In a recent post (here), David Kaplan of the Saxena White P.A. law firm and Lane Arnold, a Senior Director – Legal at the University of Texas/Texas A&M Investment Management Company (UTIMCO), discussed the Catch-22 in which the court’s rulings in the Valeant securities class action opt-out cases had put prospective securities suit opt-outs. In the following guest post, Kaplan and Hani Farah, also of the Saxena White law firm, update the prior post and discuss the June 16, 2021 Third Circuit decision in the Valeant case (here), in which the appellate court overturned the lower court’s rulings and rejected the “Forfeiture Rule” that put the opt-outs into the Catch-22. I would like to thank Dave and Hani for allowing me to publish their article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s reader. Please contact me directly of you would like to submit a guest post. Here is Dave and Hani’s guest post.
Continue Reading Guest Post: Update on The Valeant Appeal: Third Circuit Rejects The “Forfeiture Rule” for Opt-Outs
statute of repose
Guest Post: Protecting Securities Fraud Recoveries: Investors Face a Catch-22
One of the most important aspects of class action litigation in the U.S. is the right of individuals to “opt out” of the class. However, as discussed in the following guest post from David Kaplan and Lane Arnold, a series of recent developments has significantly complicated the decision-making framework for prospective opt outs. Kaplan is a Director at Saxena White P.A. and co-head of the firm’s Direct Action practice. Arnold is a Senior Director – Legal at the University of Texas/Texas A&M Investment Management Company (UTIMCO). This article was originally written and published in the April edition of The NAPPA Report. I would like to thank Dave and Lane for allowing me 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 Dave and Lane’s article.
Continue Reading Guest Post: Protecting Securities Fraud Recoveries: Investors Face a Catch-22
Do Opt-Out Settlements of $217.5 Million Foreshadow the Future of Securities Litigation?
In June 2017 when the U.S. Supreme Court entered its opinion in California Public Employees Retirement System v. ANZ Securities, in which the Court affirmed the Second Circuit and held that Securities Act of 1933’s three-year statute of repose is not subject to equitable tolling, one question that was asked was whether the Court’s ruling would encourage more securities suit class members to file protective actions before the statutory period expired in order to preserve their right to opt-out of the class action.
Recent developments in a securities class action involving VEREIT, a real estate investment trust and successor-in-interest to the troubled American Realty Capital Properties, in which VEREIT has entered three opt-out settlements with large institutional investors totaling a whopping $217.5 million, suggest that the concerns raised following the ANZ Securities decision may be coming to pass. These developments may also portend a very complicated future for U.S. securities class action litigation, at least in the most serious cases. Alison Frankel’s October 29, 2018 post on her On the Case blog about the VEREIT opt-out settlements can be found here.
Continue Reading Do Opt-Out Settlements of $217.5 Million Foreshadow the Future of Securities Litigation?
Supreme Court Agrees to Hear Securities Act Statute of Repose Tolling Question
The U.S. Supreme Court has agreed to take up a case arising out of the credit crisis-era collapse of the Lehman Brothers investment bank, in order to decide whether or not, under principles known as the “American Pipe doctrine,” the filing of a securities class action lawsuit tolls the Securities Act’s statute of repose. In its 1974 American Pipe decision, the Court held that the filing of a class action suit tolls the applicable statute of limitations; in this latest case, the Court must resolve a split between the federal circuit courts and decide whether a class action lawsuit filing also tolls the applicable statute of repose. Though the case involves seemingly arcane issue, it could have very important practical implications, particularly with respect with respect to the timing of class members’ decisions whether or not to opt-out of the class. The U.S. Supreme Court’s January 13, 2017 order granting the petition of the plaintiff for a writ of certiorari in California Public Employees’ Retirement System v. ANZ Securitites Inc. can be found here.
Continue Reading Supreme Court Agrees to Hear Securities Act Statute of Repose Tolling Question
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
Sixth Circuit, in Agreement with Second Circuit, Holds American Pipe Tolling Doesn’t Apply to Statutes of Repose
Among the important legal issues that arise in connection with securities class action litigation is the question of impact of the filing of a complaint on the running of the statutes of limitation and the statutes of repose. In analyzing statute of limitations issues, one of the tools that the courts have used is the so-called American Pipe tolling doctrine, named after the U.S. Supreme Court’s 1974 decision in American Pipe and Construction Co. v. Utah. A recurring question has been whether or not American Pipe Tolling applies to statutes of repose. In the following guest post, attorneys from the Paul Weiss law firm take a look a recent Sixth Circuit decision holding that American Pipe tolling doctrine does not apply to the federal securities laws’ statutes of repose.
Continue Reading Sixth Circuit, in Agreement with Second Circuit, Holds American Pipe Tolling Doesn’t Apply to Statutes of Repose
Supreme Court Will Not Consider the Securities Act Statute of Repose Issue in the Indy Mac Case After All
As I had noted on this blog (here), one of the important securities law cases on the U.S. Supreme Court’s docket for the upcoming term involved the failed IndyMac bank. The Court had granted cert in the case to decide whether the three-year limitations period in Section 13 of the ’33 Act may …
Guest Post: Class Certification Timing and the IndyMac MBS Case in the Supreme Court
As I discussed in a prior post (here), in March 2014 the U.S. Supreme Court agreed to take up the IndyMac case in order to consider whether the filing of a class action lawsuit tolls the statute of repose under the Securities Act (by operation of so-called “American Pipe” tolling) or whether the …
Some Things to Think About While We Await the Supreme Court’s Decision in Halliburton
Supreme Court to Decide Securities Act Statute of Repose Issue in IndyMac MBS Case
The U.S. Supreme Court has added yet another lawsuit to its growing list of securities law cases by agreeing to take up the IndyMac MBS securities suit, to consider whether the filing of a class action lawsuit tolls the statute of repose under the Securities Act (by operation of so-called “American Pipe” tolling) …