and specifically, their consumer report disclosures under the FCRA to ensure they comport with the express requirements of the statute and, as appropriate, to seek the advice of counsel. Otherwise, employers may face much more than they bargained for with their liability waivers. Rather than escaping liability under the FCRA, they may face exposure for additional remedies resulting from the willful violation of the statute and risk the loss of insurance coverage as a consequence.

Investors Contend “Smoking Gun” Evidence is the Silver Bullet Against Financial Institution Defendants in Silver Rigging Case

The plaintiffs in a multidistrict silver rigging case pending in New York, In re: London Silver Fixing Ltd. Antitrust Litigation (S.D.N.Y., Case No.: 1:14-md-02573), have sought to amend their complaint based on newly acquired “smoking gun” evidence concerning an alleged conspiracy by certain financial institutions to rig the price of silver and silver related financial instruments. With this new “smoking gun” evidence, plaintiffs contend that they are now able to cure certain pleading deficiencies previously identified against UBS, one of the named bank defendants. Plaintiffs further contend that there is evidence of collusive price manipulation against the proposed new defendants: Barclays Bank PLC; Barclays Capital Inc.; Barclays Capital Services Ltd.; BNP Paribas Fortis S.A./N.V.; Standard Chartered Bank; Bank of America Corporation; Bank of America, N.A.; and Merrill Lynch, Pierce, Fenner & Smith Inc. The new evidence includes electronic chats from various traders, which purportedly demonstrate attempts to manipulate the silver market by coordinating trades in advance and “spoofing,” among other things.

According to public reports, the “smoking gun” evidence came “[e]ight months after Deutsche Bank AG settled a lawsuit claiming it manipulated gold and silver prices.”[1] In plaintiffs’ memorandum in support of their motion to amend, they explain that the materials they received from Deutsche Bank as part of their proposed settlement provided them with evidence that “far surpasses” the conspiracy they previously alleged. Plaintiffs also maintain that the defendants will suffer no prejudice by the amendment because, even though the case is a few years old, the parties have not taken depositions or produced documents, other than the Deutsche Bank materials.

UBS, who was dismissed from the case in October 2016, but may be brought back in if the motion to amend is granted, challenged plaintiffs’ assertions that they have cured their pleading defects. In UBS’s response brief, the bank argues that, even if plaintiffs’ allegations were true, they do not show that UBS had “control” over the silver fixing at noon London time (which is when the price of silver was set), or that they had “advance knowledge” of the fix price. UBS further contends that plaintiffs fail to connect the new evidence to actually executed transactions. In addition, and contrary to the plaintiffs’ position, UBS argues the new allegations would change the plaintiffs’ theory and the scope of the current action, which would unfairly prejudice the bank. UBS further maintains that the proposed complaint would not withstand a motion to dismiss.

Plaintiffs seek until December 22, 2016 to file their reply brief. Thereafter, the Court will determine whether the new evidence truly is the “smoking gun” that plaintiffs contend it to be. In any event, there appears to be a trend developing in these large cases brought against several financial institutions. Specifically, it is now common to see one bank settle with plaintiffs before all others, presumably at a discount, with the promise to aid plaintiffs in prosecuting their claims against the remaining bank defendants. We have seen the same strategy at play in the class action litigation brought against various banks arising out of the LIBOR manipulation. If the strategy is successful, we can expect to see it implemented in future actions, as well.

[1] David Glovin and Edvard Pettersson, “Deutsche Bank Records Said to Show Silver Rigging at Other Banks” Bloomberg, available at: https://www.bloomberg.com/news/articles/2016-12-08/deutsche-bank-records-alleged-to-show-banks-rigged-silver-prices (Dec. 7, 2016).

Strike Three – You’re Out – Data Breach Shareholder Derivative Lawsuit Against Home Depot Dismissed

On November 30, 2016, Judge Thomas W. Thrash dismissed a shareholder derivative action brought against Home Depot as a result of the breach of its security systems and theft of its customers’ personal financial data (“the Breach”) in 2014. In Re The Home Depot, Inc. Shareholder Derivative Litigation, Civ. No. 1:15-CV-2999, 2016 WL 6995676 (N.D. Ga. 2016). In the derivative action, Plaintiffs asserted that Home Depot was harmed as a result of the company’s alleged delay in responding to significant security threats, and thus sought to recover under three primary claims against Home Depot’s current and former directors and officers (“Ds&Os”). These included the following alleged claims: (1) breach of the duty of loyalty by failing to institute internal controls sufficient to oversee the risks in the event of a breach, and for disbanding a Board of Directors committee that was responsible for overseeing those risks; (2) waste of corporate assets; and (3) violation of Section 14(a) of the Securities Exchange Act in connection with Home Depot’s 2014 and 2015 proxy filings. According to Judge Thrash, all of the claims against the Ds&Os “ultimately” related to what they “knew before the Breach and what they did about that knowledge.” Defendants filed a motion to dismiss, which Judge Thrash ultimately granted applying Delaware law. It was undisputed that no demand was made on the Home Depot Board of Directors. Thus, Plaintiffs had the burden of demonstrating that the demand requirement was excused because it would have been futile.

Judge Thrash analyzed each of the three claims against the Ds&Os. As for the primary claim that the Directors allegedly breached their duty of loyalty and that they failed to provide oversight, Plaintiffs were required to show that the Directors either “knew they were not discharging their fiduciary obligations or that the Directors demonstrated a conscious disregard for their responsibilities[.]” When combined with the general demand futility standard, Plaintiffs essentially needed to show that a majority of the Board faced substantial liability because it consciously failed to act in the face of a known duty to act. Judge Thrash stated that this is “an incredibly high hurdle for the Plaintiffs to overcome[.]”

In finding that Plaintiffs’ failed to overcome this hurdle, Judge Thrash rejected Plaintiffs’ arguments about the significance of disbanding the Infrastructure Committee charged with oversight of the risks Home Depot faced in the event of a data breach. Plaintiffs alleged that the Board failed to amend the Audit Committee’s charter to reflect the new responsibilities for data security that had been transferred from the Infrastructure Committee, as required by the Company’s Corporate Governance Guidelines. As a result, Plaintiffs alleged that the Board failed to designate anyone with the responsibility to oversee data security, thereby leaving the company without a reporting system. Judge Thrash concluded that “[t]his argument is much too formal.” Regardless of whether the Audit Committee had “technical authority,” both the Committee and the Board believed it did. Given the factual allegations that the Audit Committee received regular reports from management on the state of Home Depot’s data security, and the fact that the Board in turn received briefings from both management and the Audit Committee, the court concluded that “there can be no question that the Board was fulfilling its duty of loyalty to ensure that a reasonable system of reporting existed.”

The court also rejected Plaintiffs’ argument that the Board’s failure “to ensure that a plan was in place to ‘immediately’ remedy the deficiency in [Home Depot’s data security],” supported the breach of the duty of loyalty claim. Plaintiffs acknowledged in the complaint that the Board acted before the Breach occurred, that it had approved a plan that would have fixed many of Home Depot’s security weaknesses, and that it would be fully implemented by February 2015. Under Delaware law, the court held that directors violate their duty of loyalty only if “they knowingly and completely failed to undertake their responsibilities.” Judge Thrash concluded that “as long as the Outside Directors pursued any course of action that was reasonable, they would not have violated their duty of loyalty.”

In addition, Plaintiffs alleged that there was “a plan,” but that “it moved too slowly.” The court held that this was not the standard under which to evaluate demand futility on a duty of loyalty claim. The court noted that with the benefit of hindsight, “one can safely say that the implementation of the plan was probably too slow, and that the plan probably would not have fixed all of the problems Home Depot had with its security.” However, the court also found that “simply alleging that a board incorrectly exercised its business judgment and made a ‘wrong’ decision in response to red flags…is not enough to plead bad faith.”

Based on the foregoing analysis of the demand futility issue, the court had little difficulty discounting the claim of corporate waste. Plaintiffs alleged that the Board’s insufficient reaction to the threats posed by alleged deficiencies in compliance with contractual requirements for data security caused significant losses to the company, which constituted a waste of Home Depot’s assets. Here, the court concluded that the Plaintiffs’ claim was basically a challenge to the Director’s exercise of their business judgment, and although with hindsight, it “was easy to see that the Board’s decision to upgrade Home Depot’s security at a leisurely pace was an unfortunate one,” the decision nevertheless fell squarely within the discretion of the Board and was protected under business judgment rule.

Finally, Plaintiffs’ Section 14(a) claims, which were also subject to a demand requirement, alleged that Defendants omitted important information from their 2014 and 2015 Proxy Statements by not disclosing that Home Depot had known of specific threats to its data security, and that the Audit Committee’s charter was not amended to reflect that the responsibility for IT and data security had been transferred to it. The court rejected these arguments, noting that regardless of whether the charter was amended, “everyone believed and acted as if the Committee did have oversight over data security during the relative time period.” Further, the court found that Plaintiffs failed to specifically identify which statements in the Proxy Statements were false or misleading and also failed to plead with particularity how the omission caused the alleged loss. Thus, the court held that the claim did not demonstrate the necessary duty to disclose required under Section 14 (a). Moreover, “because [Plaintiffs] had not demonstrated a substantial likelihood that the Defendants would have been liable for a Section 14(a) violation,” the court found that demand was neither futile for the Section 14(a) claims, nor excused.

This decision is in step with two other recent decisions dismissing shareholder derivative actions against companies arising out of high-profile data breaches. See Palkon v. Holmes, et.al. 2014 WL 5341880 (D.N.J. Oct. 20, 2014) (court, applying Delaware law, dismissed a derivative action against Wyndham Hotels brought after that company suffered a large data breach, relying in part on the protections afforded the Ds&Os under the business judgment rule); Davis et al. v. Steinhafel et al., No. 14-cv-203, (D. Minn. July 7, 2016) (court dismissed derivative action against Target because a claim could not be stated in connection with a corporation’s special litigation committee’s decision not to pursue derivative claims against the company’s officers or directors, particularly where it demonstrated that the decision was based on a thorough and impartial investigation).

With the prevalence of security breaches taking place against various corporations, including large retailers, Home Depot is yet another reminder of the potential exposure presented by cyber-liability for the boardroom, including costly litigation even if the corporation prevails. Judge Thrash’s opinion provides guidance on how the business judgment rule can protect Ds&Os for their decision-making with respect to the demands of cybersecurity. Given the numerous references to the “benefits of hindsight,” however, corporate boards should be vigilant in assessing their cybersecurity plans. There may come a time when a court will not so readily apply the “business judgment rule” to a Board’s decision making process in addressing cybersecurity concerns.

Every Rose Has Its Thorn: No D&O Coverage For Bad Loans To Flower Company, Fifth Circuit Says

In a recent decision, the Fifth Circuit ruled in favor of Markel American Insurance Company in a D&O liability coverage dispute centering on the application of the policy’s “Creditor Exclusion.” The panel affirmed a lower court’s holding that the exclusion precluded coverage for claims brought by lenders of the insured. Markel Am. Ins. Co. v. Verbeek, 2016 WL 5400412 (5th Cir. 2016) (Tex.). In doing so, the panel rejected arguments by the insured, which relied on changes in the lender’s position during the underlying litigation.

The underlying case involved a claim brought by a bank syndicate comprised of Regions Bank, Comerica Bank, Solutions Capital I, LP and MCG Capital Corporation (collectively, “the banks”) which issued a credit facility loan agreement to the insured, Color Star Growers of Colorado, Inc. (“Color Star”), a flower distributor. Color Star soon went bankrupt and defaulted on its obligations under the credit facility loan. The banks filed suit against Color Star’s officers, Huibert and Engelbrecht Verbeek, in Texas state court alleging that the Verbeeks fraudulently induced the banks to issue the loans by misrepresenting the financial condition of their company. In particular, the banks claimed that the Verbeeks had overstated the value of their inventory by approximately $6.6 million. According to the banks, the Verbeeks were looking at their bottom line through rose-colored glasses.

The Verbeeks tendered the lawsuit to Markel and requested a defense under their D&O policy. Markel denied coverage for the suit, citing the policy’s “Creditor Exclusion.” That exclusion pertinently stated that the D&O policy did not cover “any Claim brought or maintained by or on behalf of . . . [a]ny creditor of [the insured company] in the creditor’s capacity as such[.]” Markel filed suit for declaratory relief in federal court on the same day that it denied coverage. The district court ultimately agreed with Markel that it did not owe coverage and granted declaratory judgment in Markel’s favor.

The Fifth Circuit affirmed the district court’s ruling in an unpublished per curiam opinion. On appeal, the Verbeeks advanced two main arguments for why the Creditor Exclusion should not apply to the lawsuit brought by the banks. First, they argued that the banks did not assert claims in their “capacity” as creditors because the banks did not seek to hold them contractually responsible for the loans. The Verbeeks also argued that the Chapter 9 liquidation plan “stripped” the banks of their rights as creditors of Color Star. However, the court rejected these arguments. The court held that although the Verbeeks were not being asked to repay the loan, the dispute still arose entirely from the loan to Color Star. The court also found it “immaterial” that the banks were no longer asserting rights as creditors following the liquidation because the plain language of the Creditor Exclusion relied on the banks’ status at the time the claim was asserted. As the panel explained:

The fact that the state court plaintiffs may no longer have creditor rights is immaterial: they had such rights when they ‘brought’ the underlying litigation. The Verbeeks’ argument – which relies on the state court plaintiffs’ current status as purported noncreditors – rewrites the Creditor Exclusion such that it applies only when a claim is both ‘brought and maintained by’ a creditor. But, the Creditor Exclusion is written in the disjunctive. As such, the fact that the state court plaintiffs were creditors when they brought the suit is sufficient to trigger the Creditor Exclusion. (emphasis in original).

Additionally, the Verbeeks argued that one of the banks was suing as an “investor,” rather than a creditor, based on its own allegations. Even though the bank did plead that its loan was an “investment,” the appellate court relied on other factual allegations which showed that the expected returns were limited to the principal and interest payments on the loan. Just as a flower has the same scent no matter what it is called, a loan by any other name is still a loan, according to the Court. In doing so, the Court observed that its holding was consistent with Texas law, which requires an insurer’s duty to defend to be determined solely from the pleadings, as such rule “requires a court to focus on the factual allegations showing the origin of the damages claimed,” rather than mere labels. In sum, the panel held that the claim had been brought by the banks in their capacity as creditors. Thus, the Creditor Exclusion precluded coverage.

Notably, this decision contrasts with other recent federal appellate decisions in other circuits, which have found coverage under D&O policies for an insured’s liability stemming from unrepaid loans. See St. Paul Mercury Ins. Co. v. FDIC, 2016 U.S. App. LEXIS 18811 (9th Cir. 2016); St. Paul Mercury Ins. Co. v. FDIC, 774 F.3d 702, 710-11 (11th Cir. 2014).

One takeaway here is that the Creditor Exclusion in D&O policies may apply in circumstances beyond the traditional scenario where a lender sues an insured for past-due payments after a default. Its application also depends on the particular wording of the exclusion, which can vary between policies. When presented with claims which arise out of credit agreements, insurers should be wise to carefully consider the specific language of the exclusion, as well as the jurisdiction in which the claim is pending.

Brexit means Brexit…Really?

On 23 June 2016, 51.8% of voters in the UK voted in a referendum to leave the European Union. However, the process for formally leaving has been a journey into the unknown, leading to short term volatility in the financial markets and longer term uncertainty for businesses as they move into unchartered territory.

Whilst many businesses start to put in place contingency plans for the post-Brexit landscape, an unexpected procedural hurdle has been put up by a High Court ruling on 3 November 2016. Three senior Judges decided that the UK Government cannot invoke Article 50 of the Treaty of Lisbon (necessary to trigger the two-year period for the UK to leave the EU) without a vote in Parliament.

The legal challenge led by business-woman Gina Miller was concerned with procedural steps, not politics, but has raised again the uncomfortable and divisive fact that the referendum vote is not ‘legally binding’ – a point accepted by all parties in the litigation. The UK Government’s appeal to the High Court decision is due to be heard by all eleven Justices of the Supreme Court in December 2016.

The question of whether the Government has the power to invoke Article 50 without having a vote in Parliament is without legal precedent. It is nonetheless difficult to imagine that the Supreme Court will overrule with the High Court’s decision; it is more likely that the Supreme Court will uphold the High Court’s ruling and not bow to mounting pressure to side-step the fundamental constitutional principles of the sovereignty of Parliament.

The Government’s self-imposed timetable of March 2017 for the commencement of the formal two-year process is in jeopardy.

While the political and constitutional entanglements are played out in the judicial system and the media, the fact remains that for insurers based in the UK and in Europe the decision to leave the EU has significant commercial and regulatory consequences. Some London based insurers have opted to hedge their bets and set up operations in Ireland to allow Lloyds access to the European market. The current constitutional debate in the UK demonstrates a healthy democracy in action, but that comes with the side helping of prolonged uncertainty.

Ex-Rabobank Traders Robson and Thompson Receive Lighter Sentences for Libor Scheme

Two former Rabobank traders received minimal and no prison time earlier this month for their participation in a conspiracy to fix Libor, or the London interbank offered rate, to benefit traders’ positions at Rabobank.

On November 9, 2016, the former head of money market and derivatives trading for Rabobank in Northeast Asia, Paul Thompson, was sentenced to three months by U.S. District Judge Jed Rakoff, after pleading guilty to conspiring to commit wire fraud and bank fraud. Prosecutors said Thompson participated in a scheme with others to rig the U.S. dollar and yen Libor rates to benefit Rabobank’s trading positions. Thompson, a trader based in Hong Kong and Singapore, waived extradition and pled guilty in July after his arrest in Australia. While Judge Rakoff believed that prison time was warranted, he noted numerous mitigating factors entitling Thompson to a shorter term, including health issues suffered by Thompson himself and some of his family members. Judge Rakoff granted further leniency by allowing Thompson to return to Perth, Australia to spend Christmas with his family before beginning his sentence in February 2017. Thompson had sought community service or home detention in Australia.

On November 14, 2016, Judge Rakoff sentenced British trader Paul Robson to time served and two years of supervised release after Robson pled guilty in August 2013 to conspiring to rig Libor. In October 2015, Robson testified against co-conspirators Anthony Allen and Anthony Conti, stating that the two men were active participants in the scheme to tailor the global interest rate to benefits traders’ positions at Rabobank. Robson’s sentence represents a departure from the sentencing guidelines of 45 to 51 months. In handing down the sentence, Judge Rakoff emphasized the remorse and extensive cooperation from Robson, including his testimony against his former boss and other traders and his agreement to waive his extradition rights.

Libor supports the basis of many financial products around the world, including mortgage and credit card rates. U.S. and European authorities have spent years investigating whether banks tried to manipulate the Libor rate to benefit their own trading positions. The investigations have led to around $9 billion in regulatory settlements with financial institutions and charges against several individuals. A total of seven former Rabobank traders were charged by the United States Department of Justice after the bank reached a $1 billion deal in 2013 to resolve United States and European investigations. In March, co-conspirators Anthony Allen and Anthony Conti were sentenced by the United States District Court to two years and one year and one day in prison, respectively. Both individuals have appealed. Two other former Rabobank traders – Takayuki Yagamia and Lee Stewart – have pled guilty and await sentencing. Former senior trader at Rabobank’s Tokyo desk, Tetsuya Motomura, remains a fugitive from the United States Government. The case is U.S. v. Robson et al., United States District Court, Southern District of New York, No. 1:14-cr-00272.

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