Securities Civil Procedure Civil Remedies

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Platinum Partners Value Arbitrage Fund L.P. v. Echo Therapeutics, Inc., C.A. No. 10303-VCN (Del. Ch. Nov. 14, 2014) (Noble, V.C.)

In this letter opinion, the Court of Chancery denied a motion to expedite proceedings in which a stockholder sought to call a special meeting to remove a majority of the corporation’s directors....more

SEC Files Settled FCPA Action Centered On Improper Travel

A “world tour” was at the center of FCPA violations by two employees of FLIR Systems, Inc., In the Matter of Stephen Timms, Adm. Proc. File No. 3-16281 (Nov. 17, 2014). Travel was also the focus of the Commission’s latest...more

Suit to Enjoin SEC Forum Selection Dismissed

Many have expressed concern regarding the increasing use of administrative proceedings by the SEC. Those concerns range from the fairness of the forum to the impact of its lack of discovery on complex cases to the right to a...more

Cigna Health and Life Ins. Co. v. Audax Health Sol’ns, Inc., C.A. No. 9405-VCP (Del. Ch. Nov. 26, 2014)

In this action seeking a declaratory judgment regarding the validity of certain provisions in a merger agreement and related contracts, the Court of Chancery granted in part plaintiff’s motion for judgment on the pleadings,...more

Expedited Proceedings Denied Where Harm Is Only Speculative

The Delaware Chancery Court recently denied a shareholder’s motion to expedite proceedings to enjoin a company buyout, finding that the shareholder failed to show that any threatened harm from the buyout was imminent,...more

Blog: Court Precludes Omission Of Shareholder Proposal, After SEC Staff Permits Exclusion

In Trinity Wall Street v. Wal-Mart Stores, Inc., a federal district court in Delaware granted injunctive relief precluding omission of a shareholder proposal from Wal-Mart’s proxy statement, notwithstanding the SEC staff’s...more

Judge Orders Stockholder To “Register” Correspondence With The SEC

Many boards operate with a high degree of collegiality, even when the directors disagree. Some don’t. When the board of directors of Gas Natural Inc., a publicly traded natural gas holding company, voted to remove its CEO...more

Court Finds FHFA Claims Against Nomura Are Not Time-Barred

On November 18, Judge Denise Cote of the United States District Court for the Southern District of New York granted the Federal Housing Finance Agency’s motion for partial summary judgment on the statute of limitations...more

SEC Files Settled Insider Trading Case In District Court

After bringing a series of insider trading cases as administrative proceedings in recent weeks, the Commission returned to its more traditional approach. The agency filed settled insider trading charges against a CEO and...more

Do Some Companies Already Have Fee-Shifting Provisions (And Not Know It)?

A lot of folks these days are arguing and writing about fee-shifting bylaws as if they were some kind of novel and sudden irruption, like Athena bursting from Zeus’ skull. This overlooks the existence of fee-shifting...more

Federal Court Holds That Lack of Loss Causation Is Not a Defense Under Massachusetts Blue Sky Law

The United States District Court for the District of Massachusetts recently held in Massachusetts Mutual Life Insurance Co. v. Residential Funding Co., LLC, that lack of loss causation is not available even as an affirmative...more

Delaware Chancery Requires Payment of Merger Consideration to Dissenting Stockholder After Expiration of Appraisal Period

The Delaware Court of Chancery recently dismissed corporate mismanagement and breach of fiduciary duty claims filed by a dissenting stockholder, but ordered that the surviving corporation in a merger was required to pay the...more

Alberta Securities Commission Applies to SCC for Leave to Appeal Insider Trading Decision in Walton

The Alberta Securities Commission (ASC) has applied to the Supreme Court of Canada for leave to appeal the August 2014 decision of the Alberta Court of Appeal (Court) in Walton v Alberta (Securities Commission), 2014 ABCA 723...more

SEC Files Settled FCPA Charges Against Two Individuals

The SEC filed another settled FCPA action. The proceeding named two individuals as Respondents. It centers on using expensive gifts and travel as bribes. In the Matter of Stephen Timms, Adm. Proc. File No. 3-16281 (November...more

In re TPC Group Inc. S'holders Litig., C.A. No. 7865-VCN (Del. Ch. Oct. 29, 2014) (Noble, V.C.)

In this letter opinion, the Court of Chancery denied plaintiffs’ application for an award of attorneys’ fees and held that plaintiffs’ class action litigation was not the cause of the increase in the merger price achieved...more

Raj Rajaratnam Appeals $92 Million Civil Fine to Second Circuit Court of Appeals

Convicted investment fund founder Raj Rajaratnam filed an appeal of his Securities and Exchange Commission case in the United States Court of Appeals for the Second Circuit, arguing that the district court improperly sought...more

Illinois Supreme Court Adopts Measure of Malpractice Damages in Securities Cases

Last month, the Illinois Supreme Court handed down its unanimous decision in a case being closely watched by the local bar associations – Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman. Goldfine involved the issue of...more

Eleventh Circuit Requests Assistance in Interpreting Consent-to-Settle Provision

Most cases in the United States settle. Insurers are well-aware of this fact. Thus, insurance companies employ consent-to-settle provisions in insurance policies to limit and control their liability in the likely event of a...more

View From Proskauer: The Availability of Surcharge as Relief for Individual ERISA Fiduciary Breach Claims

Three years ago, the U.S. Supreme Court identified three forms of appropriate equitable relief — reformation, equitable estoppel and surcharge — that are available under Section 502(a)(3) of the Employee Retirement Income...more

What Does It Take to Make the SEC Happy? SEC Criticism of Broker-Dealers’ Due Diligence for Sales of Unregistered Securities...

To ensure that broker-dealers (BDs) do not inadvertently facilitate an unlawful distribution of securities, the Securities and Exchange Commission has long required BDs to conduct a “reasonable inquiry” into the circumstances...more

Court Takes Cue from Comcast v. Behrend, Certifies Class as to Liability but not Damages

In what appears to be an increasingly common practice since the Supreme Court decided Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), the Southern District of New York recently certified a class as to liability, but rejected...more

Loss Causation In A Securities Fraud Case From a Stream of Small Disclosures

A critical element in a Section 10(b) and Rule 10b-5 securities fraud claim for damages is loss causation. Mandated as a key component of such a claim by the PSLRA, the element provides the essential link between the alleged...more

Second Circuit To Decide Retroactivity of Dodd-Frank Bounty Provision

As discussed in a Law360 article by Ed Beeson, the Second Circuit Court of Appeals will decide in Stryker v. SEC, No. 13-cv-4404, whether the SEC needs to pay Dodd-Frank whistleblower bounties to tipsters who provided...more

Should've, Would've, Could've: High Court Rules On The Use Of Hindsight In The Valuation Of A Target Company

In Ageas (UK) Ltd v Kwik-Fit (GB) Ltd & anr [2014] EWHC 2178 (QB), 4 July 2014, in a claim for breach of warranty under a share purchase agreement, the defendant's warranty and indemnity insurer, AIG, argued that the...more

In re Nine Systems Corp. S'holders Litig., Consol. C.A. No. 3940-VCN (Del. Ch. Sept. 4, 2014) (Noble, V.C.)

In this 146-page post-trial opinion addressing claims challenging a 2002 recapitalization of Nine Systems Corporation (“Nine Systems”), the Court of Chancery held that a conflicted transaction resulting in a fair price...more

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