Earlier this year, the SEC announced a “Silicon Valley Initiative,” reflecting the agency’s concerns about private and pre-IPO companies that were scoring sky-high valuations in private offerings. The agency said that it is particularly focused on so-called “unicorns” – that is, private companies with valuations greater than $1 billion. Although the agency did not name any of the specific companies in which it was interested, it soon became clear that one of the companies the agency was investigating was Theranos, the start-up company whose blood-testing technology and practices have recently gained media and regulatory scrutiny. The SEC’s scrutiny of a private company’s fund-raising practices was itself noteworthy; now, in yet another notable development, the privately-held company has drawn an investor lawsuit alleging securities fraud.
Continue Reading Hedge Fund Investor Launches Fraud Lawsuit Against Theranos
Guest Post: ERISA-Regulated Benefit Plans Not “Affiliates” for Securities Class Settlement Purposes
In the settlement documents prepared in connection with securities class action settlements, the documents typically specify that certain groups are excluded from the settlement class. Among the groups typically excluded are “affiliates” of the class action defendant company. In a recent decision (here), the Second Circuit examined the question whether an ERISA-regulated benefit plan that the defendant company sponsors is an “affiliate” of the company and therefore precluded from sharing in the settlement proceeds. In the following guest post, members of the Paul Weiss law firm take a look at the Second Circuit’s decision and discuss its implications. I would like to thank the Paul Weiss attorneys for their willingness to publish their article on my site. I welcome guest post submissions from responsible parties on topics of interest to this blog’s readers. Please contact me directly if would like to submit a guest post. Here is the Paul Weiss attorney’s guest post.
Continue Reading Guest Post: ERISA-Regulated Benefit Plans Not “Affiliates” for Securities Class Settlement Purposes
Guest Post: Upcoming Appellate Decisions: Rebutting the Basic Presumption of Reliance
In its 2014 decision in Halliburton v. Erica P. John Fund, the U.S. Supreme Court reaffirmed the presumption of reliance under the fraud on the market theory. The Court also held that at defendant may rebut the presumption of reliance by showing that the alleged misrepresentation at issue did not affect the defendant company’s share price. In the following guest post, David Topol and Jennifer Williams of the Wiley Rein law firm take a look at the way that the lower courts have applied the Court’s holding in the 2014 decision, and review some pending cases that could have important implications for this way that the decision is applied in the lower courts. I would like to thank David and Jen for their willingness to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is David and Jen’s guest post.
Continue Reading Guest Post: Upcoming Appellate Decisions: Rebutting the Basic Presumption of Reliance
Seventh Circuit, Citing Delaware Precedent with Approval, Overturns Deal Lawsuit Disclosure-Only Settlement
Cornerstone Research’s recent report on merger objection lawsuit filings showed what many of us expected to see – that in the wake of Delaware Chancellor Andre Bouchard’s rejection of the disclosure only settlement in the litigation arising out of Zillow’s acquisition of Trulia, there would be a decline in the number of merger objection lawsuits filed. The report also showed that the filing decline was particularly steep in Delaware, but not as sharp elsewhere. In other words, the plaintiffs’ lawyers still active in pursuing this type of litigation increasingly are filing their merger objection lawsuits outside of Delaware. With these kinds of cases now relatively more likely to be heard outside Delaware, the question of whether or not judges in other jurisdictions will follow the lead of Delaware’s courts in rejecting disclosure only settlements takes on relatively greater importance.
Continue Reading Seventh Circuit, Citing Delaware Precedent with Approval, Overturns Deal Lawsuit Disclosure-Only Settlement
Yet Another Brazilian Company Hit with U.S. Securities Suit
As I have noted in prior posts (most recently here), in recent months a number of Brazilian companies have been hit with a wave of U.S. securities class action lawsuits. These suits have followed in the wake of corruption scandals and environmental disasters in Brazil. Now yet another Brazilian company has been hit with a U.S. securities class action lawsuit, as aircraft manufacturer Embraer and certain of its directors and officers has been sued in a securities suit following allegations that of the company’s involvement in the payment of bribes to government officials in the Dominican Republic. In addition to being the most recent securities lawsuit filed in the U.S. against a Brazilian company, the new lawsuit also represents the latest example of a securities suit arising in the wake of a bribery investigation.
Continue Reading Yet Another Brazilian Company Hit with U.S. Securities Suit
Guest Post: Second Circuit Expands the IndyMac Rule
One of the important and recurring issues under the federal securities laws is the question of whether or not American Pipe tolling applies to the statute of repose in the securities laws’ liability provisions. Specifically, the question is whether or not the three-year limitations period in Section 13 of the ’33 Act may be tolled (under a legal theory known as the American Pipe tolling doctrine) by the filing of a putative securities class action, or rather that the three-year provision cannot be tolled. As discussed here, the U.S. Supreme Court recently dismissed the cert petition in the Indy Mac case, leaving standing a Second Circuit ruling in that case that the filing of a securities class action lawsuit does not toll the ’33 Act’s statute of repose.
In the following guest post, the attorneys from the Paul Weiss law firm take a look at two recent Second Circuit decisions that raised these questions of tolling under the ’33 Act’s statute of repose. As discussed below, the authors conclude that the Second Circuit’s most recent decisions suggest that statutes of repose generally—and not simply statutes of repose established under the federal securities laws—are immune to tolling.
I would like to thank the attorneys at the Paul Weiss firm for allowing me to publish their guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is the Paul Weiss attorneys’ guest post.
Continue Reading Guest Post: Second Circuit Expands the IndyMac Rule
Cornerstone Research: First Half Securities Suit Filings at Highest Level in Years
Securities class action lawsuit filings in the first half of 2016 leapt to their highest level in years, according to a recent report from Cornerstone Research. According to the report, which is entitled “Securities Class Action Filings: 2016 Midyear Assessment,” both the number of lawsuit filings and the rate of litigation were well above long-term historical semiannual averages in the first six months of 2016. The increases are attributable in part to the increase in federal court M&A-related securities litigation, as discussed below. The report can be found here. Cornerstone Research’s July 26, 2016 press release about the report can be found here. Cornerstone Research’s analysis is largely consistent with my own review of the first half securities suit filings, which can be found here.
Continue Reading Cornerstone Research: First Half Securities Suit Filings at Highest Level in Years
Securities Class Action Lawsuit Filings Continue at Elevated Pace in the Year’s First Half
Continuing 2015’s elevated pace, the number of securities class action lawsuit filings during the first half of 2016 accrued in numbers well above both historical averages and recent levels. The first half 2016 levels puts the securities suit filing activity on pace for the most active year for securities class action lawsuit filings since 2004.
Continue Reading Securities Class Action Lawsuit Filings Continue at Elevated Pace in the Year’s First Half
Russian Trade Sanctions-Related Securities Lawsuit Dismissed
In a prior post, I noted that among the implications of the international trade sanctions is the possibility that companies affected by sanctions could face D&O claims. Among the risks the sanctions program presents is the possibility that a company dealing with sanctions-related issues could face a follow-on securities lawsuit, as investors seek to hold the company and its senior officials liable for share prices declines following disclosure of sanctions-related issues.
In the Seadrill Limited Securities Litigation, a securities class action lawsuit pending in the Southern District of New York, investors sued the company, a subsidiary, and certain of its directors and officers, for the company’s elimination of its dividend and loss of significant business with a Russian oil company subject to international sanctions following Russia’s invasion and annexation of Crimea. On June 20, 2016, in an interesting opinion (here), Southern District of New York Lorna Schofield granted the defendants’ motion to dismiss the Seadrill case. Due to the case’s factual circumstances, the opinion makes for some interesting reading. In any event, the case represents an important example of the possibilities for D&O claims arising from sanctions-related issues.
Continue Reading Russian Trade Sanctions-Related Securities Lawsuit Dismissed
Guest Post: Deeper Trends in Securities Class Actions 2006-2015
There have been a number of important developments in class action securities litigation case filings in the recent years. In the following guest post, Michael Klausner, Professor of Law, Stanford Law School, and Jason Hegland, Executive Director, Stanford Securities Litigation Analytics, using the Stanford Securities Litigation Analytics database, identify and review several of these developments. As their guest post explains, there have been a number of interesting changes with respect to the kinds of cases that are being filed, as well as with respect to who is filing them. I would like to thank Mike and Jason for their willingness to publish their guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to readers of this site. Please contact me directly if you would like to submit a guest post. Here is Mike and Jason’s guest post.
Continue Reading Guest Post: Deeper Trends in Securities Class Actions 2006-2015