Bill Lerach gave the best motion to dismiss oral argument I’ve ever seen. Using a stock-price chart with key events and allegations plotted along the alleged class period, he told the complaint’s story with a wooden pointer and his superb narrative skill. Far too often, plaintiffs’ and defense lawyers get bogged down in the nitty-gritty
Omnicare
D&O Discourse is 11 Years Old
I started the D&O Discourse blog in October 2012 to generate discussion among the repeat players in securities and corporate governance litigation: insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel. While I share opinions from a defense-counsel perspective, I call it like I see it.
Here are five of my favorite posts – well…
Putting All Our Eggs in One Basket: Effective Securities Class Action Defense Must Look Beyond the Motion to Dismiss
The Reform Act was passed by the Contract-with-America Congress to address its perception that securities class actions were reflexive, lawyer-driven litigation that often asserted weak claims based on little more than a stock drop, and relied on post-litigation discovery, rather than pre-litigation investigation, to sort the validity of the claims.
The Reform Act’s centerpiece is…
Analysis of Biotech Securities Class Action Motion to Dismiss Decisions, 2005-2022
Five years ago, we surveyed a decade’s worth of federal district court decisions on motions to dismiss securities claims brought against development-stage biotech companies to answer an important question: are these cases more likely to survive a motion to dismiss—and therefore riskier to insure against—than other securities class actions, as D&O insurers have traditionally assumed?…
The State of Securities Litigation: Good Communication is Key to Improving Securities Litigation Outcomes
I am evangelical about the importance of defense counsel working collegially with D&O insurers and brokers – the repeat players in securities and governance litigation – in the defense of litigation against our common clients. In the big picture, this type of collegiality is the key to putting “litigation” back in “securities litigation” and to…
Is the Reform Act’s Safe Harbor Truly Safe?
The most frequent question I’ve been asked about the SEC’s proposed SPAC rules concerns the provision that would make unavailable the Private Securities Litigation Reform Act’s safe harbor for forward-looking statements with respect to de-SPAC transactions: would this change increase the risk that SPACs and de-SPACs face in securities litigation?
Not much. Public companies understandably…
Three Key Takeaways from Second Circuit’s Latest Section 10(b) Securities Class-Action Decision
This week, my team and I again had the honor of writing for Washington Legal Foundation’s Legal Backgrounders series.
In this article, Zach Taylor, Gen York-Erwin, and I discussed the Second Circuit’s recent decision in Arkansas Pub. Emps. Ret. Sys. v. Bristol-Myers Squibb Co., 28 F.4th 343 (2d Cir. 2022).
Here is…
Securities and Governance Litigation Risks from COVID-19
The history of securities litigation is marked by waves: from the IPO laddering cases, to the Sarbanes-Oxley era corporate scandal cases, to stock options backdating, to the credit crisis, to the Chinese reverse-merger cases, to event-driven/lawsuit blueprint cases, certain types of cases have predominated at different times.
Are we entering a wave of COVID-19…
Omnicare, Five Years Later: Strategies for Securities Defense Lawyers’ More Effective Use of the Decision
The chance to help Washington Legal Foundation with a U.S. Supreme Court amicus brief in the Omnicare case was an honor. Statements of opinion are ubiquitous in corporate communications on issues as diverse as asset valuations, strength of current performance, risk assessments, product quality, loss reserves, and progress toward corporate goals. Many of these opinions…
Is Blue Apron a Silver Bullet?
In Salzberg, et al. v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020) (“Blue Apron”), the Delaware Supreme Court upheld the facial validity of federal-forum provisions (FFPs) in a Delaware corporation’s certificate of incorporation requiring actions arising under the Securities Act of 1933 to be filed exclusively in federal court. Here is Kevin LaCroix’s…