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Supreme Court Issues Two Decisions That Limit Access to Federal Courts

On May 16, 2016, the United States Supreme Court handed down two decisions that may, in practice, limit the ability to access federal district courts. In Spokeo, Inc. v. Robins, No. 13-1339, 578 U.S. ___ (2016), the Supreme...more

Blog: Deadline For Filing Cert Petition Extended Again In Conflict Minerals Case

The Chief Justice has granted another extension of time for the SEC to file a petition for cert in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case. The SEC now has until April 7, 2016 to file its...more

Blog: No Surprise Here: SEC And Amnesty File Petitions For En Banc Rehearing In The Conflict Minerals Case

To no one’s surprise, on Friday, the SEC and Amnesty International filed petitions for en banc rehearing in the conflict minerals case, National Association of Manufacturers, Inc. v. SEC. That case, decided two-to-one in...more

SEC Seeks Increased Access to Email

Jacqui Merrill, an Associate at The Volkov Law Group, joins us with a posting on the SEC’s request for increased access to emails. In a Senate Judiciary Committee meeting held on September 16, 2015, Securities and...more

D.C. Circuit Reaffirms 2014 Opinion on Conflict Minerals Rule

On August 18, 2015, the U.S. Court of Appeals for the D.C. Circuit reaffirmed its 2014 ruling that struck down the requirement that public companies must disclose to the Securities and Exchange Commission (SEC), and on their...more

D.C. Circuit Reaffirms Previous Conflict Minerals Decision: Disclosure Requirement Violates First Amendment

In a 2-1 decision, a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit reaffirmed its previous decision striking down a narrow portion of the U.S. Securities and Exchange Commission’s (“SEC”) conflict...more

D.C. Circuit Reaffirms That Portions of Dodd-Frank Conflict Minerals Rules Violate First Amendment

On August 18, 2015, the United States Court of Appeals for the District of Columbia Circuit reaffirmed its ruling in National Association of Manufacturers v. Securities and Exchange Commission that portions of the SEC’s...more

Blog: Three-Judge Panel Of D.C. Circuit Again Holds That Mandatory Disclosure Requirement Of Conflict Minerals Rule Violates First...

In November 2014, the D.C. Circuit Court of Appeals granted the petitions of the SEC and Amnesty International for panel rehearing in connection with the conflict minerals case, National Association of Manufacturers, Inc. v....more

Second Circuit: Facebook Shareholders Lack Standing for Derivative Suits Challenging Pre-IPO Statements

Earlier this week, a U.S. Court of Appeals for the Second Circuit opinion reinforced that federal courts take standing in derivative actions quite seriously, particular when the alleged director misconduct predated the IPO....more

Blog: SEC, Amnesty And Others File Briefs In Support Of Upholding The Conflict Minerals Disclosure Requirement

In November, the D.C. Circuit Court of Appeals granted the petitions of the SEC and Amnesty International for panel rehearing in connection with the conflict minerals case, National Association of Manufacturers, Inc. v. SEC....more

D.C. Circuit to Rehear Conflict Minerals Case

On November 18, 2014, the U.S. Court of Appeals for the D.C. Circuit granted the SEC’s motion to rehear the court’s decision in NAM v. SEC. As covered in previous blog posts, the court’s NAM decision held that portions of...more

Blog: D.C. Circuit grants petition for panel rehearing of conflict minerals case

The D.C. Circuit court of Appeals has granted the petitions of the SEC and Amnesty International for panel rehearing (and the motion of Amnesty to file a supplemental brief) in connection with the conflict minerals case,...more

Panel to Rehear Conflict Minerals Case

The United States Court of Appeals for the District of Columbia has granted the petition for a panel rehearing (as opposed to an en banc rehearing) in the conflict minerals case. The court asked the parties to file briefs...more

Corporate Law Report: Managing Cyber Risks, BYOD, Obama's NLRB Crisis, Iran Sanctions, and More

Our latest Corporate Law Report looks at: - top ways to manage cyber risks in the workplace; - the growing trend of employees bringing their own electronic devices (BYOD) to work; - new reporting requirements as a result...more

Supreme Court Fails To Bite At Bulldog And Oxfam America Sues The SEC

Supreme Court says “no” to Bulldog In March, I wrote that the Bulldog group of funds had asked the United States Supreme Court to determine the constitutionality of Massachusetts’ ban on general solicitations in connection with the offer and sale of unregistered securities. Despite representation by Harvard Law School Professor Laurence H. Tribe and an amicus brief from the Cato Institute, the Supreme Court on Monday denied Bulldog’s petition for certiorari.more

U.S. Supreme Court Asked To Determine Constitutionality Of General Solicitation Ban

Federal and state securities laws are premised on the belief that the government can constitutionally prohibit or limit speech in connection with the offer or sale of securities. At least one issuer has aggressively challenged this premise and has now taken its case to the U.S. Supreme Court. Phillip Goldstein is an owner/manager of a group of funds collectively referred to as “Bulldog”. In 2006, Mr. Goldstein successfully challenged the SEC’s hedge fund rule under the Investment Advisers Act of 1940. Goldstein v. Securities and Exchange Commission, 451 F.3d 873 (D.C. Cir. 2006). During this same period, Bulldog maintained a website that provided information available to any visitor, including press articles and a printable brochure describing Bulldog’s three investment vehicles. A visitor could obtain additional information only after being presented with a disclaimer. More specific information was available through a registration process.more

Bulldog Investors General Partnership v. Massachusetts

Brief Amici Curiae Of CATO Institute, Competitive Enterprise Institute, et al., In Support Of PetitionersU.S. Supreme Court

The Massachusetts Uniform Securities Act prohibits general solicitation and advertising by anyone offering unregistered securities, ostensibly for the purpose of furthering state and federal disclosure schemes. Yet this ban on public communications has been applied so broadly that it has undermined those purported disclosure goals. For instance, the ban has prevented individuals who have no interest in investing in any security — such as journalists, academics, students, and others who are not wealthy or financially sophisticated — from receiving truthful, non-misleading information about hedge funds. In Bulldog Investors v. Massachusetts, an investment company maintained an interactive website that provided information about its products. Because Bulldog was not registered in Massachusetts, however, the State filed an administrative action against the firm, demanding it take down its online content. In response, Bulldog joined a group of other firms and individuals — including some who have no interest in investing but wish to read the website information — in a lawsuit claiming that the Massachusetts ban violates their First Amendment rights. The Supreme Judicial Court of Massachusetts upheld the ban, so the plaintiffs have asked the U.S. Supreme Court to take the case. Cato, along with the Competitive Enterprise Institute and a group of journalists and academics, filed an amicus brief supporting that request and arguing that the Massachusetts law is an unconstitutional ban on free speech. We show that the state’s claim that the ban furthers a larger federal regulatory scheme ignores the judgment of many federal officials (from both parties) who have concluded that such bans undermine these goals. The state’s alleged disclosure interest is just a pretext for coercing companies to register in Massachusetts, and is therefore an unconstitutional attempt at circumventing federal preemption. But even if the ban furthers a legitimate state interest, it is so broad that it is has substantially chilled both truthful, non-misleading commercial speech and noncommercial speech alike. A law so repugnant to the First Amendment cannot stand. Please see full brief below for more information. more

California State Teachers Retirment System v. Blankenship, et al.

West Virginia Supreme Court Order denying Preliminary Injunction in Massey - Alpha merger case, but also refusing to seal certain recordsWest Virginia

The West Virginia Supreme Court of Appeals issued an Order denying Massey shareholders' request for a Preliminary Injunction to challenge the merger of Massey and Alpha Natural Resources. The parties had also sought to seal the entire record in the case, and that request was opposed by National Public Radio (NPR) and the Charleston gazette newspaper. The Supreme Court partially agreed with NPR and the Charleston Gazette and refused to seal the shareholders brief requesting an injunction or the response of the Massey defendants. However, as far as the exhibits to those pleadings was concerned, the Supreme Court stated it did not have enough information to make a decision whether or not to unseal the exhibits and held that it was sending the case back to the Circuit Court of Kanawha County, West Virginia. Sean McGinley and Rudolph DiTrapano of the Charleston, West Virginia law firm of DiTrapano Barrett & DiPiero, PLLC represented NPR and the Charleston Gazette.more

California State Teachers Retirement System v Blankenship, et al.

NPR and the Charleston Gazette's Opposition to Motion to Seal Record in Massey - Alpha merger caseWest Virginia

National Public Radio (NPR) and the Charleston Gazette filed this Opposition to a Motion to Seal the Record in a case brought by shareholders of Massey Energy Company seeking to block the sale of Massey to Alpha Natural Resources. The shareholders state court action in West Virginia was moved to the West Virginia Supreme Court in an attempt to get a preliminary injunction before the merger of the two coal companies was finalized. The shareholders, apparently as a result of the agreed protective order they endorsed to expedite discovery, requested that Massey's documents be sealed. NPR and the Charleston Gazette opposed the effort seal, pointing out that under West Virginia's Constitution and common law, as well as the First Amendment to the U.S. Constitution, the Press and the Public have a presumptive right to access all records filed in court unless that right is modified by statute or a strong and compelling policy reason. The Intervenors point out in their pleading that this case is of heightened public interest and special significance given the fact that Massey and its Board members have been accused of wrongdoing in relation to the Upper Big Branch tragedy, and the documents sought to be sealed could shed light on the tragedy and the role Massey's Board played in the company's acts and omissions that may have led to the tragedy. It appears that Massey's upper management, most of whom refused to provide testimony in the governmental investigations of the tragedy, were compelled to testify about the company's practices in depositions that are included in the filing sought to be sealed. In addition, these documents could contain information that is important for the Public, as well as Massey's shareholders, in analyzing and understanding the proposed multi-Billion dollar transaction. NPR and the Charleston Gazette are represented by attorneys Sean McGinley and Rudolph L. DiTrapano of the Charleston, West Virginia law firm of DiTrapano Barrett & DiPiero, PLLC.more

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