The U.S. District Court for the Central District of California held on May 20, 2016 that the federal securities laws do not apply to U.S. transactions in unlisted, unsponsored American Depositary Receipts (ADRs) for a foreign...more
5/25/2016
/ Accounting Fraud ,
Application of Foreign Laws ,
Comity ,
Foreign Issuers ,
Forum Non Conveniens ,
Investors ,
Japan ,
Morrison v National Australia Bank ,
Motion to Dismiss ,
Over-the-Counter Sales ,
Putative Class Actions ,
Toshiba
On May 16, 2016, the U.S. Supreme Court ruled that the provision of the Securities Exchange Act of 1934 granting federal district courts exclusive jurisdiction over suits brought to enforce the Exchange Act is subject to the...more
The New York Court of Appeals has followed Delaware in holding that the business-judgment rule applies to going-private mergers as long as certain shareholder-protective measures are met. The court’s May 5, 2016 decision in...more
On May 4, 2016, the U.S. Court of Appeals for the Second Circuit affirmed the fraud conviction of a registered investment adviser and held that proof of intent to harm is not an element of a criminal conviction under section...more
5/5/2016
/ Conflicts of Interest ,
Convictions ,
Criminal Prosecution ,
Fraud ,
Intent ,
Investment Advisers Act of 1940 ,
Jury Instructions ,
Mens Rea ,
Registered Investment Advisors ,
Scienter ,
Willful Misconduct
Cornerstone Research’s latest annual report discloses that the number and average size of securities class-action settlements increased in 2015 as compared to 2014. Total settlement dollars rose to more than $3 billion –...more
The Second Circuit held yesterday that Item 303 of SEC Regulation S-K requires issuers to disclose only those trends, events, or uncertainties about which the issuer has actual knowledge, rather than those matters about which...more
The Second Circuit has clarified the applicable statutes of repose for securities-fraud and proxy-related claims under §§ 9(f), 14(a), and 18(a) of the Securities Exchange Act. The court’s March 17, 2016 decision in DeKalb...more
In re Petrobras Securities Litigation continues to produce interesting developments – this time on SLUSA preemption and Brazilian law. On March 12, 2016, the U.S. District Court for the Southern District of New York held...more
Ageas (the former Fortis) and several organizations representing Fortis shareholders announced yesterday a EUR 1.204 billion settlement of shareholder claims under the Dutch Act on Collective Settlement of Mass Claims (the...more
3/15/2016
/ Class Action ,
Corporate Counsel ,
EU ,
International Litigation ,
Jurisdiction ,
Morrison v National Australia Bank ,
Netherlands ,
Opt-Outs ,
SCOTUS ,
Settlement ,
Shareholder Litigation
The U.S. Court of Appeals for the Second Circuit reinforced the stringency of the new standard for liability in securities cases arising from allegedly misleading statements of opinion. Construing the Supreme Court's 2015...more
The United States District Court for the Southern District of New York yesterday certified two classes of investors who had purchased Petrobras securities on U.S. exchanges or in other U.S. transactions. The February 2, 2016...more
The Delaware Court of Chancery dealt another blow to disclosure-only settlements of merger litigation and refused to approve a proposed class-action settlement arising from Zillow, Inc.'s acquisition of Trulia, Inc. ...more
1/25/2016
/ Attorney's Fees ,
Class Action ,
Corporate Counsel ,
Disclosure-Based Settlements ,
Mergers ,
Preliminary Injunctions ,
Shareholder Litigation ,
Stock Deals ,
Supplemental Disclosures ,
Trulia ,
Zillow
The Second Circuit last week affirmed the conviction of a former corporate executive on charges of insider trading. The court’s unpublished decision on January 14 in United States v. Riley held that the Government had...more
On January 19, 2016, the Supreme Court agreed to review the Court of Appeals for the Ninth Circuit's decision concerning the "personal benefit" required to establish a claim for insider trading. The grant of certiorari in...more
The narrowing of the federal securities laws’ applicability to non-U.S. transactions continues. On December 21, 2015, the U.S. District Court for the Southern District of New York held in In re Petrobras Securities Litigation...more
Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space...more
11/25/2015
/ China ,
Cybersecurity ,
EU ,
Gift Tax ,
Hedge Funds ,
Hong Kong ,
Internships ,
Popular ,
Private Equity ,
Private Funds ,
Registered Investment Advisors ,
Securities and Exchange Commission (SEC) ,
UK ,
Volcker Rule ,
Whistleblowers
The Second Circuit held last week that a borrower did not waive the attorney-client privilege by providing documents to a consortium of lender banks that shared a common legal interest with the borrower in the tax treatment...more
Last week, the Ninth Circuit issued a decision that could affect analyses of corporate scienter in securities class actions. The court reversed the dismissal of In re ChinaCast Education Corporation Securities Litigation and...more
10/28/2015
/ Apparent Authority ,
Board of Directors ,
CEOs ,
Class Action ,
Corporate Counsel ,
Corporate Officers ,
Exceptions ,
Fraud-on-the-Market ,
Professional Misconduct ,
Scienter ,
Securities Fraud ,
Shareholder Litigation
As we have previously discussed, there has been a growing trend of corporations’ adopting various types of bylaws to define the bounds of shareholder litigation. These include forum-selection bylaws and fee-shifting bylaws...more
10/27/2015
/ Board of Directors ,
Bylaws ,
Class Action ,
Corporate Governance ,
Derivative Suit ,
Duty of Loyalty ,
Fee-Shifting ,
Forum Selection ,
Mootness ,
Motion to Dismiss ,
Motion To Intervene ,
Shareholder Litigation ,
Voluntary Dismissals
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
The U.S. Court of Appeals for the District of Columbia Circuit held today that federal District Courts do not have subject-matter jurisdiction to entertain challenges to ongoing SEC administrative enforcement proceedings. A...more
9/30/2015
/ Administrative Proceedings ,
Article III ,
De Novo Standard of Review ,
Due Process ,
Enforcement ,
Equal Protection ,
Judicial Review ,
Non-Delegation Doctrine ,
Preemption ,
Securities and Exchange Commission (SEC) ,
Separation of Powers ,
Standing ,
Subject Matter Jurisdiction
Much ink has been spilled since the Supreme Court’s 2010 decision in Morrison v. National Australia Bank about the federal securities laws’ applicability to foreign transactions in foreign securities. But what happens when...more
9/29/2015
/ Application of Foreign Laws ,
BP ,
Canada ,
Class Action ,
Corporate Counsel ,
Cross-Border Transactions ,
Foreign Nationals ,
Forum Non Conveniens ,
Morrison v National Australia Bank ,
NYSE ,
SCOTUS ,
Securities Litigation
The Securities and Exchange Commission appears to be hearing the music. In response to the many voices that have expressed dissatisfaction with the procedures used in SEC administrative hearings, the SEC today issued proposed...more
9/25/2015
/ Administrative Appeals ,
Administrative Hearings ,
Administrative Proceedings ,
Amended Regulation ,
Comment Period ,
Depositions ,
Discovery ,
Federal Rules of Civil Procedure ,
Notice and Comment ,
Proposed Regulation ,
Securities and Exchange Commission (SEC)
The Securities and Exchange Commission again rejected constitutional challenges to the use of administrative enforcement proceedings presided over by Administrative Law Judges (“ALJs”). The Commission’s September 17, 2015...more
9/24/2015
/ Administrative Law Judge (ALJ) ,
Administrative Proceedings ,
Appointments Clause ,
Article II ,
Corporate Counsel ,
Enforcement Actions ,
Equal Protection ,
Jurisdiction ,
PCAOB ,
Registered Investment Advisors ,
Securities and Exchange Commission (SEC)
An apparently frustrated Delaware Vice Chancellor recently approved yet another disclosure-only settlement of yet another challenge to a merger, but seemed intent on signaling that such proposed class-action settlements might...more