Securities Litigation

Articles

2019

United States v. Connolly: District Court Scrutinizes Longtime Corporate Practices for Internal Investigations
By Randall R. Lee and Michael J. Berkovits – August 26, 2019
The decision marks the first time that a court has held that when a corporation works closely with regulators, the corporation is effectively acting as an agent of the government.

2019 Midyear Update on Senior and Vulnerable Investor Legislation
By Lawrence E. Fenster and Daniel Strashun – August 26, 2019
States are increasingly providing firms with more effective options for fighting financial exploitation of senior and vulnerable investors.

New Regulation Best Interest Changes the Standard of Care for Brokers. But by How Much?
By Daniel Nathan, Trace Schmeltz, Daniel Streim, and Nicholas Peterson – August 26, 2019
“Reg BI” enhances the standard of broker-dealer conduct beyond prior suitability requirements.

Six Things to Know about Arbitrating Diminished Capacity Issues in FINRA Customer Cases
By Josh Jones – March 6, 2019
Unique situations arise when litigating competency issues in the FINRA forum.

Is It Your First Time Having a Client under Investigation by FINRA?
By Joseph S. Simms and Andrew T. Illig – March 6, 2019
Here’s what you need to know, from receipt of an 8210 letter to the hearing in the enforcement action.

The U.S. Supreme Court Case That Could Significantly Expand Civil Liability under the Federal Securities Laws
By Jessica Ortiz, Caleb Hayes-Deats, and Michelle Parthum – March 6, 2019
Private plaintiffs could become able to pursue claims in D.C., Alabama, Florida, and Georgia that would be legally insufficient elsewhere.

FINRA’s New Report on Broker-Dealer Cybersecurity Practices
By John E. Clabby – March 6, 2019
The report's key points and some observations from the author’s practice.

2018

A Guide to Settlement Plans of Allocation in Securities Class Actions
By Stevie Thurin – November 15, 2018
How to efficiently and effectively review a plan of allocation.

Challenging Loss Causation after First Solar
By Jeanne Detch – November 15, 2018
Defenses may focus on pleading standards, especially particularity and plausibility, or on directness principles.

A Question of Privilege: The Still Unsettled Law Surrounding FINRA's Form U5 Uniform Termination Notice
By Beth Howland – November 15, 2018
Does qualified or absolute privilege apply to Form U5 disclosures?

Extraordinary Circumstances MAE Allow a Buyer to Break a Bad Deal
By Albert Manwaring, IV – November 15, 2018
This is the first time that the Delaware Court of Chancery has permitted a buyer to terminate a merger agreement based on a "material adverse effect" on the seller's business.

Cryptocurrencies Demystified and the SEC’s Regulatory Stance
By Seoyoung Kim and Sumon Mazumdar – August 25, 2018
Most initial coin offerings are securities according to the SEC, but they may not necessarily remain securities.

How to Structure Securities Class Action Settlements to Obtain Court Approval and Global Peace
By Niki Mendoza – August 25, 2018
Defining the settlement class, outlining the release, evaluating due diligence, crafting a blow provision, and agreeing on timing.

Protecting Venture Capital Firms Against Securities Litigation
By Stephen L. Brodsky – August 25, 2018
Why it is nearly always appropriate to move to dismiss the claims.

After Kokesh, Does the SEC Have a New Time Limit for Claims Seeking an Officer or Director Bar?
By Gabriel K. Gillett, Howard S. Suskin, and Adam G. Unikowsky – August 25, 2018
It remains to be seen whether courts will find that employment and officer or director bars are punitive and apply section 2462 to SEC claims seeking such injunctive relief.

Lucia v. SEC—ALJs Are “Officers” of the United States Who Must Be Appointed under the Appointments Clause
By Robert H. Cox – August 25, 2018
One implication is that hundreds of new hearings may need to be held, and there are others.

Are You in Compliance? Municipal Advisor Registration Obligations
By Regina P. Martorana, A. Katherine Curtis, and Natasha S. Cooper – July 10, 2018
What constitutes qualified "advice" under the rule, what is a "municipal entity," and who is an obligated person?

Issues and Strategies for Arbitrating in the FINRA Forum
By Sandra D. Grannum – July 10, 2018
Treat your arbitrator selection as you would jury selection.

SEC Private Equity Enforcement: A More Aggressive Approach
By Andrew J. Lichtman and Howard S. Suskin – July 10, 2018
The SEC may be more inclined to bring breach of fiduciary duty or fraud claims where private equity advisors fail to disclose improper fee arrangements.

The Evolution of FINRA’s Customer Dispute Expungement Process
By W. Preston Martin – July 10, 2018
Why expungement relief is tougher than ever before.

Two New FINRA Rules for the Protection of Senior Investors
By John E. Clabby and Michael A. Gross – July 10, 2018
The changes call for proactive steps to protect seniors and other vulnerable customers from financial exploitation.

2017

How to Estimate Potential Damages Exposure in Securities Class Actions Using Claims Rate Data
By Catherine J. Galley, Erin E. McGlogan, and Pierrick Morel – November 9, 2017
Data from two cases show the extent to which aggregate damages estimates can exceed approved damages claims.

The Department of Labor’s Fiduciary Rule Is Alive and Well
By Sandra D. Grannum, Fred Reish, Joshua Waldbeser, and Jamie Helman – November 9, 2017
The rule has changed the obligations of financial institutions and professionals dealing with individual retirement accounts.

How Did Many Issues Arise Out of One?: Leidos v. Indiana Public Retirement System
By Matthew P. Allen, Daniel Nathan, and Caitlin Sikes – November 9, 2017
The case addresses more than whether an issuer’s failure to disclose information required by Item 303 constitutes an actionable fraudulent omission.

Ten Recent Delaware Merger and Acquisition Cases Applying Corwin
By Albert H. Manwaring IV, Albert J. Carroll, William M. Lafferty, and Peter Adams – May 24, 2017
Learn how stockholder approval insulates directors and officers from post-closing fiduciary duty claims under the landmark 2015 decision.

The Top 5 Disputes Private Equity Firms Want to Avoid in 2017
By Jessie M. Gabriel – May 24, 2017
What you can expect to hear from the SEC and private parties and how managers can minimize their exposure.

The ETE-Williams Failed Deal
By Elizabeth Brandon – May 24, 2017
A reminder about how proper allocation of risk in deal terms affects litigation outcomes.

Trial Prep 101: Tips on What to Think About, What to Focus on, How to Behave, and What to Wear
By Joseph S. Simms – May 24, 2017
If you prepare properly, trial work can be the most fulfilling aspect of practicing law as a litigator.

A Statutory Solution to Insider Trading?
By Jed S. Rakoff – February 6, 2017
A statute directed at making sure that investors in the stock market cannot rely in any way on nonpublic information may be the way to go.

FINRA Update: Task Force Recommendations and Rule Changes
By Daniel R. Korb Jr. – February 6, 2017
A summary of the key recommendations to enhance the efficiency, transparency, and fairness of the dispute resolution system.

An Update on Excessive Fee Litigation under the Investment Company Act
By Eben P. Colby, David S. Clancy, and Aaron T. Morris – February 6, 2017
Will the current wave of litigation be as unsuccessful as the previous ones?

FINRA Update: Another Busy Year for the Financial Industry Regulatory Authority
By Joshua D. Jones and Christy Boardman – February 6, 2017
The authority was active again in 2016, in working to enhance its arbitration and mediation forums.

2016

Did the Supreme Court's Omnicare Decision Create a Distinction Without a Difference?
By Aaron T. Morris – June 23, 2016
The Court's distinction between a misstatement claim and an omission claim is tenuous.

Will Securities Antitrust Cases Invite More Objections Because of the Complexity of Their Distribution Plans?
By Terry McMahon, Joel D. Rothman, and Peter M. Saparoff – June 23, 2016
Objections in a recent case could signify that class members will start to examine distribution plans more closely.

Securities Fraud Class Actions: A Practical Approach to Your Initial Case Assessment
By Jessie M. Gabriel and Sumon Mazumdar – June 23, 2016
Four issues that may be more important to your client than your knowledge of Basic v. Levinson and Halliburton I and II.

From Aeroflex to Trulia: A Seismic Shift
By Peter Adams, Jeffrey Kaban, and Jeffrey Walker – June 15, 2016
A discussion of the Delaware Chancery Court's recent jurisprudence on disclosure-only settlements in deal litigation.

The Increasing Application of Antitrust Claims to Securities Transactions
By Peter M. Saparoff, Robert G. Kidwell, Joel D. Rothman, and Kevin C. Mortimer – February 25, 2016
There is potential for high-value settlements and high-stakes litigation.

Emerging Concerns About Risk Tolerance and Suitability
By Tyler D. Nunnally – February 25, 2016
These two things have not fallen off FINRA's radar.

Circuit Split over Whistleblower Protections
By Matthew P. Allen – February 25, 2016
Important questions about Dodd-Frank and the SEC's reach.

Securities 101: A Circuit Split in the Standard for Pleading Loss Causation in Securities Fraud Cases
By Jonathan Schwartz – February 25, 2016
How the split came to be and why the Supreme Court should resolve it.

How to Use Analytics and Predictive Coding as Securities Litigators
By Gareth T. Evans and Goutam U. Jois – February 25, 2016
A review of the substantial benefits of using these tools to assist attorney review.

Municipal Bond Pricing, Part II: What Trade Data Reveal—or Not
By Pamela W. Peterson – February 25, 2016
The second in a two-part series examines the use of EMMA trade data in establishing fair pricing and the problems that arise when trying to interpret the data.

2015

Municipal Bond Pricing, Part I: Fair Pricing
By Pamela W. Peterson – December 9, 2015
The first in a two-part series examines the current standards for establishing fair prices, including identifying a market price for a security trade.

Class Action Tolling of the Securities Act's Statute of Repose: Resolving the Circuit Split
By Eric S. Pettit and Jeffrey M. Hammer – December 9, 2015
At least five Supreme Court justices might conclude that the three-year cut-off in section 13 is not subject to tolling.

The Duality of the U.S. Supreme Court's Janus Decision
By Dayrel S. Sewell and Amulya Appalaraju – December 9, 2015
Different courts have come to disparate conclusions with respect to its application.

D.C. Circuit Clarifies that SEC Need Not Show Market Impact in Manipulation Cases
By Dayrel S. Sewell and Amulya Appalaraju – December 9, 2015
A road map to how the commission will evaluate trading activity to prove intent in manipulation cases in future administrative actions.

The Reliance Element in U.S. and Canadian Securities Class Actions
By James K. Goldfarb, Sumon Mazumdar, Usman M. Sheikh, and Sarah Woods – September 9, 2015
Two countries separated by a common element.

Event Studies Using Contemporaneous Forward-Looking Information
By Aaron Dolgoff and Tiago Duarte-Silva – September 9, 2015
Learn a novel way to implement this statistical model that more readily incorporates investors' forward-looking views.

Private Placement Securities Litigation
By Peter M. Saparoff, John F. Nucci, and Joel D. Rothman – September 9, 2015
Be aware of the key rules and regulations governing this area of securities law.

FINRA Update: Public Arbitrator Limitations, Adjournment, Task Force, and More
By Joshua D. Jones – September 9, 2015
Practitioners should take note of changes to rules and regulations affecting arbitration practice.

Price Impact: The Battle of Experts and Burden of Proof after Halliburton II
By Jessie M. Gabriel – September 9, 2015
We are now getting our first glimpse at how district courts are resolving the questions left open by the Supreme Court.

"Loser Pays" and Federal Preemption
By John C. Coffee, Jr. – June 9, 2015
Why does Delaware's proposed legislation only partially overrule the ATP Tour decision?

ATP Tour and Delaware's Proposed Legislation: The Investor's Perspective
By Jeff Mahoney and Andrew Droste – June 9, 2015
Learn about the undesirable effects of and possible remedies to this important case.

Fee-Shifting after ATP Tour
By George C. Aguilar and Michael J. Nicoud – June 9, 2015
Formerly a mere challenge, shareholder derivative litigation is now tantamount to climbing Everest.

Changes in Accounting for Revenue Recognition, Part 1
By Marc B. Sherman, Monica K. Loseman, and Meghan Cardell – June 9, 2015
Read about the impact on registrants and the SEC.

Omnicare: Old and New Standards for Section 11 Opinion Liability
By Ryan E. Blair and Daniel J. Teimouri – June 9, 2015
Did the Supreme Court's approach declare an absolute "winner"?

The Top 10 Obstacles to Litigating Securities Fraud Claims: Part II
By Peter M. Saparoff and Joel D. Rothman – February 24, 2015
The second of two parts on how to win cases under the Securities Act and Securities Exchange Act.

Meaningful Limits on Director Compensation
By Thomas Welk and Peter Adams – February 24, 2015
The Delaware Court of Chancery has created a new legal standard for this controversial issue.

The Second Circuit Raises the Bar for Government Insider Trading Prosecutions
By Grant Fondo and Jessica Adams – February 24, 2015
The business community can expect prosecutors to pause before bringing the next high-profile insider trading case.

The Global Financial Crisis and Reinterpreting Lessons from History
By Sumon Mazumdar and Nikolai Caswell – February 24, 2015
Learn why the conventional wisdom that banks skirted the rules may not be accurate.

Courts Split on SEC Forms 4 for the Truth of Their Contents on Motions to Dismiss
By Som P. Dalal and Howard S. Suskin – February 24, 2015
To date, no federal circuit court has squarely addressed this issue.

FINRA and Regulatory Notice 14-40 Requirements
By Dominick F. Evangelista, Regina Pepe Martorana, and Heather Murphy – February 24, 2015
Firms are to explicitly advise parties to settlement and confidentiality agreements that they can initiate communications with regulators.

2014

Corporate Criminal Liability for Insider Trading
By Howard J. Kaplan – December 4, 2014
When will the Department of Justice pursue corporations for criminal behavior?

Dispelling E-Discovery Myths in Internal and Government Investigations
By Amy Hinzmann – December 4, 2014
Learn how to execute a high-volume e-discovery project.

The Top 10 Obstacles to Litigating Securities Fraud Claims: Part I
By Peter M. Saparoff and Joel D. Rothman – December 4, 2014
Learn how to win cases under the Securities Act and Securities Exchange Act.

A Review of Trados and Its Impact
By Juan E. Monteverde – March 20, 2014
So far, the decision has not had great influence on the entire fairness standard that many predicted.

The Puzzle and Promise of Bitcoin
By Alexander Aganin, Julia Brighton, George Gigounas, Victoria Lazear, and Isabelle Ord – March 20, 2014
Why are investors excited by an innovation that is similar to and more volatile than traditional currencies?

Testing and Attacking Confidential Witness Allegations at an Early Stage
By John D. Pernick and Ryan D. Nassau – March 20, 2014
Recent cases address CW allegations and the procedural devices defendants have used to discredit them.

Foreign Law Securities Fraud Claims in U.S. Courts after Morrison
By Matthew L. Mustokoff and Margaret E. Onasch – March 20, 2014
Despite the 2010 landmark case, there is still a role for the common law in the vindication of investor rights.

FIRREA Threatens to Add to Government's Financial Crisis Arsenal
By James K. Goldfarb and James Dombach – January 3, 2014
The act's new, potentially broad reach is in the early stages of evolution.

Navigating Insurance Minefields in SEC Enforcement-Action Settlements
By Eric G. Barber and Charles W. Mulaney – January 3, 2014
Two recent shifts will test even state-of-the-art directors' and officers' policies.

The Ambiguity of the Investment Company Act Section 36(b)
By Matthew Bowie – January 3, 2014
The language has been called "a lesson in the art of studied ambiguity in drafting of statutes."

The New Statute of Limitations Battle Post-Gabelli
By Mauro M. Wolfe and Melissa S. Geller – January 3, 2014
The defense bar faces a new battleground.

2013

Rebutting the Fraud-on-the-Market Theory
By Peter M. Saparoff, Alec J. Zadek, and Bradford Hillman – July 16, 2013
Lessons learned from Gamco Investors, Inc. v. Vivendi.

The Evolving Landscape of Cybersecurity Disclosures
By Will Daugherty – July 16, 2013
Two types of companies remain: those that have been hacked and those that don't know they've been hacked.

Rule 10b-5 Damages at the Trial Stage
By Matthew L. Mustokoff and Margaret E. Onasch – July 16, 2013
The Southern District of New York provides needed direction in upholding a jury award under section 10(b) of the SEA.

Delaware M&A Litigation Case Law Update: 2011 & 2012, Part 1
By Randall Baron and Maxwell Huffman – July 16, 2013
The first in a two-part series examining recent cases that expand on and clarify existing doctrines.

Meeting SEC and FINRA Expectations about Remediation
By Jonny Frank – March 11, 2013
Avoiding sanctions helps cut costs, improve efficiency, and safeguard assets.

Litigating Customer Claims Outside the Firm-Client Relationship
By Sandra D. Grannum and Joshua D. Jones – March 11, 2013
Courts analyze FINRA rules in arbitration between firms and clients.

M&A Shareholder Suits: A Call for Enhanced Scrutiny of Claims
By Koji F. Fukumura and Peter M. Adams – March 11, 2013
Growth in shareholder lawsuits has exploded since 2007.

Emerging Trends in Say-on-Pay Disclosure
By Juan E. Monteverde, Ross A. Appel, and Emily C. Komlossy – March 11, 2013
Say-on-pay proxy suits to be determined based on materiality on the merits.

Proxy Season Shakedown: A New Wave of Suits Challenging Compensation Disclosures
By Koji F. Fukumura, Jessica Valenzuela Santamaria, and Peter M. Adams – March 11, 2013
Public companies face a dilemma with proxy class-action suits.