What Happened?
As Alston & Bird’s Securities Litigation Group reported, the number of securities class actions based on AI-related allegations is rising. With six new filings in the first half of 2024 and at least five more identified by the authors since, a new trend of AI lawsuits has emerged. This trajectory is likely to continue alongside increased AI-related research and development spending in the coming years.
Why Is It Important?
A recent proposed rule and several enforcement actions indicate that the Securities and Exchange Commission (“SEC”) has a growing appetite for regulating AI-specific disclosures, and shareholders’ interest in claims. In this environment, it is imperative that companies remain cognizant of their public statements on AI.
Last year, the SEC proposed a rule that would govern AI use by broker dealers and investment advisers. Although the rule is not yet final, the agency has pursued several AI-related enforcement actions with its authority to regulate false or misleading public statements.
Thus far, the SEC’s enforcement actions have been limited to companies whose public statements on AI usage were at issue. These companies allegedly claimed to use a specific AI model to elevate their customer offerings but could not provide any evidence of their AI implementation when questioned by the SEC.
Those previous actions do not necessarily mean that a company’s ability to prove it implemented AI technology in some form will be enough to avoid scrutiny or liability. Investor plaintiffs targeting companies’ AI disclosures represent a new frontier of potential risk for companies and their directors and officers.
What To Do Now?
Companies should consider whether the board’s audit or risk committees should be tasked with understanding the company’s AI use and considering associated disclosures in addition to any privacy and confidentiality concerns that arise. Companies can identify their AI experts to properly vet any technical proposed disclosures on AI to confirm the disclosures are accurate. The key is to make sure AI disclosures and company claims about AI prospects have a reasonable basis that’s adequately disclosed.
Companies should also aim to create and maintain appropriate risk disclosures. When disclosing material risks related to AI, risk factors become more meaningful when they are tailored to the company and the industry, not merely boilerplate.