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On his D&O Diary blog, Kevin LaCroix has been tracking securities lawsuits and D&O claims that stemmed from sexual misconduct allegations. Last week, he analyzed the recent news that CBS had agreed to settle a securities class action lawsuit that was filed when news of inappropriate behavior by the company’s former CEO surfaced, and was followed by a 6% decline in company stock price. Kevin notes:

In their amended complaint (here), the plaintiffs alleged that the defendants had on numerous occasions stated that the company maintained the highest standards for ethics and appropriate business actions, and that the company had a zero tolerance policy for sexual harassment, while in fact the company had a pervasive culture of sexual misconduct; that the company’s culture created an undisclosed risk that Moonves would have to leave the company; and that after the #MeToo story first began to emerge the defendants – and Moonves in particular—made a number of reassuring statements about the company and its practices, which the plaintiffs allege were misleading. The complaint further alleges that a number of CBS executives, including Moonves, sold millions of dollars’ worth of their personal holding in company stock in advance of the revelations about Moonves.

As detailed here, on January 15, 2020, in a lengthy and detailed opinion, Southern District of New York Judge Valerie Caproni largely granted the defendants’ motion to dismiss the lawsuit. Although she largely rejected the plaintiffs’ claims, Judge Caproni did find one statement that Moonves himself had made at a November 29, 2017 industry event to be false and misleading. Moonves had said that the #MeToo movement was a “watershed event,” adding that “It’s important that a company’s culture will not allow for this. And that’s the thing that is far-reaching. There’s a lot we’re learning. There’s a lot we didn’t know.”

Judge Caproni found, taking the allegations in the light most favorable to the plaintiffs, that this statement was — “just barely” — false and misleading, as it implied that Moonves was just learning for the first time about these kinds of allegations when he was at the time actively seeking to conceal his own misconduct. The statement also falsely implied that he was not personally at risk himself.

Kevin explains that the plaintiffs ended up with a $14.75 million settlement payable by the company or its insurers – not record-breaking, but nothing to sneeze at. Meanwhile, Kevin also blogged that a court dismissed a securities fraud suit against Activision Blizzard.

Results here are decidedly mixed, as Kevin notes. But because lawsuits are distracting, attract negative attention and do sometimes result in significant payouts, boards will need to continue to pay attention to corporate culture risks and executive misbehavior. We have a checklist for members on this topic, which we recently updated to reflect legal restrictions on mandatory arbitration provisions. This checklist provides step-by-step considerations for risk assessments and more. If you aren’t already a member, sign up today to get access – you can become a member online, by calling 1-800-737-1271, or by emailing sales@ccrcorp.com. Our “100 Day Promise” means there’s no risk to signing up!

– Liz Dunshee