Jonathan Richman

Jonathan Richman

Proskauer Rose LLP

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California Federal Court Holds That U.S. Securities Laws Do Not Apply to Unsponsored, Unlisted ADRs

The U.S. District Court for the Central District of California held on May 20, 2016 that the federal securities laws do not apply to U.S. transactions in unlisted, unsponsored American Depositary Receipts (ADRs) for a foreign...more

5/25/2016 - Accounting Fraud Application of Foreign Laws Comity Foreign Issuers Forum Non Conveniens Investors Japan Morrison v National Australia Bank Motion to Dismiss Over-the-Counter Sales Putative Class Actions Toshiba

Supreme Court Clarifies Jurisdiction Under Securities Exchange Act

On May 16, 2016, the U.S. Supreme Court ruled that the provision of the Securities Exchange Act of 1934 granting federal district courts exclusive jurisdiction over suits brought to enforce the Exchange Act is subject to the...more

5/17/2016 - 28 USC 1331 Exclusive Jurisdiction Federal Jurisdiction Financial Institutions Merrill Lynch Merrill Lynch v Manning Regulation SHO SCOTUS Securities Exchange Act

N.Y. Court of Appeals Adopts Business Judgment Rule, with Conditions, for Going-Private Mergers

The New York Court of Appeals has followed Delaware in holding that the business-judgment rule applies to going-private mergers as long as certain shareholder-protective measures are met. The court’s May 5, 2016 decision in...more

5/6/2016 - Bad Faith Breach of Duty Business Judgment Rule DE Supreme Court Fairness Standard Fiduciary Duty Going-Private Transactions Mergers Minority Shareholders Shareholder Litigation

Second Circuit: Intent to Harm Is Not Required for Criminal Conviction Under Investment Advisers Act

On May 4, 2016, the U.S. Court of Appeals for the Second Circuit affirmed the fraud conviction of a registered investment adviser and held that proof of intent to harm is not an element of a criminal conviction under section...more

5/5/2016 - Conflicts of Interest Convictions Criminal Prosecution Fraud Intent Investment Advisers Act of 1940 Jury Instructions Mens Rea Registered Investment Advisors Scienter Willful Misconduct

Cornerstone Research Reports “Surge” in Securities Class-Action Settlements in 2015

Cornerstone Research’s latest annual report discloses that the number and average size of securities class-action settlements increased in 2015 as compared to 2014. Total settlement dollars rose to more than $3 billion –...more

4/4/2016 - Class Action Corporate Counsel Damages SEC Securities Litigation Settlements Young Lawyers

Second Circuit Adopts Actual-Knowledge Standard for MD&A Disclosures

The Second Circuit held yesterday that Item 303 of SEC Regulation S-K requires issuers to disclose only those trends, events, or uncertainties about which the issuer has actual knowledge, rather than those matters about which...more

3/31/2016 - Actual or Constructive Knowledge Class Action Corporate Issuers Disclosure Requirements Financial Statements Puffery Regulation S-K SEC Securities Violations

Second Circuit Addresses Statutes of Repose and Tolling in Securities Class Actions

The Second Circuit has clarified the applicable statutes of repose for securities-fraud and proxy-related claims under §§ 9(f), 14(a), and 18(a) of the Securities Exchange Act. The court’s March 17, 2016 decision in DeKalb...more

3/21/2016 - Class Action Proxy Statements PSLRA Sarbanes-Oxley Securities Exchange Act Securities Fraud Statute of Repose Tolling

Petrobras Rulings on SLUSA Preemption and Brazilian-Law Damages

In re Petrobras Securities Litigation continues to produce interesting developments – this time on SLUSA preemption and Brazilian law. On March 12, 2016, the U.S. District Court for the Southern District of New York held...more

3/18/2016 - Actual Damages Application of Foreign Laws Brazil Failure To State A Claim Petrobras Preemption SLUSA

The Netherlands Returns as a Collective-Settlement Forum

Ageas (the former Fortis) and several organizations representing Fortis shareholders announced yesterday a EUR 1.204 billion settlement of shareholder claims under the Dutch Act on Collective Settlement of Mass Claims (the...more

3/15/2016 - Class Action Corporate Counsel EU International Litigation Jurisdiction Morrison v National Australia Bank Netherlands Opt-Outs SCOTUS Settlement Shareholder Litigation

Second Circuit Reinforces Liability Standard in Securities Cases Based on Statements of Opinion

The U.S. Court of Appeals for the Second Circuit reinforced the stringency of the new standard for liability in securities cases arising from allegedly misleading statements of opinion. Construing the Supreme Court's 2015...more

3/9/2016 - Corporate Issuers Investors Material Misrepresentation Misleading Statements Omissions Omnicare v Laborers District Council SCOTUS Securities Litigation Statement of Opinion

U.S. Court Certifies Classes in Petrobras Securities Litigation

The United States District Court for the Southern District of New York yesterday certified two classes of investors who had purchased Petrobras securities on U.S. exchanges or in other U.S. transactions. The February 2, 2016...more

2/4/2016 - Ascertainable Class Class Action Class Certification Corporate Counsel Morrison v National Australia Bank Petrobras Res Judicata SCOTUS Securities Litigation

Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of “Increasingly Vigilant” Scrutiny

The Delaware Court of Chancery dealt another blow to disclosure-only settlements of merger litigation and refused to approve a proposed class-action settlement arising from Zillow, Inc.'s acquisition of Trulia, Inc. ...more

1/25/2016 - Attorney's Fees Class Action Corporate Counsel Disclosure-Based Settlements Mergers Preliminary Injunctions Shareholder Litigation Stock Deals Supplemental Disclosures Trulia Zillow

Second Circuit Rejects Riley Appeal over Personal-Benefit Standard for Insider Trading

The Second Circuit last week affirmed the conviction of a former corporate executive on charges of insider trading. The court’s unpublished decision on January 14 in United States v. Riley held that the Government had...more

1/20/2016 - Insider Trading Jury Instructions Material Nonpublic Information Personal Benefit Quid Pro Quo Tippees US v Newman

Supreme Court to Review Insider-Trading Decision on Personal Benefit

On January 19, 2016, the Supreme Court agreed to review the Court of Appeals for the Ninth Circuit's decision concerning the "personal benefit" required to establish a claim for insider trading. The grant of certiorari in...more

1/20/2016 - Certiorari Dirks v SEC Fiduciary Duty Insider Trading Material Nonpublic Information Personal Benefit SCOTUS Split of Authority Tippees

U.S. Securities Laws Not Applicable to Certain Purchases of Petrobras Debt Securities

The narrowing of the federal securities laws’ applicability to non-U.S. transactions continues. On December 21, 2015, the U.S. District Court for the Southern District of New York held in In re Petrobras Securities Litigation...more

12/23/2015 - Debt Securities Morrison v National Australia Bank Petrobras SCOTUS Securities Fraud Securities Litigation Transfer of Title

2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space...more

11/25/2015 - China Cybersecurity EU Gift Tax Hedge Funds Hong Kong Internships Popular Private Equity Private Funds Registered Investment Advisors SEC UK Volcker Rule Whistleblowers

Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders

The Second Circuit held last week that a borrower did not waive the attorney-client privilege by providing documents to a consortium of lender banks that shared a common legal interest with the borrower in the tax treatment...more

11/18/2015 - Attorney-Client Privilege Audits Common-Interest Privilege Corporate Restructuring IRS Work-Product Doctrine

Ninth Circuit Rejects Adverse-Interest Exception in Fraud-on-the Market Securities Class Actions

Last week, the Ninth Circuit issued a decision that could affect analyses of corporate scienter in securities class actions. The court reversed the dismissal of In re ChinaCast Education Corporation Securities Litigation and...more

10/28/2015 - Apparent Authority Board of Directors CEOs Class Action Corporate Counsel Corporate Officers Exceptions Fraud-on-the-Market Professional Misconduct Scienter Securities Fraud Shareholder Litigation

Southern District of Florida Case Challenging Bylaw Requiring Minimum Stake to Sue Dismissed

As we have previously discussed, there has been a growing trend of corporations’ adopting various types of bylaws to define the bounds of shareholder litigation. These include forum-selection bylaws and fee-shifting bylaws...more

10/27/2015 - Board of Directors Bylaws Class Action Corporate Governance Derivative Suit Duty of Loyalty Fee-Shifting Forum Selection Mootness Motion to Dismiss Motion To Intervene Shareholder Litigation Voluntary Dismissals

Supreme Court Denies Review of Second Circuit Insider-Trading Case

On October 5, 2015, the Supreme Court refused to grant review of the Second Circuit’s restrictive insider-trading decision in United States v. Newman. The Government, through the Solicitor General, had asked the Supreme...more

10/6/2015 - Breach of Duty Confidential Information Fiduciary Duty Insider Trading Material Nonpublic Information Personal Benefit Petition for Writ of Certiorari Quid Pro Quo Solicitor General Tippees

D.C. Circuit Joins Seventh Circuit in Rejecting Court Challenges to Pending SEC Administrative Enforcement Proceedings

The U.S. Court of Appeals for the District of Columbia Circuit held today that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings. A...more

9/30/2015 - Administrative Proceedings Article III De Novo Standard of Review Due Process Enforcement Equal Protection Judicial Review Non-Delegation Doctrine Preemption SEC Separation of Powers Standing Subject Matter Jurisdiction

U.S. Court Dismisses Foreign Residents’ Foreign-Law Claims Arising from Securities Purchased on U.S. Markets

Much ink has been spilled since the Supreme Court’s 2010 decision in Morrison v. National Australia Bank about the federal securities laws’ applicability to foreign transactions in foreign securities.  But what happens when...more

9/29/2015 - Application of Foreign Laws BP Canada Class Action Corporate Counsel Cross-Border Transactions Foreign Nationals Forum Non Conveniens Morrison v National Australia Bank NYSE SCOTUS Securities Litigation

SEC Proposes Amendments to Rules Governing Administrative Proceedings

The Securities and Exchange Commission appears to be hearing the music. In response to the many voices that have expressed dissatisfaction with the procedures used in SEC administrative hearings, the SEC today issued proposed...more

9/25/2015 - Administrative Appeals Administrative Hearings Administrative Proceedings Amended Regulation Comment Period Depositions Discovery Federal Rules of Civil Procedure Notice and Comment Proposed Regulation SEC

SEC Again Rejects Constitutional Challenges to Administrative Enforcement Proceedings

The Securities and Exchange Commission again rejected constitutional challenges to the use of administrative enforcement proceedings presided over by Administrative Law Judges (“ALJs”). The Commission’s September 17, 2015...more

9/24/2015 - Administrative Proceedings ALJ Appointments Clause Article II Corporate Counsel Enforcement Actions Equal Protection Jurisdiction PCAOB Registered Investment Advisors SEC

A Farewell to Alms? Peppercorn Settlements of M&A Litigation

An apparently frustrated Delaware Vice Chancellor recently approved yet another disclosure-only settlement of yet another challenge to a merger, but seemed intent on signaling that such proposed class-action settlements might...more

9/21/2015 - Attorney's Fees Class Action Conflicts of Interest Estimated Value Disclosures Mergers Proxy Statements Purchase Price Settlement Shareholder Litigation Supplemental Disclosures

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