The U.S. Supreme Court has agreed to take up a case in which the court will be asked to address the recurring question of whether the failure to make disclosure required by Item 303 of Reg. S-K is an actionable omission under Section 10(b) and Rule 10b-5. The Court apparently agreed to take up the case due to a split between the Circuits on the question of whether or not an Item 303 violation can be actionable. Because allegations based on alleged Item 303 violations are a frequent feature of securities class action complaints, the Court’s ruling in the case could potentially be significant. A copy of the Court’s September 29, 2023, order granting the petitioners’ petition for a writ of certiorari in the cases, Macquarie Infrastructure Corporation v. Moab Partners, L.P., can be found here.Continue Reading Supreme Court to Consider Whether Item 303 Violations are Actionable under Section 10(b)
On June 30, 2023, the U.S. Supreme Court agreed to take up a case to consider the legality of the SEC’s use of in-house administrative tribunals, which the agency uses to enforce the federal securities laws. The agency sought Supreme Court consideration of a federal appellate court ruling that held the administrative courts to be unconstitutional. The case could significantly impact the way in which the agency enforces the federal securities laws. The court’s June 30, 2023 order in which the SEC’s petition for a writ of certiorari was granted can be found here.Continue Reading U.S. Supreme Court Takes Up Case Concerning the SEC’s Use of In-House Court
Earlier this week, the U.S. Supreme Court heard oral argument in the Slack case, the high-profile securities law case the Court is considering this term. In the following guest post, Joseph Gross of the Wiley firm provides a detailed overview of the legal issues in the case and summarizes the parties’ oral arguments. I would like to thank Joe for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Joe’s article.Continue Reading Guest Post: Will the Supreme Court Cut Securities Plaintiffs Some Slack?
In the same December 11, 2020 Order in which it rejected the bid by the Texas Attorney General to overturn the results of the 2020 Presidential election, the U.S. Supreme Court also agreed to take up a case involving the effort of Goldman Sachs to overturn the certification of a class in the long-running securities lawsuit. The case relates to the bank’s alleged conflicts of interest in structuring collateralized debt obligation securities before the global financial crisis. The case will require the Court to address important questions pertaining to the ability of securities lawsuit defendants opposing class certification to attempt to rebut the presumption of reliance and the extent to which the defendants in opposing class certification can rely on matter that is also relevant to merits-related issues such as materiality.
Continue Reading U.S. Supreme Court Agrees to Take Up Securities Suit Class Certification Issues
In a terse, unsigned one-sentence April 23, 2019 per curiam opinion, the U.S. States Supreme Court has just one week after oral argument dismissed the grant of certiorari in the case of Emulex Corporation v. Verjabedian as “improvidently granted.” The Court had granted cert in the case in order to address a circuit split on the question of whether or not a claimant in must plead scienter in order to establish a tender offer misrepresentation claim under Section 14(e) of the Securities Exchange Act of 1934, or whether allegations of negligence are sufficient. In the merits briefing and at oral argument, the question arose whether or not there is even a private right of action under Section 14(e) at all. As discussed below, the Court’s dismissal leaves all of these questions unaddressed. The April 23, 2019 opinion in the case can be found here.
Continue Reading Supreme Court Punts on Tender Offer Pleading Standard Case
In a June 21, 2018 decision, the U.S. Supreme Court held that the SEC’s administrative law judges (ALJs) are not merely “employees” but rather are “officers” who must be appointed to their position by the “Heads of Departments” under the Constitution’s Appointments Clause. The Court’s decision at one level represents a rather straightforward application of the Court’s existing case law regarding ALJs. However, the decision raises a number of troublesome issues for the SEC, and leaves a number of other important questions unanswered. The decision also raises a number of questions for other agencies as well. The ultimate questions in the wake of Lucia v. Securities and Exchange Commission may be whether and to what extent the SEC (and even perhaps other agencies) will continue to use administrative processes to pursue enforcement action. The Court’s opinion in the case can be found here.
Continue Reading Supreme Court’s SEC ALJ Decision Leaves Many Unanswered Questions
In a long line of cases, the U.S Supreme Court has grappled with the question of who can be held liable under the federal securities laws for fraudulent misrepresentations. Most recently, in the Janus Funds case, the Court has said that only a “maker” of a misrepresentation can be held liable in a private securities lawsuit. On June 18, 2018, the U.S. Supreme Court granted a writ of certiorari to examine whether a person who did not “make” a misrepresentation can nevertheless be held liable under the securities laws on a theory of scheme liability.
The case involves an SEC enforcement action in which the defendant, Francis Lorenzo, sent prospective investors emails at the direction of his boss and with content that he had not created. Lorenzo’s actions were held insufficient to support fraudulent statement liability because he did not “make” the misrepresentations, but Lorenzo nevertheless was held liable for the misrepresentations on a scheme liability theory. The case presents an interesting opportunity for the Court to consider the requirements to establish scheme liability and in particular to determine whether a financial misrepresentation alone is sufficient to support a scheme liability claim. The Supreme Court’s June 18, 2018 order granting the writ of certiorari can be found here.
Continue Reading Supreme Court Grants Cert in Scheme Liability Case
October 3, 2016 is the first Monday in October, and that means that on that date the U.S. Supreme Court, as it has on the first Monday of every October since 1917, will begin its new term. While the Court will begin its term this year as it traditionally has in the recent past, it will also be operating on an unusual basis. For the first time in almost 30 years, the Supreme Court will begin its new term will only eight justices.
Continue Reading First Monday in October: What to Watch in the Supreme Court’s New Term
In a January 18, 2013 order (here), the U.S. Supreme Court granted a writ of certiorari to hear the appeals of three separate petitioners in cases arising out of the Ponzi scheme of R. Allen Stanford. The petitioners are two former law firms for the Stanford International Bank and an insurance brokerage that…
Years from now, when the history of the Roberts Court is finally written, I hope that the historians will be able to explain why during the first dozen years of the 21st century, the U.S. Supreme Court seemed so eager to take up securities cases. But whatever the reason, on June 27, 2011, on…