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Lessons from the Recent Delaware Supreme Court Opinions Concerning Master Limited Partnerships
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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).
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Beyond Say on Pay: The Latest Round of Executive Compensation Litigation – And Some Considerations on Defending Against It
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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.
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Securities Litigation Insights
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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.
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The SEC’s Continued Focus on Private Fund Managers
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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.
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The SEC Previews 2013 Enforcement Priorities in the Alternative Space
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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.
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Pros and Cons of Using “Management Fee Waivers” in NY
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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.”
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Stock Price Gain — Not Necessarily Plaintiff’s Loss
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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.
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In 5th Circ., Time Is Not On SEC’s Side
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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.
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Securities Litigation Insights
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10/02/2012
Issue 9, Fall 2012
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Say-On-Pay Lawsuits Losing Steam
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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.
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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?
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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.
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Securities Litigation Insights
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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.
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Recent Trends in FINRA Enforcement: A Focus on FINRA’s Regulatory Activities and Agenda
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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.
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A Basic Question: Is Materiality the Better Standard for Class Certification in Securities Fraud Lawsuits?
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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.
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New Decision Creates Split in Southern District of New York Over Janus Decision
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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.
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Southern District of Texas Offers Guidance as to the Types of Representations That Are Actionable Under Rule 10(b)
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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.
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Say-on-Pay Litigation: Shareholders Demand to Be Heard
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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.
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Securities Litigation Insights
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11/11/2011
Issue 7, Fall 2011
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation.
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Could the Supreme Court’s Enforcement of Arbitration in Concepcion Reverberate in the Securities Litigation Sphere?
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10/27/2011
First published by Securities Litigation Report, September 2011
A recent U.S. Supreme Court decision may cause corporations to reconsider a possible way to avoid costly and often counter-productive securities class actions.
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Delaware Court of Chancery Awards $1.2 Billion Under Entire Fairness Standard in Shareholder Derivative Action
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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.
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Another Face of Janus: Judge Scheindlin Holds Investment Manager Is Not Primarily Liable for Statements Made by Equity Fund
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10/21/2011
V&E Securities Litigation and Enforcement Update E-communication, October 21, 2011
Only weeks after Judge Koeltl of the United States District Court for the Southern District of New York (S.D.N.Y.) opined on the meaning of “ultimate authority” as used by the U.S. Supreme Court in Janus Capital Group, Inc. v. First Derivative Traders, Judge Scheindlin of the S.D.N.Y. issued a decision reaching a different conclusion on similar facts.
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Listen to V&E Partner Jason Levine and a Roundtable of Prominent Washington, DC-Area Attorneys
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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.
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Distinguishing Janus: District Court Sustains Complaint Against Holding Company Even Though It Did Not Author the Allegedly Misleading Statements
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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.
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Control Person Liability: Tips for Investment Firms
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09/28/2011
First published in Law360, September 21, 2011
Investment firms face an ever-expanding range of legal risks associated with making and managing their portfolio company investments.
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Securities Litigation Risks for Chinese Companies Listed on U.S. Exchanges
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08/18/2011
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Securities Litigation Insights
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08/16/2011
Issue 6, Summer 2011
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation.
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U.S. Supreme Court Rejects Efforts to Expand Liability Under Section 10(b) and Holds That Persons Who Draft But Do Not Issue False Statements Cannot Be Liable
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06/13/2011
V&E Securities Litigation and Enforcement Update E-communication, June 13, 2011
Following on the heels of last week’s Erica P. John Fund decision, the U.S. Supreme Court today issued another important securities-law decision in Janus Capital Group Inc. v. First Derivative Traders, which resolves a split in authority on the reach of secondary liability, i.e., liability for persons other than the person who issues an allegedly false statement.
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The Expanding Scope of Insider Trading Liability
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06/06/2011
Published in Financial Fraud Law Report, June 2011
The Securities and Exchange Commission (SEC) and Department of Justice (DOJ) continue to aggressively push the limits of insider trading liability.
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United States Supreme Court Rules that Loss Causation Is Not a Requirement for Class Certification in Securities Class Actions
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06/06/2011
V&E Securities Litigation and Enforcement Update E-communication, June 6, 2011
The U.S. Supreme Court issued the latest in a string of important securities law decisions today, holding that plaintiffs in securities fraud class actions are not required to demonstrate loss causation to certify a class.
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SEC’s Final Rules Reject Requirement That Whistleblowers Report Internally Before Going to the SEC
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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”).
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The War on Bribery Goes Global: Recent Developments and Enforcement Trends in the International Anti-Corruption Arena
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05/02/2011
First published in Bloomberg Law Reports, May 2011
For the past 30 years, the U.S. Foreign Corrupt Practices Act, which targets conduct perpetrated outside the territorial bounds of the U.S., has served as the international beacon of anti-corruption legislation and the U.S. Department of Justice and U.S. Securities and Exchange Commission, the primary enforcers of anti-bribery crimes occurring globally.
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Taking Its Medicine — Johnson & Johnson Agrees to Settle FCPA Charges After Cooperating Against Industry Participants
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04/13/2011
V&E Foreign Corrupt Practices Act Update E-communication, April 13, 2011
Making good on earlier promises to focus enforcement efforts on the pharmaceutical industry, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) announced on April 8, 2011, a settlement with Johnson & Johnson (J&J) whereby the New Jersey-based medical device and pharmaceutical company agreed to pay combined penalties of approximately $77 million to settle charges that certain of its foreign subsidiaries violated the U.S. Foreign Corrupt Practices Act (FCPA).
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The Expanding Scope of Insider Trading Liability
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04/11/2011
First published in Securities Litigation Insights, Winter 2011
The Securities and Exchange Commission and Department of Justice continue to aggressively push the limits of insider trading liability. Recent enforcement actions against hedge funds and expert-networking firms demonstrate that investment professionals should be cognizant of and scrutinize the information that they receive and rely on in making investment decisions.
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U.S. Supreme Court Goes Back to Basic on Materiality Under Federal Securities Laws
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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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Securities Litigation Insights
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03/03/2011
Issue 5, Winter 2011
Securities Litigation Insights is a periodic report concerning recent developments, issues, and matters of interest in securities litigation and regulation.
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Litigation News, Winter 2011
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02/17/2011
In this issue: The Next FCPA Battleground: Private Civil Lawsuits Following Foreign Corrupt Practices Act Settlements with U.S. Government Authorities; The U.S. Supreme Court Clarifies Class Arbitration, But Muddies Other Waters in the Process; Implications of Exxon Mobil v. Venezuela; and more.
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When a Company's Stock Price Falls, Two Shoes Drop: the Securities Class Action and the ERISA Class Action
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01/28/2011
Sudden drops in stock prices often trigger lawsuits by shareholders under the Securities Exchange Act of 1934.
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Fifth Circuit Holds that Explicit Attribution Is Necessary for Section 10(b) Liability
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11/22/2010
V&E Securities Litigation and Enforcement E-communication, November 22, 2010
The U.S. Court of Appeals for the Fifth Circuit recently clarified the reach of the securities-fraud laws by holding that a “secondary actor” such as a lawyer or accountant cannot be held liable in a private section 10(b) action for making false statements, unless those statements were explicitly attributed to the secondary actor at the time of dissemination.
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Two Key Electronic Discovery Opinions Take Center Stage in Early 2010
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11/08/2010
First published in Litigation News, Summer 2010
Two judges preeminent in the world of electronic discovery began 2010 with notable opinions addressing conduct and culpability in preserving and collecting documents relevant to litigation.
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Fifth Circuit Revives the SEC’s Insider Trading Case Against Mark Cuban
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09/22/2010
V&E Securities Litigation and Enforcement E-communication, September 22, 2010
The U.S. Fifth Circuit has breathed new life into the SEC’s high-profile insider trading case against Mark Cuban, owner of the Dallas Mavericks basketball team, by reversing the district court's dismissal of the SEC's claims.
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New Executive Compensation and Corporate Governance Requirements for Public Companies Under the Dodd-Frank Act
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09/07/2010
V&E Employee Benefits and Executive Compensation E-communication, September 7, 2010
Public companies should begin preparing for the new executive compensation and corporate governance requirements established by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) that was signed into law on July 21, 2010.
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Get Prepared for Dodd-Frank
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08/04/2010
V&E Securities Litigation and Enforcement E-communication, August 4, 2010
The new Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”) will have significant consequences for public companies across every industry.
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Review of Significant Decisions from the U.S. Supreme Court's Last Term
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07/27/2010
First published in Securities Litigation Insights, Summer 2010, Issue 3
The United States Supreme Court decided four cases in the securities law area this term, with, on balance, defendant-friendly results. We discuss the highlights of
these cases below.
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Recent Developments Concerning the PSLRA’s Safe Harbor Provision
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07/27/2010
First published in Securities Litigation Insights, Summer 2010, Issue 3
A “safe harbor” provision was included in the Private Securities Litigation Reform Act to encourage companies to give future-looking guidance without fear of liability if that guidance turned out to be incorrect.
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