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
Safe Harbor
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?…
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…
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…
D&O Discourse is Back!
Hi, everyone:
When I moved to BakerHostetler to lead its firmwide Securities and Governance Litigation Team, I decided to take a break from publishing D&O Discourse — the blog I started in 2012 to provide in-depth opinion on key issues of law and practice in the world of securities and corporate governance litigation. That…
Who is Winning the Securities Class Action War—Plaintiffs or Defendants?
The securities class action war is about far more than the height of the pleading hurdles plaintiffs must clear, the scorecard of motions to dismiss won and lost, or median settlement amounts. It is a fight for strategic positioning—about achieving a system of securities litigation that sets up one side or the other to win…
Be Careful What You Wish For, Part I: Does the Reform Act Need Reforming?
The history of securities and corporate governance litigation is full of wishes about the law that we later regret (or will), or are happy were not granted. Many of these are not obvious—and some will surprise people. From certain case-by-case tactical decisions such as establishment of special litigation committees, to the (failed) attempt to abolish…
5 Wishes for Securities Litigation Defense: Effective Use of the Supreme Court’s Omnicare Decision
In this installment of the D&O Discourse series “5 Wishes for Securities Litigation Defense,” we discuss the third of five changes that would significantly improve securities litigation defense: to make the Supreme Court’s Omnicare decision a primary tool in the defense of securities class actions.
As a reminder, in Omnicare, Inc. v. Laborers…
5 Wishes for Securities Litigation Defense
I am committed to helping shape a system for securities litigation defense that helps directors and officers get through securities litigation safely and efficiently, without losing their serenity or dignity, and without facing any real risk of paying any personal funds.
But we are actually moving in the opposite direction of this goal, and unless…
Reform Act Report Card: The Private Securities Litigation Reform Act, 20 Years Later
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…