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Practice: Securities Litigation and Enforcement

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The U.S. Supreme Court’s Decision in Halliburton II Does Not Overrule the Fraud-on-the-Market Presumption But Does Give Defendants an Additional Argument to Defeat Class Certification
06/24/2014
V&E Securities Litigation and Enforcement Update E-communication, June 24, 2014
The long-awaited Supreme Court decision in Halliburton Co. v. Erica P. John Fund (Halliburton II) settles on a middle-ground approach that creates a new, but limited, avenue to challenge class certification in securities-fraud cases.

How PE Firms Can Mitigate Secondary Liability Risks
03/18/2014
First published by Law360, March 5, 2014
Investment firms continue to face an expanding series of legal risks associated with their portfolio company investments — including through theories of secondary liability. 

The SEC’s 2014 Agenda and Investment Adviser Examination Priorities
02/20/2014
V&E Securities Litigation and Enforcement Update E-communication, February 20, 2014 
The Securities and Exchange Commission (SEC) began 2014 by laying out an ambitious agenda and providing important guidance to market participants, including private investment funds. 

SDNY Blows the Whistle: Declares Foreign Employees Out of Bounds of the Dodd-Frank Anti-Retaliation Provision
11/07/2013
V&E Dodd-Frank Regulatory Update E-communication, November 7, 2013
Judge William Pauley of the Southern District of New York (SDNY) held late last month that the anti-retaliation provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) does not extend to conduct abroad, significantly limiting the potential reach of protections afforded under Dodd-Frank.

Under New Leadership, SEC Enforcement Charts an Aggressive Course
10/21/2013
V&E Securities Litigation and Enforcement / Private Funds Update E-communication, October 21, 2013 
Fresh out of the gate, the SEC’s new leadership is setting a firm tone for its tenure, including clearly defined enforcement priorities.

How to Mitigate Risk When Reporting Reserve Estimates
08/21/2013
First published by Law360, August 14, 2013
Reserve estimates are an important piece of public disclosure for energy companies and of keen interest to investors.

What To Expect From SEC's Admission Of Wrongdoing Policy
07/17/2013
First published in Law360, July 11, 2013
The U.S. Securities and Exchange Commission’s recent announcement that it may require an admission of wrongdoing as part of certain settlements comes on the heels of a growing chorus of criticism from federal judges with respect to settlements entered into without an admission of wrongdoing.

Lessons from the Recent Delaware Supreme Court Opinions Concerning Master Limited Partnerships
06/07/2013
V&E's Securities Litigation and Enforcement and MLP Update E-communication, June 7, 2013
The Delaware Supreme Court recently issued two rulings addressing the enforceability of certain provisions in master limited partner agreements (MLP).

Beyond Say on Pay: The Latest Round of Executive Compensation Litigation – And Some Considerations on Defending Against It
06/06/2013
First published by Corporate Board Member, May 20, 2013
Companies and directors have seen wave after wave of executive compensation litigation, from “say on pay” suits in the wake of Dodd-Frank, to threatened preliminary injunctions to enjoin shareholder votes.

Securities Litigation Insights
04/11/2013
Issue 10, Spring 2013
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation.

The SEC’s Continued Focus on Private Fund Managers 
03/22/2013
V&E Securities Litigation and Enforcement / Private Funds Update E-communication, March 22, 2013
In recent weeks, the SEC has continued to provide private fund managers with important guidance regarding the SEC’s enforcement and examination priorities. 

The SEC Previews 2013 Enforcement Priorities in the Alternative Space
01/10/2013
V&E's Securities Litigation and Enforcement Update E-communication, January 10, 2013
Private fund managers should take note of a recent speech by Bruce Karpati, Chief of the SEC Enforcement Division’s Asset Management Unit (AMU), in which Karpati described the SEC’s enforcement priorities for 2013 and provided guidance for managers of private equity funds and hedge funds. 

Pros and Cons of Using “Management Fee Waivers” in NY 
11/05/2012
First published in Law360, New York, November 2012
The press recently reported on a series of investigations undertaken by the New York Attorney General’s Office to scrutinize private equity firms’ use of “management fee waivers.”

Stock Price Gain — Not Necessarily Plaintiff’s Loss 
10/29/2012
First published in Law360, October 2012
The Second Circuit’s recent decision in Acticon AG v. China North East Petroleum Holdings Ltd. appears to foreclose a defendant’s ability, at the motion to dismiss stage, to use an increase in stock price following a corrective disclosure to refute a claim of economic loss.

In 5th Circ., Time Is Not On SEC’s Side
10/05/2012
First published in Law360, October 2012
This summer, individual defendants received a dose of good news, at least in the United States Court of Appeals for the Fifth Circuit, when the Fifth Circuit ruled that the injunctions against future securities law violations and officer and director bars that the U.S. Securities and Exchange Commission sought constituted “penalties” subject to the five-year statute of limitations under 28 U.S.C. § 2462.

Securities Litigation Insights
10/02/2012
Issue 9, Fall 2012

Say-On-Pay Lawsuits Losing Steam
07/19/2012
First published by Law360, July 10, 2012
The year 2011 brought the U.S. Securities and Exchange Commission’s final rules on “say on pay” advisory votes under the Dodd-Frank Wall Street Reform and Consumer Protection Act — and a slew of say-on-pay lawsuits to go with them. 

U.S. Supreme Court Grants Certiorari Petition in Amgen: Must Plaintiffs in Securities Class Actions Prove Materiality to Invoke the “Fraud-On-The-Market” Presumption?
06/12/2012
V&E Securities Litigation and Enforcement Update E-communication, June 12, 2012
The threat of class-wide judgments in private securities class actions often leads defendants to pay significant amounts to settle claims without testing their merits for fear of incurring even greater damages after a trial. 

Securities Litigation Insights
03/21/2012
Issue 8, Winter 2012
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation. 

Recent Trends in FINRA Enforcement: A Focus on FINRA’s Regulatory Activities and Agenda 
03/20/2012
First published in Bloomberg Law Reports, March 6, 2012
In the wake of the financial crisis of 2008 and revelations concerning high-profile fraud, including insider trading and Ponzi schemes, securities industry regulators have come under increased pressure to enhance investor protection measures. 

A Basic Question: Is Materiality the Better Standard for Class Certification in Securities Fraud Lawsuits?
03/05/2012
First published in Bloomberg Law Reports, February 13, 2012
The growing disagreement among federal courts over the timing for proving materiality in securities-fraud class actions highlights how unworkable the fraud-on-the-market (FOTM) inquiry currently is. 

New Decision Creates Split in Southern District of New York Over Janus Decision
02/24/2012
V&E Securities Litigation and Enforcement Update E-communication, February 24, 2012
A new decision from the Southern District of New York (S.D.N.Y.) has created a split in that district concerning the application of the U.S. Supreme Court’s decision in Janus Capital Group, Inc. v. First Derivative Traders 131 S. Ct. 2296 (2011), in SEC enforcement actions. 

Southern District of Texas Offers Guidance as to the Types of Representations That Are Actionable Under Rule 10(b)
02/23/2012
V&E Securities Litigation and Enforcement Update E-communication, February 23, 2012
The Southern District of Texas recently discussed the line between representations that give rise to a securities fraud action and statements that are not actionable. 

Say-on-Pay Litigation: Shareholders Demand to Be Heard
02/07/2012
First published by Thomson Reuters INFORMER, Winter 2012
Shareholders focus on corporate executive compensation levels and practices is at an all-time high, thanks in large part to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) enacted in 2010. 

Delaware Court of Chancery Awards $1.2 Billion Under Entire Fairness Standard in Shareholder Derivative Action
10/26/2011
V&E Securities Litigation and Enforcement Update E-communication, October 26, 2011
The Delaware Court of Chancery’s recent decision, In re Southern Peru Copper Corp. Shareholder Derivative Litigation, C.A. No. 961-CS (Del. Ch. Oct. 14, 2011), provides a number of reminders and considerations for any board or committee that is involved in evaluating or negotiating a potential transaction.  

Listen to V&E Partner Jason Levine and a Roundtable of Prominent Washington, DC-Area Attorneys
10/13/2011
First aired on SmartCEO, October 2011
A roundtable discussion among a number of prominent Washington, DC-area attorneys, including V&E partner Jason Levine.

Distinguishing Janus: District Court Sustains Complaint Against Holding Company Even Though It Did Not Author the Allegedly Misleading Statements
10/05/2011
V&E Securities Litigation and Enforcement Update E-communication, October 5, 2011
In one of the first cases interpreting the U.S. Supreme Court’s June 2011 decision in Janus Capital Group, Inc. v. First Derivative Traders, Judge John Koeltl of the United States District Court for the Southern District of New York issued a recent decision that has important ramifications for Section 10(b)/Rule 10b-5 liability in private securities fraud actions.

SEC’s Final Rules Reject Requirement That Whistleblowers Report Internally Before Going to the SEC
05/26/2011
V&E's Dodd-Frank Whistleblower Provisions Update, May 26, 2011
On May 25, 2011, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) adopted final rules governing the new whistleblower program implemented under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or the “Act”). 

U.S. Supreme Court Goes Back to Basic on Materiality Under Federal Securities Laws
04/05/2011
V&E Securities Litigation and Enforcement E-communication, April 5, 2011
The U.S. Supreme Court has reaffirmed the fact-intensive nature of the materiality standard under the federal securities laws. 


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