Securities Civil Procedure

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The Second Circuit Previews Issues for the Supreme Court Decision in Omnicare

In a preview of the issues raised in Omnicare, Inc. v. The Laborers District Council Construction, No. 13-435 (discussed here and here), the Second Circuit in Kaess v. Deutsche Bank AG, No. 13-2364 (2d Cir. July 16, 2014)...more

This Week In Securities Litigation

The Second Circuit upheld SEC Rule 10b-5-2 which defines certain types of relationships as the predicate for insider trading. In reaching its conclusion the Court rejected an argument that an insider trading claim must be...more

Profits Do Not Always Equal Disgorgement

Judge Scheindlin of the Southern District of New York recently rejected the SEC’s attempt to seek disgorgement of almost $500,000,000 from Samuel Wyly and Donald R. Miller Jr., the Independent Executor of the Will and Estate...more

SEC Request For O&D Bar Denied

A frequently used remedy in Commission enforcement actions is the officer and director bar. A permanent bar has the very harsh effect of precluding the person from being an officer or director of any public company. That, of...more

Be Careful Where You Whistle While You Work: Courts Impose Limits on Dodd-Frank's Protection for FCPA Whistleblowers

The Dodd-Frank Wall Street Reform and Consumer Protection Act was heralded as providing whistle-blowing employees protection from retaliation by their employers. In Liu v. Siemens AG, handed down last week, the Second Circuit...more

District Court Considers Prior SEC Complaint Evidence to Establish Scienter Under PSLRA

The US District Court for the Southern District of New York recently denied a defendant’s motion to dismiss a securities fraud class action, accepting as sufficient factual allegations of scienter that were drawn from a...more

Delaware Court of Chancery Dismisses Derivative Suit Brought by Expired Trust

The Delaware Court of Chancery recently held that the trustee of an expired trust does not have capacity to pursue a derivative suit unless authorized by state law, or in the trust instrument. In April 2009, shareholders of...more

No “Loos” Causation From Mere Announcement Of Internal Investigation

Securities fraud actions are often filed on the heels of an announcement of an internal or SEC investigation. A recent Ninth Circuit decision, Loos v. Immersion Corp., may make it easier for company executives to sleep at...more

Amnesty International Continues to Push for En Banc Rehearing in Conflict Minerals Case

Amnesty International has filed a supplemental brief which continues to advocate for a rehearing en banc in the conflict minerals case. The argument is this: American Meat Institute v. U.S. Department of Agriculture...more

Defeating Class Certification: Halliburton II Ruling Impacts Securities Class Action Issues

In its June 23, 2014 opinion in Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”), the United States Supreme Court addressed two securities class action issues: 1. It affirmed the validity of the...more

Delaware Supreme Court Permits Stockholders to Overcome Corporation’s Attorney-Client Privilege for “Good Cause”

On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a...more

Divided Fourth Circuit Panel Rules On Burden of Proving Loss Causation in ERISA Fiduciary Breach Case

That was the sentiment expressed in a blistering dissent by Fourth Circuit Judge J. Harvie Wilkinson in the latest ruling in a lawsuit challenging the decision by the fiduicaries of the RJR 401(k) plan to liquidate two stock...more

Second Circuit Rejects Extraterritorial Application of Dodd-Frank’s Whistleblower Anti-Retaliation Provision

On August 14, the United States Court of Appeals for the Second Circuit became the first U.S. appellate court to weigh in on the extraterritorial application of the whistleblower provisions of the Dodd-Frank Wall Street...more

District Court Confirms Caremark Applies to Audit Committee Oversight of Internal Controls

The U.S. District Court for the Northern District of California recently granted a motion to dismiss a derivative action in which the plaintiff alleged that the directors of VeriFone Systems, Inc. breached fiduciary duties...more

So Much for Bright-Line Tests on Extraterritorial Reach of U.S. Securities Laws?

In its landmark 2010 decision in Morrison v. National Australia Bank, the Supreme Court articulated what seemed to be a bright-line test for determining the extent to which the U.S. securities laws apply to transactions with...more

Second Circuit Holds Dodd-Frank Whistleblower Provision Does Not Apply Extraterritorially

Last week, in Liu v. Siemens, AG, the Second Circuit held that the Dodd-Frank Act’s whistleblower retaliation provision (15 U.S.C. 78u-6(h)(1)) does not apply extraterritorially, in the first Second Circuit decision to...more

Orrick's Financial Industry Week in Review - August 18, 2014

FHFA Seeks Input on Single Security Structure for Fannie Mae and Freddie Mac - On August 12, FHFA published a Request for Input on the proposed structure for a Single Security that would be issued and guaranteed by...more

Second Circuit Holds That Dodd-Frank Act Does Not Protect Whistleblower Outside U.S. Territory

Thursday's post on the SEC’s whistleblower program discussed among other topics the question of whether the Dodd-Frank Act protects employee whistleblowers from retaliation by their employers where the employees only raise...more

Corporate and Financial Weekly Digest - Volume IX, Issue 32

In this issue: - SEC’s Office of Investor Education and Advocacy Releases Alert on Identifying Fraudulent Private Placements - ICE Futures U.S. Issues Amendments to EFRP Rule and FAQs - Consumer Financial...more

Second Circuit Rejects Definitively and Specifically Standard But Upholds Dismissal of SOX Whistleblower Complaint in Nielsen v....

Last week, the Second Circuit upheld a district court’s dismissal of a plaintiff’s Sarbanes-Oxley (“SOX”) whistleblower claim – but not before rejecting the “definitively and specifically” standard on which the district...more

Fee Award Nixed After Client Abandons Case

In a neat, short opinion, the Delaware Supreme Court dealt with a situation that the chief justice characterized as "Kafkaesque" at oral argument and "unusual" in the written opinion. In Crothall v. Zimmerman, No. 608, 2013...more

10th Circuit Relies On Earnings Release and Compliance with Regulation S-K to Reject Claim of Material Omissions in Public...

In United Food and Commercial Workers Union Local 880 Pension Fund v. Chesapeake Energy Corporation, the U.S. Court of Appeals for the Tenth Circuit affirmed a lower court’s dismissal of the complaint on a motion for summary...more

Has California Lost Its Jurisdictional Anchor For Securities Fraud Actions?

Does California’s securities fraud statute apply to offers and sales of securities that are made in other states, in Europe, or on the moon? Actually, there is no way to know. Formerly, California Corporations Code Section...more

Structured Thoughts: Volume 5, Issue 6 - August 2014

In This Issue: - European Product Intervention - FINRA Speaks at 2014 Structured Retail Products Conference - FINRA Approves Amendments to Communication Rules – Relief from Filing for Certain...more

The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities

Summer 2014 - The Global law firm Orrick, Herrington & Sutcliffe LLP takes great pride in announcing the Summer 2014 edition of The World in US Courts: Orrick’s Quarterly Review of Decisions Applying US Law To Global...more

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