One of the more distinctive developments in the capital markets in recent years has been the rise in the number of very large private companies. These companies are sometimes referred to as “unicorns,” as if they are very rare creatures — but the reality is that worldwide there over 1,230 of them.  Because the rise of so many large private companies is relatively recent, many of the legal principles and procedures relevant to these companies are just forming – giving rise to what University of Illinois Law Professor Verity Winship describes as the “gaps between private-market reality and legal structures that were designed for public companies.”

Among the “uncharted areas” is shareholder litigation; in a new paper, Professor Winship considers what shareholder litigation has meant in the context of these unicorn companies. What she found is that shareholder litigation involving these companies is rare, and that the procedural mechanisms available to investors are limited, at least by comparison to the mechanisms available to public company investors. Professor Winship describes her paper in an April 25, 2024,  Harvard Law School Forum on Corporate Governance post entitled “Unicorn Shareholder Suits” (here). The paper itself can be found here.  Continue Reading Unicorn Companies and Securities Litigation

On my beat here at The D&O Diary, I cover the liabilities of corporate directors and officers. One objection I frequently hear is that I focus too much public companies and not enough on private companies. The reason I write about public company issues more than private company concerns is that the public company world usually is more eventful. However, every now and then, something comes up involving a privately-held company that reminds all of us that plenty happens in the private company D&O world, too. The most recent example is the shareholder derivative and class action lawsuit filed last week against executives of the electronic cigarette company, Juul Labs. As discussed below, this new lawsuit highlights the exposures that private company directors and officers can face and underscores the fact that even private companies can get hit with shareholder class action lawsuits.
Continue Reading Private Company Directors and Officers Hit with Shareholder Class Action Lawsuit

WeWork may not have been able to complete its once-planned IPO, but even so it now has something that many IPO companies often experience – a shareholder class action lawsuit. On November 4, 2019, a WeWork investor filed a lawsuit in California state court on behalf the company’s minority shareholders as well as on behalf of the company itself. As discussed below, the shareholder complaint makes a number of interesting allegations and raises some interesting issues as well.
Continue Reading WeWork, SoftBank, Neumann Hit with Shareholder Lawsuit

One of the more interesting developments in the financial markets this year has been the number of so-called “unicorns” that have completed their IPOs. Among others, Uber, Lyft and Pinterest made their debut in recent weeks. Some of these companies have stumbled as they began trading, and indeed some have already been sued in securities class action lawsuits (as I noted here with respect to Lyft). Among the companies completing IPOs in recent weeks is Jumia Technologies AG, an African e-commerce platform that has been called Africa’s first unicorn, whose American Depositary Shares began trading on the NYSE on April 12, 2019. Even though Jumia’s securities have been trading barely a month, the company has been hit with a securities lawsuit, following a short-seller’s report about the company.
Continue Reading Recent African e-Commerce IPO Draws Securities Lawsuit

On March 28, 2019, amidst much fanfare, the rideshare company Lyft went public at $72 a share, raising more than $2.2 billion.  In the first trading day following the offering, the company’s share price rose 8.7 percent. However, despite the initial euphoria, Lyft’s share price then began to slump. Lyft shares closed at $58.36 on Thursday afternoon (April 18), representing a decline of nearly 20% from the company’s IPO share price. Apparently, at least one investor who purchased shares is fighting mad about the decline. On April 16, 2019 – just 13 trading days after the IPO– the shareholder filed a securities class action lawsuit against the company in California state court. A copy of the plaintiff’s complaint can be found here. An April 17, 2019 Bloomberg article about the lawsuit can be found here.
Continue Reading Well, That Didn’t Take Long: Lyft Hit with IPO-Related Securities Suit

The news late last week that London’s transport authority had stripped ride-hailing firm Uber of its ride-hire license on the grounds that it was “unfit to operate” in the U.K. capital was merely the latest blow to the company, following a string of scandals, probes, and damaging revelations. Now the company – which, despite its enormous size, is still a privately held firm — has been hit with a federal court securities class action lawsuit, the most recent instance where one of the high-flying “unicorn” companies has been hit with a securities fraud lawsuit after a decline in fortune. The new lawsuit has a number of interesting features, discussed below.
Continue Reading Though a Private Company, Uber Hit With Securities Class Action Lawsuit

TheranosEarlier 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

TheranosIn a speech last month, SEC Chair Mary Jo White signaled that the agency was going to be paying closer attention to private companies, particularly so-called “unicorns” – that is, the private venture-backed start-ups with valuations over $1 billion (as I discussed in a recent post). In her speech, White highlighted the concerns that can surround companies with these kinds of lofty valuations, noting that “the concern is whether the prestige associated with reaching a sky-high valuation fast drives companies to appear more valuable than they actually are.”   It wasn’t clear at the time exactly what the agency’s scrutiny of these private companies might mean, but recent news involving the high-flying start-up company Theranos shows what White had in mind.  The developments involving Theranos, in turn, raise the question of whether other high-flying privately held companies might also face scrutiny, as well.
Continue Reading Theranos, the SEC, and the Enforcement of the Securities Laws Against Private Companies