General Business Securities Civil Procedure

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SDNY Refuses to Dismiss Executive’s Dodd-Frank Retaliation Claim

On August 24, 2016, the Southern District of New York denied Defendants’ motion to dismiss a Dodd-Frank whistleblower retaliation claim brought by its former co-CEO and Executive Chairman of its Board of Directors, finding...more

Third Circuit Affirms Dismissal Of Suit To Vacate FINRA Arbitration Award

This case involved an underlying arbitration before an arbitration panel operating under the Financial Industry Regulatory Authority (“FINRA”) rules, which was brought by Judith and Kenneth Goldman against their financial...more

Federal Court Issues Trial Ruling in Section 36(b) “Manager of Managers” Lawsuit: AXA Advisory and Administrative Fees Held Not to...

The U.S. District Court for the District of New Jersey issued its post-trial ruling on August 25, 2016 in Sivolella v. AXA Equitable Life Insurance Company—the first Section 36(b) trial decision since 2009. The Court...more

Do Not Pass Go: FERC Administrative Proceedings Remain First Stop for Market Manipulation Claims under the Natural Gas Act

Fraud and energy market manipulation have remained priorities of the Federal Energy Regulatory Commission’s Office of Enforcement (OE) over the past several years. The agency has ramped up its investigative efforts, reporting...more

Baker v Sadiq C.A. No. 9464-VCL (Del. Ch. Aug. 16, 2016) (Laster, V.C.)

In this letter opinion, the Court of Chancery awarded $650,000 in attorney’s fees to counsel for the minority stockholders of NavSeeker, Inc. (“NavSeeker”), resolving a dispute regarding how a fee award should be determined...more

Taming the Bull Rider: Chancery Court Reining in Mootness Fee Awards in Merger Litigation

Last month, the Delaware Chancery Court drastically reduced – from $275,000 to $50,000 – a mootness fee award requested by plaintiffs’ counsel in a lawsuit challenging the merger between PayPal and Xoom Corporation, finding...more

SEC Granted Reversal, Remand and Jury Trial from the Ninth Circuit

On August 31, 2016, the SEC caught a break when a Ninth Circuit panel reversed Judge Manuel L. Real’s bench trial verdict for defendants, former corporate officers of the now-defunct Basin Water, Inc., finding that the SEC...more

In Eagerly Awaited Ruling, AXA Beats Excessive Fee Claim

The fund manager was victorious in the first court decision to come from a group of complaints filed over the last several years against manager-of-manager models. Introduction - Following a 25-day bench trial, the...more

Second Circuit Court Of Appeals Allows Federal Courts To “Look Through” § 10 FAA Petition To Determine Federal Jurisdiction

The United States Court of Appeals for the Second Circuit has reversed its own precedent to allow federal courts examining petitions under § 10 of the FAA to “look through” the petition to examine if there is federal...more

Ninth Circuit Permits SEC to Assert Standalone Claim for False Sarbanes-Oxley Certification and Confirms Disgorgement Remedy...

In Securities & Exchange Commission v. Jensen, No. 14-55221, 2016 WL 4537377 (9th Cir. Aug. 31, 2016), the United States Court of Appeals for the Ninth Circuit broke new ground by providing the Securities & Exchange...more

Tennessee Securities Division Ramps Up Enforcement

The Securities Division of Tennessee’s Department of Commerce and Industry has increased its enforcement activity during 2016. The recent actions include: Final Administrative Orders: Clifton Alexander and HugeROI.com...more

Ninth Circuit Clarifies Whose “Misconduct” Triggers SOX 304 Disgorgement But Not What Constitutes “Misconduct”

Section 304 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. § 7243) requires CEOs and CFOs to repay bonuses, incentive- and equity-based compensation, and profits realized on the sale of securities received in the 12 months...more

The Fifth Circuit Rules Findings from SEC Civil Investigation are Admissible Evidence at Trial

The Fifth Circuit Court of Appeals appears to have handed white collar defendants a new tool for trial. In United States v. Gluk, — F.3d —-, 2016 WL 4150901 (5th Cir. Aug. 4, 2016), the court held that a little-noticed...more

Cy Pres Standard Dispute Settled With Reasonable Approximation

The District Court for the Southern District of New York recently addressed whether the “next best” or “reasonable approximation” standard should apply when the court evaluates proposed cy pres designations in class action...more

Court of Appeal Confirms Judges May Weigh Evidence on Leave Motions in Secondary Market Securities Class Actions

Summary In Mask v. Silvercorp Metals Inc., the Court of Appeal for Ontario upheld a decision refusing leave to commence an action for secondary market misrepresentation under section 138.8 of the Ontario Securities Act (the...more

Delaware Court of Chancery Addresses the “Cleansing Effect” of Stockholder Approval In Post-Closing M&A Damages Actions

In two recent decisions, City of Miami General Employees’ & Sanitation Employees’ Retirement Trust v. Comstock, C.A. No. 9980-CB, 2016 Del. Ch. LEXIS 133 (Del. Ch. Aug. 24, 2016) (Bouchard, C.) (“Comstock”), and Larkin v....more

No Repose for Debate on Applicability of American Pipe Tolling

In its seminal 1974 American Pipe opinion, the Supreme Court held that the commencement of a class action tolls the applicable statutes of limitation as to all putative class members who would have been parties had the class...more

Seventh Circuit Strikes Again – Rejects Settlement In Shareholder Deal Litigation

In yet another strongly-worded opinion, the Seventh Circuit rejected the proposed settlement of a Walgreens’ shareholder strike suit in which the class obtained “worthless” supplemental disclosures but class counsel received...more

Cheyne Capital v. Deutsche Trustee Company: another securitisation dispute on contractual interpretation

Hot on the heels of a number of recent cases on the interpretation of securitisation documents comes Cheyne Capital (Management) UK (LLP) v. Deutsche Trustee Company Limited and another. In this case the Court of Appeal...more

Circuits Split on “Look-Through” Jurisdiction Over Arbitration Awards

Within weeks, the Second and Third Circuits reached opposite conclusions over federal jurisdiction to confirm, modify or vacate arbitration awards.  The Second Circuit now allows courts to look through the face of the...more

Ninth Circuit Holds That SOX Disgorgement of Incentive Compensation Does Not Depend on Executives’ Own Misconduct

The U.S. Court of Appeals for the Ninth Circuit held today that the Sarbanes-Oxley Act’s disgorgement provision – which requires disgorgement of certain CEO and CFO compensation when an issuer restates its financial...more

Agreement To Arbitrate “Any Disputes” Doesn’t Reach Derivative Claims

Corn v. Superior Court, 2016 Cal. App. Unpub. LEXIS 6182 (Cal. App. 2d Dist. Aug. 22, 2016) is a case about the meaning of one sentence in a settlement agreement consisting of just seven words – “The Parties agree to...more

Five Key Takeaways from Key Energy’s SEC FCPA Settlement

The SEC, last week, announced its $5 million settlement with Key Energy. As always, FCPA settlements contain important examples of enforcement priorities and policies. Key Energy’s recent settlement is an example of the...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

New York Appellate Court Reverse Lower Court, Allows RMBS Action to Proceed Against Morgan Stanley

On August 11, 2016, the First Department of the Appellate Division of the Supreme Court of the State of New York reversed the lower court, allowing RMBS Trustee U.S. Bank to proceed with claims against Morgan Stanley in...more

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