Securities Civil Procedure

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Post-Newman Reality: Investigations Involving Unwitting “Tips” to Close Friends and Relatives Will Continue

Earlier this week, the United States Supreme Court declined to hear the federal government’s appeal of the ruling by the Court of Appeals for the Second Circuit in U.S. v. Newman. This leaves intact the Second Circuit’s quid...more

Wrongful Trading: Robin Hood’s not-so Merry Men

Brooks and another v Armstrong and another [2015] EWHC 2289 (Ch) 0 - In a rare judgment considering wrongful trading in detail, the memorably-named “Robin Hood” case considers at which point the directors ought to have...more

Fraud Vitiated Special-Committee Process in Dole Merger

In a self-interested transaction between a company and its controlling stockholder, the operative standard of judicial review under Delaware law is the most rigorous: entire fairness standard of review. To obtain the least...more

District Court Rules That Smartphone Passcodes Are Testimonial; Protected by Fifth Amendment

In Securities and Exchange Commission v. Huang, the district court held that the Fifth Amendment protected two former employees against having to disclose their personal passcodes for company-issued smartphones to government...more

Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015) (Strine, C.J.)

In this opinion affirming the Court of Chancery’s dismissal of a stockholder challenge to a merger, the Delaware Supreme Court held that the approval of the merger by a fully informed, disinterested stockholder majority...more

Inside the Courts: An Update From Skadden Securities Litigators - September 2015 / Volume 7 / Issue 3

This issue of Inside the Courts, Skadden’s securities litigation newsletter, includes summaries and associated court opinions of selected cases principally decided between May 2015 and August 2015. The cases address...more

Business Litigation Report - September 2015

Alleging Fraud in a Financial Crisis: The Second Circuit Articulates a Less Stringent Pleading Standard for Loss Causation: Loss causation has emerged as a central obstacle to post-financial-crisis fraud cases. The loss...more

Orrick's Financial Industry Week in Review

SEC Proposes to Amend Rules Governing Its Administrative Proceedings - On September 24, the U.S. Securities and Exchange Commission (the "SEC") proposed to amend rules governing its administrative proceedings. Key...more

Financial Services Quarterly Report - Third Quarter 2015: Recent Developments in U.S. “Excessive Fee” Litigation

The U.S. mutual fund industry is poised to see significant developments in the ongoing wave of Section 36(b) “excessive fee” litigation. Days apart in August, the Seventh Circuit Court of Appeals affirmed the grant of summary...more

Insider Trading, Newman And Der Prozess

The U.S. Supreme Court’s denial of review in U.S. v. Newman, 773 F.3d 438 (2014) yesterday inspired the following very short tale: Joseph K. knew that he had done nothing wrong, but, one morning, he was arrested.  Joseph K....more

M&A Update: Fully Informed Vote of Disinterested Stockholders Results in Business Judgment Rule Protection in Post-Closing Review...

In an October 2, 2015 decision, Corwin, et al. v. KKR Financial Holdings LLC., et al., the Delaware Supreme Court clarified that once a merger closes, as long as it has been approved by a fully informed vote of the...more

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

CLIENT ALERT: Delaware Supreme Court Finds That Fully Informed Stockholder Vote Approving Merger Invoked Business Judgment Rule

Corwin v. KKR Financial Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015). In this opinion affirming the Court of Chancery’s dismissal of a purported class action challenging an acquisition transaction, the Delaware...more

DC Circuit: No Jurisdiction For Suits Re SEC Forum Selection Choice

Suits challenging the SEC’s forum selection decisions continue to proliferate. As the trend has unfolded the Commission posted a memo on its website discussing the issue of forum selection and has proposed modifications to...more

A Review of Recent Whistleblower Developments

Second Circuit Splits from Fifth Circuit on Whistleblower SEC Reporting Obligations On September 10, 2015, the Second Circuit in Berman v. Neo@Ogilvy LLC, 2015 U.S. App. LEXIS 16071 (2d Cir. 2015), ruled that...more

September 2015: Appellate Update

Postscript to the U.S. Supreme Court’s October 2014 Term. The Supreme Court of the United States completed its October 2014 term in June, having decided a number of matters of wide public interest. Among the most notable was...more

Conflicts Minerals Quagmire to Continue as En Banc Rehearing Requested

Both the SEC, the loser in the most recent conflict minerals rehearing decision, and Amnesty International, an intervenor on the losing rehearing side, have asked for an en banc rehearing on the recent rehearing of the...more

Securities and Exchange Commission Sets Schedule for Rulemaking on Revenue Transparency

On October 2, the Securities and Exchange Commission (“SEC”) filed a schedule with the U.S. District Court for the District of Massachusetts providing details as to when the agency will seek to issue a final rule on revenue...more

Getting Hammered: California Trial Court Finds for E*Trade in Long-Running Misappropriation Case Where Plaintiff Destroyed the...

In a fifteen-year tale of how not to protect your emerging company’s trade secrets when dealing with the big fish, on September 16, 2015, a California trial court denied a company’s bid for royalties for technology...more

September 2015: White Collar Litigation Update

Recent Developments in Insider Trading Law. For the last 30 years, the seminal insider trading case discussing tipper/tippee liability has been the Supreme Court’s decision in Dirks v. SEC, 463 U.S. 646 (1983). In Dirks, the...more

"Inside the Courts: Sweeping Changes Proposed to the Federal Rules of Civil Procedure"

Significant amendments to the Federal Rules of Civil Procedure submitted to Congress in April 2015 could change discovery practices in securities litigation before the end of this year. Absent legislation to reject, modify or...more

District Court Denies Class Certification in Excessive Fee Case Against Service Provider

The plaintiffs, three plan participants, filed their lawsuit in 2012 and purported to assert claims on behalf of a class of all plans serviced by the defendants, affiliated entities that provided services to the plans and/or...more

"SLUSA in the Age of Madoff"

Litigation arising out of Bernard Madoff's Ponzi scheme has generated multiple legal developments, including new case law regarding the Securities Litigation Uniform Standards Act of 1998 (SLUSA). SLUSA provides a powerful...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

Federal District Court Addresses Measure of Damages in ERISA Breach of Fiduciary Duty Case

Fiduciaries of two defined contribution retirement plans sponsored by the same employer (the “Plans”) sued the Plans’ former investment manager for breach of ERISA fiduciary duties and state law violations in connection with...more

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