M. Todd Scott

M. Todd Scott

Orrick, Herrington & Sutcliffe LLP

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Fannie and Freddie Shareholders Sue FHFA and Treasury Department Over Payment of Profits to U.S. Government

On May 28, 2015, three Fannie Mae and Freddie Mac (the “Companies”) shareholders filed a complaint in the United States District Court for the Northern District of Iowa against the Federal Housing Finance Agency (“FHFA”), its...more

6/3/2015 - Fannie Mae FHFA Freddie Mac HERA Net Worth Sweep Popular Shareholder Litigation Shareholders U.S. Treasury

For Shareholder Inspection Demands, A Purpose Isn’t “Proper” When the Issue Has Already Been Decided

As we have previously discussed in prior posts, shareholder demands to inspect confidential corporate information are being made with increased frequency, and are forcing more and more companies to grapple with their legal...more

3/25/2015 - Delaware General Corporation Law DOJ FCPA Fuchs Family Trust v Parker Drilling Inspection Rights SEC Settlement Shareholders

Ninth Circuit Applies Heightened Pleading Standards for Loss Causation

On December 16, 2014, the Ninth Circuit affirmed the U.S. District Court of Arizona’s dismissal of a Section 10(b) class action against Apollo Education Group, Inc., a for-profit education company, and several of its officers...more

12/31/2014 - Class Action Corporate Counsel Dismissals For Profit Education Loss Causation Pleading Standards

Circuits Split on When to Impute Employees’ Knowledge to Corporation for Section 10(b) Claims

One of the most significant challenges facing plaintiffs in pleading a violation of Section 10(b) of the Securities Exchange Act of 1934 is sufficiently alleging that the defendant company possessed scienter, or an “intent to...more

10/22/2014 - Compliance Fraud Imputed Knowledge Omnicare Pleading Standards SCOTUS SEC Section 10(b) Securities Exchange Act

For Now, The Broad Interpretation of “Foreign Officials” Under the FCPA Is Here to Stay

In recent years, the DOJ and SEC have significantly increased their Foreign Corrupt Practices Act (FCPA) enforcement efforts, and in the process, have successfully advocated the theory that state-owned or state-controlled...more

10/20/2014 - Compliance DOJ Enforcement Enforcement Actions FCPA Foreign Official SEC

Oklahoma Takes a Stand a Stand in the Battle Over Derivative Fee-Shifting

Back in May we discussed ATP Tour, Inc. v. Deutscher Tennis Bund a seminal Delaware Supreme Court case that upheld a non-stock corporation’s “loser pays” fee-shifting bylaw. ATP Tour held that where a Delaware corporation...more

10/1/2014 - ATP Tours Bylaws Derivative Suit Fee-Shifting Shareholder Litigation

Does Being an ‘Expert’ Make You an Expert?

Earlier this month, Judge Victor Marrero of the Southern District of New York issued his opinion certifying a class of buyers of the common stock of a company created by a Chinese reverse merger. McIntire v. China...more

9/4/2014 - Basic v Levinson China Expert Testimony Reverse Mergers

SEC Can’t Pass On Pot Stock Puffery

Corporations facing federal securities suits can sometimes avoid liability by claiming that their forward-looking statements were so vague or indefinite that they could not have affected the company’s stock price and are...more

8/8/2014 - Enforcement Enforcement Actions Fraud Professional Liability SEC Securities Act of 1933 Securities Fraud White Collar Crimes

Have Your Directors Met Their Revlon Duties? Delaware Court Dismisses Strike-Suit Allegations as Merely Cosmetic

In a virtual course on how to bring—or not bring—an M&A strike suit, on June 30, a Delaware Chancery Court dismissed all shareholder claims against a merger target and its acquirer, ending nearly two years of litigation. ...more

7/9/2014 - Board of Directors Corporate Counsel Corporate Governance Revlon Standard Shared Responsibility Rule Shareholders

You Were Wrong, But Did You Know You Were Wrong? The Supreme Court To Resolve The Circuit Split On The Pleading Standard For...

Can a securities plaintiff satisfy Section 11 of the Securities Act simply by alleging that a statement of opinion was objectively false, or must the plaintiff also allege that the speaker subjectively knew the statement was...more

3/19/2014 - Omnicare Pharmaceutical Pleading Standards SCOTUS Section 11 Securities Fraud

You Better Forum-Shop Around . . . While You Still Can

On January 31, 2014, Chevron Corporation moved to certify to the Delaware Supreme Court the question of whether exclusive forum bylaws are valid under Delaware law. Chevron filed its motion before the Honorable Jon S. Tigar...more

2/12/2014 - Forum Forum Selection Clause Forum Shopping

Back To The Drawing Board: The SEC Loses Another Insider Trading Trial

On January 7, 2014 the SEC lost an insider trading bench trial before Judge William Duffey of the U.S. District Court for the Northern District of Georgia. In a thorough opinion, Judge Duffey found the SEC’s case to be...more

1/15/2014 - Circumstantial Evidence Insider Trading SEC Whistleblowers

Pack Your Bags: SEC And DOJ To Intensify The Spotlight On The Foreign Corrupt Practices Act

Comments made by Kara N. Brockmeyer, the Securities Exchange Commission’s chief of the Foreign Corruption Practices Act (FCPA) unit, and Charles E. Duross, deputy chief of the Department of Justice’s FCPA unit, at the recent...more

11/27/2013 - Anti-Corruption Compliance DOJ Enforcement Actions FCPA SEC Travel

A Bird In The Hand Is Worth … Nothing If You Can’t Really Sell It

A pair of investment firms recently filed suit against Twitter in the Southern District of New York, alleging that Twitter had fraudulently refused to allow them to sell its private stock in advance of its much-anticipated...more

11/6/2013 - Fraud IPO Stocks Twitter

NBA Team Owner Mark Cuban “Talks Trash” After Defense Verdict

Following a defense verdict in the insider trading case brought against him by the SEC, Dallas Mavericks owner Mark Cuban has not been sitting on the bench—but rather using his blog to stay on the offensive. Since the...more

10/30/2013 - Insider Trading SEC Sports

Lookout For The SEC: After First Demanding More Admissions, The SEC Is Additionally Increasing Monetary Penalties And Giving...

After first announcing a change on June 18 of this year to demand more admissions in SEC actions, an SEC leader recently made further comments echoing that same sentiment, as well as referencing the SEC’s intended use of...more

10/8/2013 - Citigroup Civil Monetary Penalty SEC Settlement

Second Circuit To Issuers: You Need Not Disclose Every Single Asset In Your Registration Statements

That was the Second Circuit’s message to companies in a September 25, 2013 order (link) by upholding dismissal of claims against defendant Royal Bank of Scotland (“RBS”) for alleged failure to disclose enough information...more

10/1/2013 - Corporate Issuers Disclosure Requirements Issuers Registration Royal Bank of Scotland Subprime Mortgages

How Much Latitude Do Directors Have In Setting Executive Compensation?

Executive compensation decisions are core functions of a board of directors and, absent unusual circumstances, are protected by the business judgment rule. As Delaware courts have repeatedly recognized, the size and...more

9/30/2013 - Business Judgment Rule CEOs Delegation of Discretion Dodd-Frank Executive Compensation Say-on-Pay

A Tale Of Two Paychecks; Ralph Lauren Makes 1,900 Times More Than You And The SEC Thinks You Should Know

On September 18, 2013, the SEC voted to propose a new rule that would require public companies to disclose the ratio of compensation of its CEO to the median compensation of its employees. The new rule, required under...more

9/23/2013 - CEOs Disclosure Requirements Dodd-Frank Pay Ratio Ralph Lauren SEC

When Are Directors Liable For Failing To Exercise Proper Oversight?

Recently we discussed whether directors of public companies face potential liability for not preventing cyber attacks. As we discussed, the answer is generally no, because absent allegations to show a director had a...more

9/9/2013 - Breach of Duty Cyber Attacks Cybersecurity Directors Fiduciary Duty Liability Oversight Committee

A Ponzi Of A Different Color

High profile schemes perpetrated by Bernie Madoff, Allen Stanford, Nevin Shapiro, and others have brought, or at least reinforced, a general understanding of the term “Ponzi scheme” into the public lexicon. But what,...more

9/2/2013 - Ponzi Scheme Securities Fraud

Shareholder Books And Records Requests To Become More Frequent, And More Potent

As we previously detailed, a shareholder’s request for corporate books and records can raise competing concerns for the company and its directors. ...more

8/12/2013 - Board of Directors Books & Records Corporate Governance Shareholders

Does A Board Need To Put A “For Sale” Sign On The Company When Considering A Change-Of-Control Transaction?

When a board of directors decides to enter the company into a change-of-control transaction, the board is charged with the duty to act reasonably to secure the best value reasonably attainable for its shareholders....more

8/5/2013 - Acquisitions Board of Directors Change of Ownership Mergers Shareholders

How Corporate Charters Can Protect Directors From Money Damages For Acts Of Negligence

Several weeks ago we asked whether directors of public companies face potential liability for not preventing cyber attacks....more

7/12/2013 - Board of Directors Corporate Charters Corporate Governance Damages Fiduciary Duty Negligence

Does Your Director Have A Guilty Conscience? SEC To Press For More Admissions

Some of the SEC’s enforcement targets are no longer in denial, or at least they won’t be if a recent policy shift at the regulator takes hold. ...more

7/4/2013 - Admissions of Liability Directors Enforcement Mary Jo White SEC

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