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Who Is Winning the Securities Class Action War—Plaintiffs or Defendants? (Part III)

This is the third of a three-part post that analyzes why plaintiffs are winning the securities class action war and what defendants can do about it....more

Who is Winning the Securities Class Action War—Plaintiffs or Defendants? (Part II)

This is the second of a three-part post evaluating who is winning the securities class action war. Part I explained that this war is not just a scorecard of wins and losses, but rather a fight for strategic...more

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...more

What Explains Plaintiffs’ Post-Morrison Preference for the Third Circuit in Securities Filings Involving Overseas Parties or...

In monitoring securities cases filed around the country, I like to keep an eye out for regional trends. Historically, plaintiffs’ counsel respected the company defendant’s forum, filing in the federal court closest to the...more

Myths & Misconceptions of Biotech Securities Claims: An Analysis of Motion to Dismiss Results (2005-2016)

There is a common life cycle for Directors and Officers Liability for a publicly-traded biotechnology company bringing its first drug or device to the market. In the early stages, whether pre-clinical or Phase 1, there is...more

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...more

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...more

3 Key Securities Litigation Developments of 2016

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...more

Lessons Learned in London

Earlier this month, I spent a week in the birthplace of D&O insurance, London. In addition to moderating a panel at Advisen’s European Executive Risks Insights Conference, I met with many energetic and talented D&O insurance...more

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...more

5 Wishes for Securities Litigation Defense: Early Damages Analysis and Discovery

The fifth of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is to move securities class action damages expert reports and discovery ahead of fact discovery. This simple change would allow the...more

Imposing Section 10(b) Liability Against Defrauded Corporation Reads Scienter Element out of Statute—An Analysis of In re...

From time to time, D&O Developments will take a closer look at an important issue decided in an appellate opinion. In this post, I analyze In re ChinaCast Education Corp. Securities Litigation, 809 F.3d 471 (9th Cir. 2015),...more

The Decline of the Disclosure-Only Settlement: Will We Regret What We Wished For?

In combination with the Delaware Court of Chancery’s decision in In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016), Judge Posner’s blistering opinion In re Walgreen Company Stockholder Litigation, 2016...more

5 Wishes for Securities Litigation Defense: Greater Director Involvement in Securities Litigation Defense and D&O Insurance

One of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is greater involvement by boards of directors in decisions concerning D&O insurance and the defense of securities litigation, including...more

5 Wishes for Securities Litigation Defense: A Defense-Counsel Interview Process in All Cases

One of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is to require an interview process for the selection of defense counsel in all cases. When a public company purchases a significant good or...more

Omnicare, Inc., One Year Later: Its Salutary Impact on Securities-Fraud Class Actions in the Lower Federal Courts

Just over a year ago, on March 24, 2015, the U.S. Supreme Court issued its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund. Omnicare held that a statement of opinion is only false...more

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...more

5 Wishes for Securities Litigation Defense: Greater Insurer Involvement in Defense-Counsel Selection and Strategy

One of my “5 Wishes for Securities Litigation Defense” last month was for greater D&O insurer involvement in securities class action defense. This simple step would have extensive benefits for public companies and their...more

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, or facing any...more

Why I’m So Passionate about Omnicare

On March 24, 2015, the U.S. Supreme Court issued its opinion in Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318 (2015). My partner Claire Davis and I are publishing a forthcoming...more

5 Securities Litigation Issues to Watch in 2016

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...more

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...more

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...more

Securities Class Action Defense Counsel Selection: An Interview Process is Essential

When a public company purchases a significant good or service, it typically seeks competitive proposals. From coffee machines to architects, companies invite multiple vendors to bid, evaluate their proposals, and choose one...more

Securities Claims Based on Item 303 of Regulation S-K: It Just Doesn’t Matter

In January 2015, the Second Circuit held in Stratte-McClure v. Morgan Stanley, 776 F.3d 94 (2nd Cir. 2015), that Item 303 of Regulation S-K imposes a duty to disclose for purposes of Section 10(b), meaning that the omission...more

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