Vigorous Defense, With a Twist

Today, AtriCure, Inc. (NASDAQ: ATRC) issued a press release regarding the securities class action lawsuits that were recently filed in the United States District Court for the Southern District of New York against the company and certain of its officers that adds yet another wrinkle to the Securities Litigation Universe of [Press] Release Permutations (a/k/a SLURP).

The SLURP collection was previously discussed here and here.

In the release, David Drachman, the president and CEO of the West Chester, Ohio based medical device company stated:

We believe that these allegations are without merit and we intend to vigorously defend the Company. As a public company, the Company has maintained insurance coverage to address such matters. Management is and will remain focused on the growth and development of our Company.

Mr. Drachman has the party line down with his "vigorous defense" proclamation, but it is a bit unusual to publicly discuss reliance on insurance coverage to pay for costs associated with a securities class action when there has been no adjudication of the claims, and thus the insurer may still deny coverage.

NASDAQ (where AtriCure is listed) has "A Guide for North American Companies Listing on the U.S. Securities Markets," which explains many of the issues surrounding public offerings and D&O policies. Latham & Watkins LLP also has an excellent Client Alert discussing D&O insurance issues in the context of options-backdating cases.

So this new version of the vigorous defense press release will be called the, "We didn't do it, we're going to come out swinging, and, hey, somebody else is going to pay for it" press release.

I wonder if The D&O Diary has anything to say about this?

Daily Trivia: Latham's web page for the firm's "Securities Litigation and Professional Liability" practice group indicates that the attorneys with the firm have handled "more than 200 securities class actions" in the past decade. According to Stanford's Securities Class Action Clearinghouse, that is about 8% of all securities class actions filed since the passage of the PSLRA.