Joseph M Mclaughlin

February 06, 2002 | Law.com

Is the claim derivative or direct? The question has vexed courts and practitioners in Delaware and elsewhere as they have sought to clarify the "often murky distinction" between the two types of corporate law claims. Yet characterizing a claim as derivative or direct carries important procedural and substantive law consequences, and may determine whether the claim may proceed at all.

By Joseph M. Mclaughlin

14 minute read

December 13, 2012 | New York Law Journal

In his Corporate Litigation column, Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett, writes that a non-reliance provision that is not boilerplate, but instead the product of negotiation between sophisticated parties dealing at arm's-length, may negate allegations of reasonable reliance on any extra-contractual representations.

By Joseph M. McLaughlin

16 minute read

August 12, 2004 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson, Thacher & Bartlett, writes that in Lewis v. Ward, the Delaware Supreme Court provided an excellent summary of the conceptual underpinnings of the doctrine and its exceptions and reminded practitioners of the utility of the daunting sounding (but useful) "post-merger double derivative action."

By Joseph M. McLaughlin

7 minute read

December 08, 2005 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett, examines how new SEC rules affect liability under sections 11 and 12(a)(2) of the Securities Act of 1933, under which purchasers of an issuer's securities in a registered offering have private rights of action for misstatements or omissions in a registration statement and materially misleading statements in prospectuses or oral communications soliciting a sale in a public offering.

By Joseph M. McLaughlin

13 minute read

October 11, 2007 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett, writes that if a shareholder plaintiff fails to make demand on a corporation's directors prior to filing a derivative action, it must allege why demand would have been futile. If the issue of demand futility is decided against that plaintiff, are others who seek to pursue derivative claims precluded from relitigating the issue? As recent case law demonstrates, the answer may depend on the jurisdiction in which the first suit is litigated.

By Joseph M. McLaughlin

18 minute read

February 11, 2010 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett, examines recent noteworthy decisions addressing the meaning of a conduct exclusion with an "in fact" trigger; whether D&O policies cover costs incurred by a company in responding to regulatory subpoenas and in a special litigation committee's investigation of shareholder derivative demands; the potential exclusionary effect of a warranty letter signed by a D&O policyholder; and showing that not every settlement of securities fraud litigation qualifies as insurable loss.

By Joseph M. McLaughlin

15 minute read

December 09, 2004 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson, Thacher & Bartlett, reports that, increasingly, the securities fraud lawsuit has a companion � a purported class action on behalf of participants in the company's 401(k) plan, seeking recovery for decreases in the value of company stock purchased at open market prices through the plan.

By Joseph M. McLaughlin

14 minute read

October 13, 2005 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson, Thacher & Bartlett, reviews two recent decisions which affirm that "limited severability" provisions in a D&O policy afford perilously inadequate protection against rescission for those who did not engage in any misconduct but serve with a policy signer who did, and another decision in the Enron litigation which addressed competing demands for coverage of defense costs and settlements from limited primary and excess policy proceeds.

By Joseph M. McLaughlin

15 minute read

February 10, 2005 | New York Law Journal

Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett LLP, writes that, when a company reaches the point of actual insolvency, directors and officers have fiduciary duties to the company's creditors in addition to shareholders. The principle that directors and officers may owe fiduciary duties to creditors at an earlier point, when the company enters the so-called "vicinity of insolvency" is a more recent development, but one that has gained traction.

By Joseph M. McLaughlin

13 minute read

June 09, 2011 | New York Law Journal

In his Directors' and Officers' Liability column, Joseph M. McLaughlin, a partner at Simpson Thacher & Bartlett, writes that on June 6 a unanimous U.S. Supreme Court drew a firm line between two separate elements of a private securities fraud claim: (i) reliance on alleged misrepresentations or omissions, and (ii) loss causation.

By Joseph M. McLaughlin

14 minute read