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Marijuana legalization, Silicon Valley excess may lead to more IPO lawsuits

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NEW YORK — The “exuberance of Silicon Valley” and the legalization of marijuana are two factors likely to lead to increased initial public offering litigation this year and next, said plaintiff attorney Ramzi Abadou.

The partner at law firm Kahn Swick & Foti L.L.P. in San Francisco said technology firms in the California region are a likely source of IPO activity.

“Some of the excess and exuberance and irrationality we saw in the early 2000s may be around the corner,” he said.

Mr. Abadou also said he expects companies connected to the marijuana industry to add to the IPO total in the next two years, and one reason plaintiff attorneys “love” IPO litigation is because it is easier to bring than other types of securities litigation.

“It feels a heck of lot like 2000, absent the multiyear deals,” said Brian Wanat, New York-based CEO for the U.S. financial services group of Aon Risk Solutions, referring to the last turn in the insurance market.

“It feels like we're sitting on a bubble,” which may be attributable to factors including low interest rates and oil prices. “We're sitting on something pretty massive here,” he said.

Both made the comments during the Professional Liability Underwriting Society's D&O Symposium in New York earlier this month, where the topics also included cyber risk, derivative litigation and emerging international exposures.

Mary L. Schapiro, former chairman of the U.S. Securities and Exchange Commission, said the potential fallout from cyber-related losses is devastating, and that boards of directors need to spend much more time on this issue.

Ms. Schapiro, who served as SEC chairman from 2009-2012, said during a keynote address that boards need to encourage company employees to develop expertise in this area and report directly to the board, but this should not alleviate boards' own responsibilities to be up to speed on this issue.

Ms. Schapiro also said there is pressure on Capitol Hill to codify the SEC's guidance on companies' disclosure of cyber threats, which was issued in 2011.

Delaware decision

When discussing legal decisions affecting the boardroom, speakers cited a recent Delaware ruling that firms domiciled in the state, which accounts for more than half of publicly held companies nationwide, may include a requirement in their bylaws that derivative litigation be filed in a particular jurisdiction.

“It's certainly more efficient” than having lawsuits filed in multiple forums, said Francis G.X. Pileggi, a partner at Eckert, Seamans, Cherin & Mellott L.L.C. in Wilmington, Delaware.

“Boards need to develop a self-critical mindset” as to how they use third-party advisers, whether they are law firms or an investment banker, said Christopher D. Moore, global head of litigation and legal policy at GE Capital in Norwalk, Connecticut. They “need to be a little less deferential” to management and “a little more independent” in obtaining advice, he said.

But recent large settlements of derivative lawsuits are not necessarily a trend, said Jay B. Kasner, a partner at Skadden, Arps, Slate, Meagher & Flom L.L.P. in New York.

“I think everything needs to be taken on a case-by-case basis,” he said.

“The regulatory environment is definitely changing” in the Asia region, said Singapore-based Arati Varma, underwriting officer for Southeast Asia, India and the Middle East for Chubb Specialty Insurance, a unit of Chubb Corp.

Not only are domestic regulators “becoming a lot more vigilant,” but there is also greater enforcement activity occurring across industry segments, Ms. Varma said.

Kevin LaCroix, an attorney and executive vice president at RT ProExec, a unit of R-T Specialty in Beachwood, Ohio, said among reasons an international perspective is important is “clients know that they do business in a global economy” and their counterparts around the world “are dealing with many of the same issues and coming up with different solutions than we are.”

During another keynote address, Peter J. Eastwood, president of Berkshire Hathaway Specialty Insurance in Boston, which is part of Berkshire Hathaway Inc., said he would like to see the operation launch its platform in the United Kingdom and Continental Europe this year and “build it in a fairly robust way.”