James N. Kramer

Partner

San Francisco

jkramer@orrick.com

Read full biography at www.orrick.com

Jim defends companies, and C-suite executives, officers and directors in shareholder class actions, derivative suits, RICO cases and regulatory proceedings. He is sought after to help clients mitigate securities litigation and enforcement risks, advising on corporate governance, fiduciary duty and disclosure issues. Leveraging his 30+ years as a litigator, Jim leads clients through complex, extensive internal investigations.

Recognized as a leader in Securities Litigation by Chambers USA, clients praise Jim as, “a spectacular relationship manager” and tell the publication, “Jim is one of the first people I will call to think through an issue. I would use him for any securities matters.” Jim is also regularly featured among Benchmark Litigation’s list of the nation’s Leading Litigators.

Jim is a frequent lecturer on securities and class action litigation and an editor for the Securities Reform Act Litigation Reporter. Jim is past chair of the Embarcadero YMCA Board of Managers and remains active in YMCA philanthropy. In his spare time, he enjoys time with his family and is a recreational long course triathlete.

Posts by: Jim Kramer

Looking Past the Labels: Bank’s Disgorgement Payment to SEC Not Necessarily Excluded from D&O Coverage

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In 2006, Bear Stearns agreed to a $250 million “neither admit nor deny” settlement with the SEC to settle charges that it facilitated late trading and deceptive market timing by its hedge fund customers. $160 million of that settlement payment was characterized in the SEC’s Order as disgorgement of profits, even though Bear Stearns contended its own profits from the trades were less than $17 million. J.P. Morgan (the successor to Bear Stearns) sought D&O insurance coverage for the portion of the disgorgement payment that was attributable to the profits of its hedge fund customers, rather than revenue it received. The insurers denied the Bank’s claim on the ground that New York public policy prohibits insurance coverage for disgorgement payments. Disgorgement, the reasoning goes, is the return of ill-gotten gains and therefore payment for intentionally caused harm. The insurers also argued that disgorgement does not qualify as a “loss” or “damage” under terms of the insurance policies. The trial court agreed and dismissed Bear Stearns coverage suit against its D&O insurers.

On June 11 the New York Court of Appeal reinstated Bear Stearns’s coverage action. J.P. Morgan Securities Inc., et al. v. Vigilant Ins. Co., et al., 2013 N.Y. LEXIS 1465 (June 11, 2013). The Court of Appeal held that the Court must look beyond the labels of the SEC Order and even beyond its findings that the Bank’s securities law violations were willful. Those findings, the Court held, were not sufficient to conclusively establish that Bear Stearns intentionally caused harm. In short, the Court of Appeal allows the possibility of coverage for disgorgement if the insured can demonstrate that the payment, although labeled “disgorgement”, is actually payment for something else that might otherwise qualify for insurance coverage.

The June 11 ruling is notable for another reason – it came the week before SEC Chairwoman Mary Jo White announced that the SEC would depart in some cases from its long-established practice of “neither admit nor deny” settlements. It is an open question whether the Court of Appeal would have allowed J.P. Morgan/Bear Stearns’ coverage action to proceed if its settlement with the SEC had not included a neither admit nor deny provision. The Court’s willingness to look beyond the disgorgement label further highlights the importance of avoiding binding admissions wherever possible, so as to leave open every possible coverage avenue.

 

How Corporate Charters Can Protect Directors from Money Damages for Acts of Negligence

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Several weeks ago we asked whether directors of public companies face potential liability for not preventing cyber attacks. But what about liability for other acts of oversight? Can directors be held personally liable for money damages when they have done nothing affirmatively wrong?

Generally, the answer is no. Many states, like Delaware, allow corporate charters to include provisions that protect directors (and sometimes officers) from money damages for certain breaches of fiduciary duty. Acts that are not protected include breaches of the duty of loyalty, intentional misconduct, knowing violations of the law or receiving an improper personal benefit. But where plaintiffs seek money damages for breaches of the duty of care, exculpatory provisions in corporate charters typically provide directors a defense to the claims.

Practically speaking, these provisions protect directors against claims of negligence, and some courts have held the provisions even go so far as to protect against “reckless indifference.” The protection stops, however, when a director consciously disregards his or her duties. For example, and with reference to the earlier discussion on cyber attacks, an exculpatory provision might not shield a director from money damages where (i) a damaging cyber attack occurred, and (ii) it could be proven that the director exhibited a “sustained or systematic failure to exercise reasonable oversight” over the company’s cybersecurity, such that it evidenced the director’s conscious disregard of cybersecurity. READ MORE →

Second Circuit Blunts Impact of American Pipe Tolling; Plaintiffs Must Bring ’33 Act Claims Before the Three Year Statute of Repose Expires

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The Second Circuit last week ruled on a key aspect of the timing of securities suits. Under the Supreme Court’s decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), plaintiffs are often able to revive claims by relying on earlier-filed class actions to toll the statute of limitations. RMBS plaintiffs have recently turned to American Pipe when their putative class actions are dismissed for lack of standing. 

In In re IndyMac Mortgage-Backed Securities Litigation, lead plaintiffs lacked standing to bring certain claims, which were dismissed by the district court. Other members of the asserted class—who had not been named as plaintiffs—sought to intervene in the action in order to bring those dismissed claims. Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York denied the investors’ motions to intervene. READ MORE →

Do A Deal and You’re Sure to Get Sued; Now, at Least, You Can Get Sued in Just One Place

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Merge Sign

These days almost every public company that announces an agreement to sell itself can expect to be the subject of multiple shareholder class actions challenging the transaction – even if shareholders will be receiving a blowout price for their shares under the terms of the agreement. Many of these cases are baseless, and are brought by plaintiffs hoping to leverage a quick settlement. Their strategy, in blunt terms, is to force a speedy payment by threatening to disrupt or stall the deal. Unfortunately, even if the litigation presents only a small risk of disrupting or delaying the deal, many companies feel obligated to settle rather than risk upsetting the deal.

It’s bad enough that target companies and their boards are forced to deal with these “worthless” “sue-on-every-deal cases,” as Delaware Vice Chancellor Travis Laster once described them, but they often have to deal with them in multiple jurisdictions. Indeed, rarely are shareholder class actions challenging a merger brought in a single forum. Instead, companies and their boards are forced to expend time and money defending against duplicative lawsuits in multiple fora around the country. READ MORE →

Do Directors Face Potential Liability for Not Preventing Cyber Attacks?

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Email

In the past weeks, we’ve reported that while most companies are properly disclosing their exposure to cybersecurity threats, the increasing occurrence and severity of cyber attacks has the SEC considering even more stringent cybersecurity disclosure requirements. Now, another study reports that while 38% of Fortune 500 companies have disclosed that a potential cyber event would “adversely” impact their business, only six percent of those companies purchase cyber security insurance.

What of the other 94%? Should they be doing more to protect themselves against the growing cyber threat? Do their directors have a fiduciary obligation to do more?

In re Caremark International Inc. Derivative Litigation, a Delaware decision from 1996, sets forth a director’s obligations to monitor against threats such as cyber attacks. In short, as long as a director acts in good faith, as long as she exercises proper due care and does not exhibit gross negligence, she cannot be held liable for failing to anticipate or prevent a cyber attack. However, if a plaintiff can show that a director “failed to act in the face of a known duty to act, thereby demonstrating a conscious disregard for [her] responsibilities,” it could give rise to a claim for breach of fiduciary duty. READ MORE →

Fannie and Freddie Shareholders to US: 2008 Government Takeover of Mortgage Giants Good For the Country; Not So Much For Us

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Can shareholders of a government-sponsored enterprise successfully challenge the constitutionality of a government takeover of the entity?  Shareholders of Fannie Mae and Freddie Mac will try to do so in a $41 billion class action filed against the United States in the Court of Federal Claims on June 10, 2013. Plaintiffs allege that even though the Federal Housing Finance Authority’s 2008 takeover of the mortgage giants benefited the nation as a whole, it harmed the companies’ shareholders and violated their constitutionally protected private ownership rights.

Congress established Fannie Mae and Freddie Mac to expand the nation’s secondary mortgage market by increasing the availability of funds to finance mortgages and home ownership. The government operated Fannie and Freddie until 1968 and 1989, respectively, when the companies were reorganized as “government-sponsored enterprises,” or federally chartered private corporations. Since then, both companies have operated as shareholder-owned, publicly traded corporations. But in 2008, in the midst of the financial crisis, both companies were placed under the conservatorship of FHFA, pursuant to the Housing and Economic Recovery Act (HERA).

Plaintiffs allege that prior to the 2008 takeover, the government adjusted the companies’ lending standards and capital restraints to encourage the companies to purchase a greater number of risky subprime securities. While this ultimately led to significant weaknesses in the companies’ portfolios, Plaintiffs contend that the companies nonetheless remained adequately capitalized and financially sound, and did not need the conservatorships. According to Plaintiffs, the government improperly bullied the companies’ boards into acquiescing in the takeover. READ MORE →

What Makes a Director “Independent”?

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Chairs Around a Table

What makes a director “independent”? That question is important, not only to investors who want to ensure that boards of directors exercise objective judgment on corporate affairs, but also to companies, who need assurance that their boards will not run afoul of exchange listing requirements, and to directors themselves, for protection against shareholder lawsuits challenging board decisions.

Listing requirements for both the New York Stock Exchange  and NASDAQ provide basic checklists for directors independence, and state generally that directors cannot be employed by the company, cannot have family members who are employed by the company and cannot have a controlling interest in the company’s substantial business partners. But the exchanges’ listing requirements also contemplate that the question of independence is far broader than any checklist. The NYSE’s listing requirements further note that directors should have “no material relationship” with the Company; NASDAQ’S requirements state directors should have no relationship which “would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.” READ MORE →

Purchase Timing a Wall to Facebook Derivative Litigation Despite Unenforceability of Forum Selection Clause

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Four derivative lawsuits against Facebook’s directors relating to alleged disclosure issues surrounding the company’s initial public offering have a new status: Dismissed. Last month, Judge Robert Sweet of the Southern District of New York dismissed the suits on standing and ripeness grounds, finding that IPO purchasers have no standing to pursue claims related to alleged misconduct that took place before the IPO. The dismissed derivative suits were “tag-along” actions that largely parroted allegations made by investors in a parallel securities class action also pending before Judge Sweet, and had sought to hold Facebook’s directors liable for damages the company might incur as a result of the securities class action.

In dismissing the suits, Judge Sweet held that plaintiffs who buy stock in an IPO lack standing to pursue derivative claims based on alleged misstatements in an IPO registration statement. As Judge Sweet explained, in order to have standing to sue derivatively on behalf of a company, a plaintiff must have owned stock in the company at the time of the alleged misconduct. The registration statement that the plaintiffs allege to have been misleading, however, was finalized and filed with the SEC two days before the IPO. Judge Sweet rejected plaintiffs’ attempts to create standing by arguing that the wrong continued through the date of the IPO because the directors did not correct the allegedly misleading statements by that date. READ MORE →

Shareholder Demands: Accepted, Refused or Deferred? Let’s ask RUSH.

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Chairs Around a Table

When a shareholder makes a demand on a company to pursue litigation, the company’s board can look to generally well-developed law to determine how to evaluate the demand. Though there is no one particular procedure a board must employ, there are numerous cases that explain how the board must inform itself about the demand in order to reach a good faith, “rational business decision” about whether to accept or refuse.

The rules for considering a shareholder demand are pragmatic, and afford corporate boards a dependable road map for responding to shareholder requests.

One open question (at least in Delaware, where it matters most) has been whether a board’s informed, good faith decision to defer action on a demand constitutes a “rational business decision” that is protected by the business judgment rule. Delaware courts have long held that while an informed board can refuse a demand, the one thing a board cannot do is nothing. At the same time, however, corporations often face the circumstance where there are follow-on shareholder litigation demands entirely duplicative of existing litigations or investigations. In those circumstances, a board could have any number of business justifications for wanting to defer action on the demand until the ongoing proceedings are resolved, but that would seem to violate the rule against doing nothing.

Genius rock lyricist Geddy Lee of RUSH once wrote “If you choose not to decide, you have still made a choice.”

Accordingly, the Ninth Circuit and certain federal district courts have recognized that a board’s informed, good faith decision to defer action on a demand during pending litigation or investigations is itself a decision that can be shielded by the business judgment rule. For example, in 2009, the Ninth Circuit found there was a “compelling” business justification for deferring action on a demand where the company’s pursuit of the demand’s allegations could be cast as an admission of wrongdoing in ongoing litigation. READ MORE →

SEC Commissioner Schapiro to Step Down After Four Tough Years

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Wall Street

The SEC announced last week that Commission chairman Mary L. Schapiro will end her tenure later this month. Previously an SEC commissioner from 1988 to 1994, Ms. Schapiro was appointed chairman by President Obama in January of 2009, in the wake of the financial crisis. She is the first woman to have held the chairman position full-time, and is also among the longest-serving commissioners in SEC history.

Ms. Schapiro’s four-year legacy is one of enforcement, and in each of the past two years the agency has brought more enforcement actions than ever before, including 735 enforcement actions in fiscal year 2011 and 734 actions in fiscal year 2012. One resulting victory was the SEC’s $550 million penalty against Goldman Sachs, the largest in SEC history, to settle claims related to Goldman’s involvement in the subprime mortgage meltdown. (Critics of Ms. Shapiro have downplayed the verdict, noting that no senior executives were singled out in the suit and that the penalty, while large, constituted only two weeks of Goldman’s earnings.) All told, Ms. Schapiro presided over the return of $6 billion to investors during her tenure.

Driven by tougher requirements of the Dodd-Frank Act, Ms. Schapiro also presided over one of the SEC’s busiest rulemaking periods in decades. In particular, she worked to pass a new rule creating a computerized monitoring system called the consolidated audit trail, or CAT, that will give the Commission unprecedented abilities to track trading activity. She also worked to streamline what many saw as an unnecessary bureaucracy, most notably eliminating a policy of her predecessor that required enforcement attorneys seek approval of the five member commission before opening any new inquiry.

Upon announcement of Ms. Schapiro’s resignation, President Obama immediately promoted current Commissioner Elisse B. Walter as her replacement. It remains to be seen whether Ms. Walter’s appointment will be on a permanent basis.