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On March 24, 2015, the U.S. Supreme Court issued its opinion in Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318 (2015).  My partner Claire Davis and I are publishing a forthcoming one-year anniversary article on Omnicare.  In addition to discussing the lower courts’ application of the decision,…

In 2015, the Private Securities Litigation Reform Act* turned twenty years old.

Over my career as a securities litigator, I’ve seen both sides of the securities-litigation divide that the Reform Act created.  In the first part of my career, I witnessed the figurative skid marks in front of courthouses, as lawyers raced to the courthouse…

When a public company purchases a significant good or service, it typically seeks competitive proposals.  From coffee machines to architects, companies invite multiple vendors to bid, evaluate their proposals, and choose one based on a combination of quality and cost.  Yet companies named in a securities class action frequently fail to engage in a competitive…

In my last D&O Discourse post, “The Future of Securities Class Action Litigation,” I discussed why changes to the securities litigation defense bar are inevitable: in a nutshell, the economic structures of most of the typical securities defense firms result in defense costs that significantly exceed what is rational to spend in a…

Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs’ lawyers who file them, the defense counsel who defend them, the characteristics of the insurance that covers them, the way insurance representatives approach coverage, the government’s investigative policies – and, of course, the attitude of public companies and their…

Securities litigation headlines are dominated by mega-cases. But the majority of securities class actions are brought against smaller companies. And it appears that plaintiffs’ lawyers are filing an increasingly large number of cases against smaller companies: in Cornerstone Research’s “Securities Class Action Filings: 2014 Year in Review,” the firm concludes, among other things, that…

Why do the costs of defending securities class actions continue to increase?  Because of my writing on the subject (e.g. here and here), I’m asked about the issue a lot.  My answer has evolved from blaming biglaw economics – a combination of rates and staffing practices – to something more fundamental.  Biglaw economics is…

In 1995, public companies and their directors and officers received one of the greatest statutory gifts in the history of American corporate law:  the Private Securities Litigation Reform Act.  The Reform Act established heightened standards for pleading falsity and scienter, among other protections, to allow for dismissal before discovery in a fair percentage of cases. …

Shareholder litigation comes in waves.  There is a widespread belief that the next big wave will be shareholder derivative litigation – a shareholder’s assertion of a claim belonging to the corporation, typically brought against directors and officers, alleging corporate harm for a board’s failure to prevent corporate problems.

Derivative cases filed as tag-alongs to…

In my last post of 2013, I thought I’d share some thoughts about how public companies can better protect themselves against securities claims – practical steps companies can take to help them avoid suits, mitigate the risk if they are sued, and to defend themselves more effectively and efficiently.  I’ll share a few thoughts…