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Category Archives: Confidential Witnesses

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Top 5 Securities and Corporate Governance Litigation Developments of 2014

Posted in 2nd Circuit, 3rd Circuit, 5th Circuit, 6th Circuit, 7th Circuit, 9th Circuit, Class Certification, Confidential Witnesses, Corporate Governance, Delaware Courts, Fraud-on-the-Market Doctrine, Litigation Reforms, M&A Litigation, Plaintiffs' Bar, SEC, SEC Enforcement, Section 220, Securities Class Action, Shareholder Derivative Action, Statements of Opinion, Supreme Court

This year will be remembered as the year of the Super Bowl of securities litigation, Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”), 134 S. Ct. 2398 (2014), the case that finally gave the Supreme Court the opportunity to overrule the fraud-on-the-market presumption of reliance, established in 1988 in Basic v. Levinson. Yet,… Continue Reading

Falsity is Fundamental: The Case for Emphasizing Arguments against Falsity

Posted in 2nd Circuit, 7th Circuit, 9th Circuit, Confidential Witnesses, Falsity Analysis, Litigation Strategy, Motions to Dismiss, Safe Harbor, Scienter Analysis, Securities Class Action, Statements of Opinion

In defending a securities class action, a motion to dismiss is almost automatic, and in virtually all cases, it makes good strategic sense.  In most cases, there are only four main arguments: The complaint hasn’t pleaded a false or misleading statement The challenged statements are protected by the Safe Harbor for forward-looking statements The challenged… Continue Reading

Flawed Confidential Witness Allegations: A Crucial Issue in Securities Class Action Litigation

Posted in 11th Circuit, 2nd Circuit, 7th Circuit, Confidential Witnesses, Litigation Reforms, Motions to Dismiss, Plaintiffs' Bar, Securities Class Action

The recurring and pervasive problem of flawed confidential witness (“CW”) allegations tops my list of the key issues in securities class action litigation.*  I don’t mean just notorious situations such as those recently at issue in the Lockheed, SunTrust, and Boeing securities class actions – which I discussed in an earlier post and discuss further… Continue Reading

Confidential Witness Hearings in SunTrust and Lockheed Martin Demonstrate Need for Reforms

Posted in 11th Circuit, 2nd Circuit, Confidential Witnesses, Litigation Reforms, Plaintiffs' Bar, Securities Class Action

Plaintiffs’ lawyers are facing intense judicial scrutiny of problems with their use of “confidential witnesses” (“CWs”) in the Lockheed Martin and SunTrust securities class actions.  Courts have recently addressed similar CW problems in two other high-profile securities class actions, Sears Holdings (affirmed by the Second Circuit) and Boeing. Courts need to scrutinize CWs more closely in deciding… Continue Reading