The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

The U.S. Supreme Court’s 2011 decision in Wal-Mart Stores v. Dukes continues to agitate the employment practices litigation arena while at the same time both EEOC enforcement activity and wage and hour litigation continue to surge, according to the annual review of workplace litigation by the Seyfarth Shaw law firm. The law firm’s January 14, 2013 press release about this year’s ninth edition of the annual Workplace Class Action Litigation Report can be found here. The report’s introductory “trends” chapter and the “top ten” settlements chapter can be found here.

Among the many changes that the Wal-Mart case has brought about during the past year is that it resulted in a decline in the levels and numbers of employment discrimination class action settlements in 2012. According to the report, the 2012 total for all employment discrimination class action settlements was about $49 million, which is well below the $348 million level in 2010, the year before the Wal-Mart decision, and the lowest annual level since 2006. (As discussed n greater detail here, in its June 2011 decision in the Wal-Mart case, the Supreme Court established a heighted standard to satisfy the “commonality” required in order to certify a class.)

This decline in aggregate settlements is due to the fact that employers settled many fewer employment discrimination cases during 2012, fewer than “at any time over the past decade and at a fraction of levels as in the period from 2006 to 2011.” The decline reflects the difficulty in the wake of Wal-Mart in certifying a nationwide class, as well as the ability of the defendants “to dismantle large class cases or to devalue them for settlement purposes.” Indeed, according to the study, the Wal-Mart case has “caused both federal and state courts to conduct a wholesale review of the propriety of previous class certification orders in pending cases.”

At the same time, though, governmental enforcement activity remained at “white hot” levels in 2012. According to the report, more discrimination charges were filed with the EEOC in 2012 than in all but one previous year since the Commission was founded. The Commission is particularly focused on its “systemic investigation program” in which the agency is emphasizing the “identification, investigation and litigation of discrimination claims affecting large groups of ‘alleged victims.’” According to the study, the agency is focused on “high-impact, high-stakes litigation.”

In particular, the EEOC’s prosecution of “pattern or practice lawsuits” is “an agency-wide priority.” The Commission completed work on 240 systemic investigations in fiscal year 2012, resulting in 94 ‘probable cause’ determinations and 46 settlement agreements or conciliation agreements that yielded a total recovery of $36.2 million for systemic claims.

And while workplace litigation overall has remained level with prior years, wage and hour related litigation “continued to out-pace all other types of work place class actions.”   Thus, while ERISA litigation was down slightly for the year (from 8,414 cases in 2011 to 7,908 in 2012, a decline of about 6%) and employment discrimination filings were also down (from 14,411 in 2011 to 14,260 in 2012, a decline of 1%), there were 7,908 FLSA lawsuit filings in 2012, representing about a 16% increase from the 6,779 filings in 2011. In addition, state court wage and hour class action lawsuit filings also surged in 2012. The report projects that “the vigorous pursuit of nationwide FLSA collective actions by the plaintiffs’ bar will continue in 2013.”

While the U.S. Supreme Court’s Wal-Mart decision, as well as its 2011 ruling in AT&T Mobility v. Concepcion (recognizing the enforceability of contractual arbitration agreements), have unquestionably had an impact on the workplace litigation arena, the plaintiffs class action bar has moved quickly to respond. According to the report, 2012 saw “rapid strategic changes based on evolving decisions and developments.” The plaintiffs’ bar “began the process of ‘re-booting’ class–wide theories of certification, as well as establishing liability and damages on a class-wide basis.”

As a result, “workplace class action litigation case law is in flux, and more change is inevitable in 2013.” Among other things, the report suggests that as a result of these changes, “future employment discrimination class action filings are likely to increase due to a strategy whereby state or regional-type classes are asserted rather than nationwide, mega-cases.”

A January 14, 2013 Corporate Counsel article about the Seyfarth Shaw report can be found here. Special thanks to Gerald Maatman, the report’s co-author and chair of the Seyfarth Shaw class action litigation group, for providing me with a copy of the report and press release. Maatman’s January 14, 2013 post on the Workplace Class Action Blog about the report can be found here.

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Although the class action lawsuit is most often associated with the litigious legal culture in the United States, the fact is that in recent years class action and other group litigation procedures have been expanding around the world. Forces of globalization and the rise of organized groups of aggrieved claimants have encourage a host of countries to adopt class, collective or other representative action procedures, and still other countries are currently considering the adoption of these kinds of legal schemes.

The availability of these kinds of collective action procedures in many countries is an increasing concern for legal and insurance professionals around the world, as well as for their clients. However, even with the vast resources of the Internet only a mouse click away, it can be very challenging to determine whether any given country has adopted some form of collective action and how any given country’s collective action scheme compares to others.

Fortunately, there is now a terrific resource that collects and organizes this information in a single volume. The book, entitled World Class Actions: A Guide to Group and Representative Actions Around the Globe (about which refer here), was edited by Paul Karlsgodt, of the Baker & Hostetler law firm. (Karlsgodt may be familiar to many readers as the author of Classactionblawg.com.) The book consolidates the work of 53 different authors from around the world, whose contributions address the development of collective action procedures across the globe.

The book’s various chapters address the availability of class procedures not only in North America and Europe, but Latin America, Asia and even parts of Africa. Each chapter is written by a local attorney familiar with the laws, best practices, legal climate and culture of the jurisdiction. Each of the entries describes the relevant aspects of the country or countries civil court system and surveys the available collective action procedures. Each entry also includes relevant cultural considerations that pertain to the processes and remedies available in the relevant country’s courts.

The book also incorporates a separate section of essays on the issues concerning transnational law – that is, issue or actions that span geographic and political boundaries. This portion of the book addresses the challenges surrounding efforts to develop binding global solutions to private disputes. In addition, the book addresses the problems that can arise when  the claimants are not all located in a single country or when there are  parallel actions involving the same defendants proceeding in multiple jurisdictions.

This new book is provides a helpful introduction to the incredibly complex and varied topic of collective actions around the world. It will serve as a valuable resource for lawyers and other professionals as they attempt to navigate and develop strategies for litigation and risk management while doing business abroad. This book will be particularly valuable for those whose jobs require them to understand and manage the litigation risks their clients must attempt to manage in their operations around the world. I highly recommend this book.

The Class Action Playbook: And speaking of class actions, the same publisher that is responsible for World Class Actions has also recently published the second edition of The Class Action Playbook (about which refer here), a single volume class action litigation resource written by Brian Anderson of the O’Melveny & Myers law firm and Andrew Trask of the McGuire Woods law firm. (Trask may be familiar to readers of this blog as the author of the Class Action Countermeasures blog.)

The Playbook is intended as a guide for practitioners and others who must navigate the class action process in the U.S. courts, aiming to provide the requisite information to permit the participants to develop their strategies as the action progresses. The authors explain the importance of the issues at each stage in the process and the factors participants should consider in deciding what actions to take.

The publication of the second edition is particularly timely as there have a number of recent significant developments, including for example, the U.S. Supreme Court’s decisions in the Wal-Mart case, the Concepcion case, and the Matrixx Initiatives case. The updated version is a useful practical guide for anyone involved in class action litigation.

And Speaking of Collective Actions: A flock of starlings is called a “murmuration,” but that description hardly does justice to what starlings are capable of collectively. As described in a November 2011 post on Time.com (here):

No one knows why they do it. Yet each fall, thousands of starlings dance in the twilight above Gretna, Scotland. The birds gather in magical shape-shifting flocks called murmurations, having migrated in the millions from Russia and Scandinavia to escape winter’s bite. Scientists aren’t sure how they do it, either. Even complex algorithmic models haven’t yet explained the starlings’ acrobatics, which rely on the tiny bird’s quicksilver reaction time of under 100 milliseconds to avoid aerial collisions—and predators—in the giant flock. Despite their show of force in the dusky sky, starlings have declined significantly in the UK in recent years, perhaps because of a drop in nesting sites. The birds still roost in several of Britain’s rural pastures, however, settling down to sleep (and chatter) after the evening’s ballet.

I confess that until I had seen the video below, sent to me by an industry colleague, I had no idea that starlings were capable of anything remotely interesting. But I have to say that now that I am acquainted with the murmuration of starlings, I have an entirely new appreciation for the birds. Please give your self a treat and watch this video, embedded below.

A November 8, 2011 Wired Magazine article entitled “The Startling Science of Starling Murmurations” can be found here.

Murmuration from Islands & Rivers on Vimeo.

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In this post, I review two recent law firm memos examining the state of class action litigation in Australia and Mexico, respectively. I first review class actions in Australia, and then examine class actions in Mexico below.

AUSTRALIA

Class actions, which have been available as a procedural alternative in Australia since 1992 are “now an established part of Australia’s litigation landscape, according to a March 2, 2012 memorandum from the King & Wood Mallesons law firm entitled “Class Actions in Australia: The Year in Review 2011” (here). Though the “introduction of class action regimes has not yet led to the flood of litigation that some commentators had prediction,” the memo notes, class actions “remain a significant concern for both directors and in-house counsel alike due to the scale of many of these claims.”

According to the memo, an average of only 14 class actions is filed every year in the Federal Court (including all types of cases, including consumer actions), representing less than 1% of all Federal Court proceedings. The authors note that during 2011, a number of significant new shareholder class actions were commenced, including cases involving Nufarm, Gunns, and ABC learning. Though there “was no single standout settlement” during the year,  the total value of 2011 shareholder class settlements was over $500 million.

During 2011, “significant pre-litigation requirements” were introduce in Federal Court, which requires parties to file statements setting out the “genuine steps” they have taken to try to resolve a dispute or to clarify the issues between them. The memo notes though is early yet to assess the impact of these requirements on class actions, “plaintiff representatives have stated that they consider the regime a powerful tool for obtaining information on liability from defendants sooner, thereby pushing class actions to early resolution.” With these rules in place, the authors expect that Federal Courts will “take a much more active approach to managing class actions in its jurisdiction.”

The Australian class action system has a number of distinctive features, including the use of an “opt out” class action system, whereby class members are included in the class unless they take positive steps to remove themselves from the class. The Australian approach to class actions is also characterized by the increasing presence of litigation funders that sponsor claims. These two characteristics have come together in the growth of “closed classes,” which limit the group members to persons who have retained the solicitors involved or have entered an agreement with the litigation funders.

Though this “closed class” approach has been criticized, they have also been approved by the courts, “even though the effect is to convert the statutory opt out regime into an opt in regime and so exclude potential claimants.” The memo notes that “the increased use of closed classes reflects a desire by funders and solicitors to have certainty of returns,” and may even be of benefit to defendants, “enabling them to better ascertain their potential liability and thereby promote settlement.”

Another recent development has been the rise in the involvement of law firms “not traditionally identified with class actions.” This has not only led to the rise of competing class action lawsuits, but it has also led to the procedural issues, due to the complexity of the litigation procedures involved. A series of decisions cited in the memo demonstrates that “class action practice remains technical” and any party involved in class litigation “must remain mindful of the additional requirements imposed concerning the conduct of such proceedings.”

On the other hand, “recent settlements also show that acting in class actions, either as the plaintiffs’ lawyers or the litigation funders, may be a good investment.” The authors cite one recent settlement in which the court approved plaintiffs’ attorneys’ fees of A$25 million. The authors also note that in the Oz Minerals shareholder class action, two plaintiffs’ firms were awarded just under A$5 million in legal fees, and the litigation funder reported a net gain of A$12.8 million.

During 2011, claimants showed an “increased willingness” to include advisors as class action defendants. The authors note that “in some cases, this is a pragmatic decision given the insolvency of the true target of the litigation” and reflects “a recognition by plaintiff lawyers that advisors, covered as they may be by professional indemnity insurance and with professional reputations to protect, could alter the settlement dynamic,” though the involvement of multiple defendants could result in greater costs, complexity and delay. The authors cite 2011 class actions in which the defendants include auditors, stock brokers and financial advisors.

In an observation that may be of particular interest to readers of this blog, the authors note that “one development that was predicted but has not been common” is “the inclusion of company directors as individual defendants to class actions.” The authors suggest that this “reflects the belief that it is the company that has the deeper pockets and reputation to protect, and it is generally the more lucrative target.” The authors do note at least a couple of exceptions, in which the target company was insolvent or in administration, where directors and advisors “remain attractive defendants.”

The involvement of litigation funding firms has been part of the scene for years but questions continue to arise, even through satellite litigation, including disputes over the funders’ funding arrangements. In addition, in 2011 draft regulations were introduced that would impose a requirement that all litigation funders have adequate policies and procedures in place to manage any conflicts of interest. Others have called for the funders to be licensed and registered. Despite this agitation, though, “litigation funding in Australia is an increasingly sophisticated business.” The authors also note that the funders’ “financial imperative,” which encourages selectivity to ensure returns, “will continue to impose some degree of discipline on the funding industry.”

The report notes that during 2011, courts considering proposed settlements took the involvement of litigation funders into account in assessing the settlements. The courts expressly took into account the amount to be paid to the funder.

The authors conclude their memo with the an expression of their expectation that during 2012, class action proponents will continue to push class action proceedings into nontraditional areas, and that many of the claims may be advanced by “new entrants” into the class action arena, including “overseas sources of funding.” The authors also expect that during 2012 there may be important rulings on critical issues such as causation and reliance, the potential liability of outside advisors (such as auditors and rating agencies). In addition, the question of increased governmental regulation of litigation funding is “expected to remain a live issue well into 2012.”

MEXICO

Beginning March 1, 2012, companies doing business in Mexico will face the risk of class action lawsuits in Mexican federal courts, according to a March 2012 memorandum from the Jones Day law firm entitled “New Class Action Rules in Mexico Create Significant Risks for Companies Doing Business in Mexico” (here).

Pursuant to a series of legislative enactments, private plaintiffs, government entities and certain nonprofits may bring consumer, financial, antitrust and environmental claims as “collective” lawsuits. The legislation authorizes the courts to award classwide-damages and injunctive relief. The provisions allow for a highly expedited class certification process, although the litigation regime is built on an “opt in” rather than an “opt out” scheme.

The memo’s authors note that among the many unknowns about this new Mexican class action regime is the res judicata effect of a judgment in a collective action. The memo notes that “it is not known whether an individual who fails to opt in to a collective action … will be precluded from bringing future lawsuits.”

The legislation’s features relating to fees may impose a certain limitation on the attractiveness of these kinds of actions. Thus, although an unsuccessful plaintiff will not be required to pay any portion of the defendant’s legal fees, the new laws cap plaintiffs’ fees based on a calculation linked to the minimum wages in Mexico City. The purpose of these provisions is to reduce the percentage of a judgment that goes to the plaintiffs’ attorneys. Obviously these provisions “reduce the incentive for plaintiffs’ attorneys to bring such lawsuits.

The memo, which also contains helpful comparisons between the new Mexican collective action scheme and collective actions under Brazilian law and class actions under U.S. law, concludes that “while there are a whole host of questions about the new laws that remain unanswered,” the new collective action procedure “presents significant new risks for businesses operating in Mexico.”

DISCUSSION

In the wake of the U.S. Supreme Court’s June 2010 decision in the Morrison case, non-U.S. investors have been forced to consider alternatives to securities claims in U.S. courts as a way to try to recoup losses based on alleged misrepresentations and omissions. Developments in Canada and Netherlands have raised the profile of procedures available in those countries as potential alternative means for shareholder recoveries.

Australia remains yet another alternative jurisdiction. With its opt out class action system and the availability of litigation funding to finance claims, the Australian class action scheme as certain attractive features. In addition, class action litigation is already a recognized part of the litigation landscape there. The Australian class action regime has previously been employed to facilitation shareholder class recoveries. Nevertheless, the Australian class action system is still evolving, with many critical legal issues yet to be addressed. As the authors of the legal memo note, “we have not yet seen a marked increase in the prevalence of Australian shareholder class actions.”

In the post-Morrison environment, class action litigation developments in any jurisdiction will be watched closely. The relative maturity of the Australian class action litigation scheme and the extent of activity already in that country will make Australia a country worth watching closely. The willingness of plaintiffs’ lawyers and litigation funders to take on these cases suggests that Australia may be a country in which shareholder class action litigation advances significantly in the years ahead.

As for Mexico, the new regime has only just become effective, and there are too many unanswered questions about the new provisions to make any sort of assessment. It is noteworthy that an increasing number of jurisdictions are adopting procedures that provide means for aggrieved persons to seek collective relief. As more countries adopt procedures of this type, aggrieved investors increasingly will seek to use these procedures. The U.S. Supreme Court’s Morrison decision may have had the unanticipated effect of accelerating this process.

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A couple of years ago, a "worrisome trend" developed in securities class action litigation, in which large institutional investors began routinely opting out of plaintiff class to separately pursue their own individual claims under the securities laws. The settlement of these individual opt out actions in many cases rivaled, in the aggregate, the amount of the class action settlement, and often exceeded the class settlement in terms of percentage of shareholder losses recovered.

These developments caused some observers to question whether we were headed toward a two-tiered system of securities litigation, where the large institutional investors separately pursued their own claims and the class action proceeded on behalf of other investors.

As it turned out, however, the phenomenon of the large individual opt out settlement separate from the class has ceased to be as prominent as it briefly was during the period 2006 to 2008. Since that time, there have been fewer high profile opt out settlements, and the predictions about fundamental alterations of securities class action litigation have died down.

However, in a development that seems to raise the possibility that the high profile opt-out action may be back, on July 22, 2010, New York Comptroller Thomas P. DiNapoli announced that he had filed two separate individual actions on behalf of New York state pension funds against Merrill Lynch and Bank of America and their respective individual directors and officers.

In the Merrill Lynch complaint (a copy of which can be found here), DiNapoli alleges that between October 17, 2006 and December 31, 2008, the defendants misrepresented the company’s "true exposures to poorly underwritten subprime mortgages, as well as the value of the Company’s subprime-exposed assets and liabilities and the effectiveness of Merrill’s risk management. The complaint alleges beginning in October 2007 the company began a series of stair step writedowns of the value of the company’s toxic assets, and that ultimately the company was forced to merge with Bank of America as a result of its exposure to subprime mortgages.

In the Bank of America Complaint (a copy of which can be found here), DiNapoli alleges in the documents for BoA’s merger with Merrill, the company and three of its senior executives failed to disclose Merrill’s massive fourth quarter 2008 losses and also failed to disclose BofA’s and Merrill’s agreement to permit Merrill to pay up to $5.8 billion in bonuses. The Complaint also alleges that the defendants violated the securities laws through a series of misleading statements and omissions during the period September 15, 2008 (when the merger was announced) and January 21, 2009 (when the information about the fourth quarter losses and the bonuses were made public).

The New York State Pension funds owned 17.7 million BofA shares at the time of the merger and acquired another 3 million between September 15, 2008 and January 21, 2009.

The circumstances described in DiNapoli’s complaints have previously been the subject of extensive litigation. Among other things, the allegations in DiNapoli’s complaint against the Bank of America defendants previously were the subjective of a high profile SEC enforcement action that ultimately resulted in a $150 million settlement. (For a discussion of the events surrounding this SEC settlement, refer here.)

In addition, there previously have been securities class action lawsuits filed against both the Merrill defendants and Bank of America defendants. The Bank of America class action lawsuit is in fact being driven by a group of public pension fund defendants, led by Ohio Attorney General Richard Cordray on behalf of Ohio public pension funds.

The circumstances referenced in DiNapoli’s Merrill Lynch complaint were also the subject of a separate securities class action lawsuit, about which refer here. Indeed, the parties to the Merrill Lynch lawsuit have already entered a $475 million settlement on behalf of the class, which the Southern District of New York Judge Jed Rakoff approved on August 4, 2009.

In bringing his separate lawsuits on behalf of the New York public pension funds, DiNapoli has made a conscious and deliberate decision to opt out of the preexisting class action litigation against the two sets of defendants. Public statements by representatives of DiNapoli’s office made it clear the reason he took the separate action on behalf of the public pension funds is because "our attorneys believe this gives us a chance to get a better recovery." The possible recovery on behalf of the funds could reach "tens of millions of dollars."

DiNapoli’s action to opt out of the class action on the theory that the funds’ recovery will be greater if they proceed individually rather than part of the class is exactly what commentators had been predicting a couple of years ago, before the opt-out phenomenon faded into the background. DiNapoli’s action is all the more noteworthy with respect to the Merrill Lynch suit is all the more noteworthy, given the fact that the class has already entered a massive $475 million settlement. DiNapoli’s action not only raises the question whether other institutional plaintiffs might opt out in these cases, but whether the plaintiffs will opt out in other cases as well.

The interesting thing about the public explanations for DiNapoli’s action is that the decision seems to be the result of persuasion from the attorneys who convinced DiNapoli’s office to opt out. The presence of an entrepreneurial group of plaintiffs’ lawyers motivated to try to obtain individual institutional investor representations by convincing the investors to opt out of the class suggests that, even if the prevalence of high profile opt out actions may have faded into the background, we are likely to continue more of these kinds of developments going forward. The political motivations of public pension fund representatives clearly support these developments.

Of course, it remains to be seen if the New York funds will actually fare better than the classes in these cases. As Adam Savett pointed out in an interesting January 22, 2010 post on the Securities Litigation Watch, even if some claimant fare better by opting out, there can also be a "downside." The post refers to the claimants that opted out of the Aspen Technology class action (which settled for $5.6 million) but ultimately had their claims dismissed based on lack of proof of fraud, and so received nothing.

Nevertheless, if other institutional investors are persuaded that they will do better by proceeding individually, securities class action litigation could become even more complicated than it already is. The existence of separate proceedings could both drive up total litigation costs and increase both the cost and complexity of case settlements. My prior discussion of the potential problems the opt-out phenomenon might represent can be found here.

DiNapoli’s decision to separate the New York funds from the Bank of America class action, in which the Ohio Attorney General is taking the lead, presents an interesting contrast to DiNapoli’s actions in connection with the securities litigation pending against BP, in which the Ohio AG and DiNapoli are collaboratively pursing the class action litigation on behalf of their respective states’ pension funds, and, as reflected here, are in fact together seeking lead plaintiff status in the litigation. Whatever else might be said, it seems that DiNapoli has not been persuaded that the New York funds will always do better outside of the class action process.

Understanding the Global Economy: If like me you find so much about the current circumstances of the global economy confusing, you will want to watch the following John Clark and Bryan Dawe video in which they summarize the basics in an admirable fashion, particularly the way the unbroken chain of governmental borrowing ultimately presents unanswerable questions. (Special thanks to the CorporateCounsel.net blog for the link to this entertaining video.)

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The 2008 securities lawsuit filings were dominated by new lawsuits filed against companies in the financial sector, as has been well-documented elsewhere (refer here). But while lawsuits against financial companies were the most prominent feature of the 2008 securities filings, there were also a significant number of lawsuits filed against companies outside the financial sector. In particular, life sciences companies, which historically have experienced a heightened level of securities litigation exposure, suffered a significant level of litigation activity once again in 2008.

For purposes of this post, I am including under the heading "life sciences" companies any company either in SIC Code series 283 (Drugs) or in SIC Code series 384 (Surgical, Medical and Dental Instruments and Supplies). Reasonable minds could differ about whether additional categories should also be included within life sciences companies, but the interests of simplicity and consistency with my own prior analyses support this categorical definition.

A review of the 2008 securities lawsuit filings shows that, notwithstanding the primacy of litigation involving financial companies during the year, heightened securities litigation activity involving life sciences companies continued in 2008.

According to my analyses, during 2008, there were 15 new securities lawsuits filed against companies in the 283 SIC Code series, including nine in the 2834 SIC Code category (Pharmaceutical Preparations). There were also eight securities lawsuits filed against companies in the 384 SIC Code category, including five in the 3845 SIC Code category (Electromedical Apparatus).

The fact that there were 23 new securities lawsuits filed against life sciences companies in 2008 is quite remarkable given the predominance of the credit crisis litigation wave.

The total number of life sciences lawsuits is significant in relative terms as well. By way of comparison to the 23 new securities lawsuits filed against life sciences companies in 2008, there were 21 securities lawsuits filed against life sciences companies in 2007. (My detailed analysis of the 2007 life sciences securities lawsuits can be found here.)

The fact that the number of lawsuits filed against life sciences companies actually increased in 2008 is extraordinary in light of the extent of the surging credit crisis litigation wave.

The 23 securities lawsuits filed against life sciences companies in 2008 represents approximately 10% of the total of 226 new securities lawsuits overall that were filed in 2008, which is comparable to the 12% that life sciences lawsuits represented of 2007 securities lawsuit filings.

That this significant of a percentage of securities litigation activity is unrelated to the credit crisis litigation wave underscores a point I have previously emphasized (for example, here), that while the subprime and credit crisis-related litigation wave is a significant factor driving securities lawsuits filing activity, it is by no means the sole factor.

The lawsuits filed against life sciences companies in 2008 involved a wide variety of allegations. The most common allegation, asserted in five of the lawsuits, is that the defendant company misrepresented the results or progress of one or more of its clinical trials. Lawsuits filed against four companies alleged financial misstatements or improper revenue recognition.

Other lawsuits involved allegations relating to disclosures about product efficacy; manufacturing deficiencies or controls; merger integration issues; misrepresentations about an officer’s credentials; intellectual property concerns; and product commercial viability.

The attributes of these companies that most frequently attract litigation is the combination of their susceptibility to disruptive events and the vulnerability of their share prices. These kinds of setbacks are an almost inevitable attribute of the regulatory and scientific environment in which these companies operate. However, these kinds of risks are also often comprehensively disclosed.

As a result, though life sciences companies are frequently sued, they have not proven to be easy targets. As I noted here and here, lawsuits filed against life sciences companies are frequently dismissed. Nevertheless, life sciences companies continue to attract the unwanted attention of the plaintiffs’ lawyers.

Securities Litigation Survey: Readers interested in securities litigation topics under the year-in- review heading will want to take a look at  the January 2009 memorandum by the Skadden law firm entitled "Securities Litigation 2008 – Noteworthy Decisions" (here). The memorandum does a particularly good job briefly summarizing the eleven decisions discussed as well as identifying the significance of the decisions.

Early Registration Deadline Approaching: The early registration deadline for the C5 D&O Liability Insurance Conference is approaching. The Conference is scheduled to take place March 24 and 25, 2009 in London. As reflected in the program brochure, which can be accessed here, the program has a number of interesting speakers and will be addressing many of the current hot topics in D&O insurance. I will be participating in a panel entitled "Current Litigation Trends in Europe and the US: Are Class Actions on the Horizon?"

The early registration deadline for this conference is February 9, 2009, after which the registration fee becomes considerably more expense.

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Over the last several years, Congress has made several different efforts to concentrate class action litigation in federal court.

For example, in the Securities Litigation Uniform Standards Act of 1998 (SLUSA), Congress amended portions of the Securities Act of 1933 and the Securities Exchange Act of 1934 to preempt class actions alleging fraud under state law in connection with the purchase or sale of securities. The Act specifically made state law securities class action lawsuits removable to federal court.

In addition, in the Class Action Fairness Act of 2005 (CAFA), Congress expanded federal court jurisdiction over class actions and mass actions. CAFA gives federal courts jurisdiction over certain class actions in which the amount in controversy exceeds $5 million and in which any of the class members is a citizen of a state different from any defendant.

But while Congress enacted these various legislative changes designed to concentrate class action litigation in federal court, Section 22(a) of the ’33 Act preserved state court jurisdiction by specifying that federal courts’ jurisdiction for ’33 Act lawsuits is “concurrent with State and Territorial courts.” Moreover, Section 22(a) specifically provides that no case “brought in any state court of competent jurisdiction shall be removed to any court of the United States.”

These jurisdictional provisions have been a part of the federal securities laws since the basic statutes’ enactment. But the legislative developments in the interim raise the question whether the subsequent enactments override the concurrent state court jurisdictional provisions in Section 22(a).

As I have previously noted (here), plaintiffs’ lawyers have chosen to file a number of subprime-related securities class action lawsuits alleging ’33 Act violations in state court. In particular, plaintiffs’ lawyers have elected to file in state court several class action lawsuits alleging misrepresentations in connection with the creation and issuance of subprime mortgage-backed securities. These lawsuits, of which by my count there have been at least four, exclusively allege violations of the ’33 Act.

One of the first of these lawsuits to be filed is the case styled as Luther v. Countrywide, the background regarding which can be found here. The plaintiffs originally filed their complaint in California Superior Court for Los Angeles County. The Luther complaint names as defendants several Countrywide subsidiaries and affiliated individuals, multiple loan trusts, and Countrywide’s offering underwriters.

The claims in the Luther lawsuit are brought on behalf of purchasers of billions of dollars of mortgage pass-through certificates issued between June 2005 and June 2007. The complaint alleges that the defendants violated Sections 11, 12 and 15 of the ’33 Act, essentially on the grounds that the risk of investing in the mortgage pass-through certificates was much greater than represented by the registration and prospectus supplements, which allegedly omitted and misstated the creditworthiness of the underlying borrowers.

The defendants, in reliance on CAFA, removed the Luther case to federal court. The plaintiffs filed a motion to remand the case to state court.

As discussed here, on February 28, 2008, Judge Mariana R. Pfaelzer granted the plaintiffs’ motion to remand the case to state court, holding that Section 22(a)’s removal bar trumps CAFA’s general grant of diversity and removal jurisdiction. The defendants appealed.

In an opinion filed on July 16, 2008 (here), the Ninth Circuit affirmed the district court, specifically holding that CAFA, “which permits in general the removal to federal court of high-dollar class actions involving diverse parties, does not supersede Section 22(a)’s specific bar against removal of cases arising under the ’33 Act.”

The defendants had argued that CAFA superseded Section 22(a)’s removal bar. But the Ninth Circuit, applying principles of statutory construction, held that while CAFA applies to a “generalized spectrum” of class actions, the ’33 Act is “the more specific statute” and that the removal bar “more precisely applies only to claims” under the ’33 Act. The Ninth Circuit concluded that the plaintiff’s initial state court class action “was not removable” and that “the motion to remand was properly granted.”

In other words, the Luther lawsuit will now go forward in state court. In light of the Ninth Circuit’s opinion, it seems likely that the various other subprime-related class action lawsuits filed against the mortgage securitizers will also eventually proceed in state court as well.

The “where” question has been resolved, but the “why” question still remains – that is, why do plaintiffs’ counsel want to proceed in state court rather than federal court?

One possibility is that plaintiffs’ counsel believes that state courts will be more sympathetic to the interests of local claimants, especially in connection with their claims against out-of-state moneyed interests. The search for a more favorable court has always driven forum shopping, and there may be some of that here. But I do wonder why plaintiffs’ securities attorneys, whose practices historically (especially in recent years) have concentrated in federal court, want to litigate in a state court with which they may be less familiar, and that will be unfamiliar with federal securities laws and securities litigation generally.

Another possible reason plaintiffs lawyers want to proceed in state court is that they want to try to circumvent the procedural requirements of the PSLRA. I have speculated elsewhere (most recently here) that plaintiffs’ counsel may try to argue that the PSLRA’s procedural requirements do not apply to a ’33 Act case in state court. The plaintiffs’ argument would be that the PSLRA, codified in Section 27(a) of the ’33 Act, provides that the PSLRA applies only to private actions “brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure.” The plaintiffs’ counsel may argue that because their suit was not brought pursuant to the Federal Rules of Civil Procedure, the PSLRA’s procedural requirements (such as the notice provisions, the discovery stay, and the lead plaintiff provision) do not apply. There could be a great deal of litigation turbulence if plaintiffs’ lawyers pursue these arguments (which seems likely).

Plaintiffs’ counsel apparently have the right to pursue ’33 Act claims in state court, which for whatever reason they seem inclined to do. There were of course a few securities lawsuits filed in state court after the enactment of the PSLRA, but my recollection is that that experiment did not go particularly well. Due to the state courts’ crowded dockets and unfamiliarity with federal securities laws, the cases bogged down. The enactment of SLUSA seemingly ended this prior flawed experiment.

Nevertheless, plaintiffs’ securities attorneys, for reasons they deem good and sufficient, are back again in state court, a place where they now seem eager to be. Some recalibration may be required to accommodate the prospect of further state court securities litigation. The plaintiffs’ lawyers’ interest in pursuing state court ’33 Act class action litigation is an unexpected development with uncertain implications. The road could be rough for all concerned.

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