During the more than six years since the U.S. Supreme Court issued its opinion in Morrison v National Australia Bank, the lower courts have worked out a host of issues about how Morrison applies in a variety of circumstances. One issue that has continued to percolate is the question of how the Morrison decision applies to non-U.S. companies that have American Depository Receipts (ADRs) trading over- the-counter (OTC) in the U.S.
These issues arose again the U.S. securities class action lawsuit that Volkswagen ADR investors filed against the company and related defendants based on allegations involving the company’s recent high-profile vehicle emissions scandal. The Volkswagen defendants argued in reliance on Morrison that the U.S. securities laws do not apply to the OTC transactions in the company’s ADRs. In an interesting January 4, 2017 opinion (here), Northern District of California Judge Charles R. Breyer held that the U.S. securities laws do indeed apply to over-the-counter transactions in the U.S. of Volkswagen’s sponsored Level 1 ADRs.
Continue Reading Court Holds U.S. Securities Laws Apply to OTC Transactions in Volkswagen’s Sponsored ADRs
Largely driven by a surge in the number of federal court merger objection class action lawsuits, the number of securities class action lawsuit filings during 2016 reached record high levels. The number of filings in 2016 accelerated as the year increased, with a significantly greater number of filings in the year’s second half, compared to the number of filings in the year’s first half.
According to the company’s December 23, 2016 press release (
In yet another securities suit following on news of a bribery or corruption investigation, and in the latest securities suit involving a global mining company, on December 12, 2016, a plaintiff shareholder filed a securities class action lawsuit in the Southern District of New York against the world’s second-biggest mining company, U.K.-based Rio Tinto plc, and certain of its current and former officers. The complaint arises out of the company’s recent announcement of a corruption investigation involving its operations in the 
It is a truth universally acknowledged that a public company D&O insurance practice requires knowledge of the federal securities laws. And so like many others in our field, I have had to back-and- fill a working knowledge of the securities laws. Due to the way I acquired this knowledge, there are some bare spots – in particular, I sometimes am hamstrung because I lack the perspective that would allow me to see how it all fits together. So every now and then, I need to step back and reengage with the basics. All too often I find myself relying on the indifferent result of a Google search for this gap-filling. I have never really found a good, manageable source to use for caulking those securities law gaps. Until now, that is.
In an interesting post on his D&O Discourse blog earlier this fall (
On November 14, 2016, in an interesting lawsuit that brings together a number of recent securities litigation trends, a noteholder of Samarco Mineração, S.A. filed a purported securities class action lawsuit in the Southern District of New York against the company and its CEO on behalf of investors who purchased the company’s debt securities. Samarco, a joint venture of mining giants Vale, S.A., and BHP Billiton, owned and operated the Fundão tailings dam that collapsed on November 5, 2015, in what has been called Brazil’s worst-ever environmental disaster. There are a number of interesting features to this new lawsuit, beyond just its relationship to the dam collapse disaster. A copy of the plaintiff’s November 14, 2016 complaint can be found 
For many years, I have been 
One of the characteristic securities litigation patterns for many years has been that lawsuit filings tend to come in distinctive waves, in which specific sectors get hit with a series of securities suits or companies engaging in certain types of conduct or business practices attract securities litigation. The lawsuits arising out of the dot-com crash and the options backdating scandal are examples of these kinds of litigation patterns. Over the last several weeks, a different industry sector pattern has emerged. The poultry production industry, which recently has been the target of private antitrust litigation, has now been hit with a string of follow-on securities class action lawsuits as well. These lawsuits represent one of the more distinctive securities litigation filing patterns this year.