Yesterday’s Supreme Court decision in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II) may well have the lowest impact-to-fanfare ratio of any Supreme Court securities decision. Despite the social-media-fueled frenzy within the securities bar leading up to the decision, the Court’s decision will effect little change in class certification law and practice
Plaintiffs' Bar
Practical Tips for Avoiding Securities Litigation, Understanding D&O Insurance, and Selecting Defense Counsel
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…
Is the Demise of the Fraud-on-the-Market Doctrine Near? Be Careful What You Wish For
At long last, the United States Supreme Court is going to address the viability and/or prerequisites of the fraud-on-the-market presumption of reliance established by the Court in 1988 in Basic v. Levinson. Securities litigators, on both sides of the aisle, are understandably anxious, because our entire industry is about to change – either a…
Board Oversight of Cyber Security and Cyber-Security Disclosures: Answers to Some of the Key Questions
Cyber security is top of mind for companies, and cyber-security oversight is top of mind for corporate directors. I recently co-moderated a panel discussion for directors on board oversight of cyber security and cyber-security disclosures. I thought I’d share my thoughts on some of the key issues.
What are the board’s fiduciary duties in the…
Matrixx Did Not, and Could Not, Authorize Shortcuts in Reform Act Scienter Analysis, Despite Plaintiffs’ Claims to the Contrary
As I have previously written, the Sixth Circuit’s erroneous interpretation of the scienter component of the Supreme Court’s decision in Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011), is one of the biggest threats to the protections of the Private Securities Litigation Reform Act.
The resulting flawed analysis – which I …
SEC’s Shift in No-Admit-or-Deny Policy Would Create Dilemma for Defendants if Applied in Close Cases
Last Tuesday, new SEC Chairman Mary Jo White said at The Wall Street Journal’s annual CFO Network Event that the SEC “in certain cases” will seek admissions of liability as part of settlements. The statement made headlines, and for good reason: for decades, the SEC has allowed settling defendants to neither admit nor deny…
Delaware Supreme Court’s Decision in Allergan Won’t Fix the Problem of Multi-Jurisdictional Shareholder Litigation
On April 4, 2013, in the Allergan decision, the Delaware Supreme Court reversed the Court of Chancery’s ruling last year that the dismissal of a shareholder derivative action in California did not preclude other stockholders from bringing the same corporate claim in Delaware. The Delaware Supreme Court’s decision was based on a Constitutional Full Faith…
Flawed Confidential Witness Allegations: A Crucial Issue in Securities Class Action Litigation
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…
Looking Ahead: Forthcoming 2013 Securities and Corporate Governance Litigation Developments
This promises to be an eventful year in securities and corporate governance litigation. A number of looming developments have the potential to change the landscape for many years to come. This is the first of two posts – or three, if I get carried away – discussing some of these developments.
The Delaware Supreme Court’s …
Decline in Securities Class Action Filings in 2012: What It Doesn’t Mean
For most readers of this blog, it is now old news that securities class action filings were down in 2012, especially in the second half of the year – this was extensively discussed and examined over the last several weeks by Kevin LaCroix in his blog, The D&O Diary, by Cornerstone Research, and by…