SEC Commissioner Michael Piwowar recently said that the SEC is open to allowing companies that are going public to provide for mandatory shareholder arbitration in their corporate charters. Piwowar’s remarks have prompted a firestorm of discussion of the issue of mandatory arbitration of securities class actions, including helpful analyses by Alison Frankel and Kevin LaCroix
Be Careful What You Wish For, Part II: Would Companies Be Better Off Without the Fraud-on-the-Market Doctrine?
The villain in the fight against securities class actions is the fraud-on-the-market presumption of reliance established by the U.S. Supreme Court in 1988 in Basic Inc. v. Levinson, 485 U.S. 224 (1988). Without Basic, the thinking goes, a plaintiff could not maintain a securities class action, and without securities class actions, executives could…
3 Key Securities Litigation Developments of 2016
Following is an article I wrote for Law360, which gave me permission to republish it here:
Among securities litigators, there is no consensus about the importance of developments in securities and corporate governance litigation. For some, a Supreme Court decision is always supreme. For others, a major change in a legal standard is the most…
Are We Headed into a Perfect Storm of Securities Class Action Filings?
The history of securities litigation is marked by particular types of cases that come in waves:
- the IPO laddering cases, which involved more than 300 issuers and their underwriters;
- the Sarbanes-Oxley era “corporate scandal” cases, which involved massive litigation against Enron, WorldCom, Tyco, Adelphia, HealthSouth, and others;
- the mutual fund market timing cases;
- the stock
5 Securities Litigation Issues to Watch in 2016
Following is an article we wrote for Law360, which gave us permission to republish it here:
The coming year promises to be a pivotal one in the world of securities and corporate governance litigation. In particular, there are five developing issues we are watching that have the greatest potential to significantly increase or decrease the…
Why Are Companies and Their Directors and Officers Still Behind on Cyber Security Oversight and Disclosure?
Over the past three years, I’ve been outspoken about the need for better board oversight of cyber security, as well as the need for better cyber security disclosure. The severity of the cyber threat is so significant to companies, as well as to the nation’s economy and security, that boards have no choice but to…
Cybersecurity Securities Class Actions: A Wave or Trickle?
One of the foremost uncertainties in securities and corporate governance litigation is the extent to which cybersecurity will become a significant D&O liability issue. Although many D&O practitioners have been bracing for a wave of cybersecurity D&O matters, to date there has been only a trickle. Some have come to believe that at most, there…
Top 5 Securities and Corporate Governance Litigation Developments of 2014
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.
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…
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…