In September 2025, the SEC issued a policy statement that opens the door to provisions in companies’ governing documents mandating arbitration of securities claims. Last month, Marsh’s Philip Reed and I discussed the challenges, pros and cons, and winners and
Latest from D&O Discourse
The Future of Securities Litigation Defense
I. Introduction
I’ve seen many changes during the more than 30 years I’ve defended securities class actions. The types of claims have evolved. From the indiscriminate claims that led Congress to pass the Private Securities Litigation Reform Act of 1995
Restoring Zeal in Securities Class Action Mediations
In my May post, Making Better Judgments about Summary Judgment in Securities Class Actions, I discussed how we can pick more cases to defend through summary judgment. But, of course, the vast majority of cases will still settle, so
Making Better Judgments about Summary Judgment in Securities Class Actions
“Securities litigation” isn’t really “litigation” anymore. For the first 15 years of my career, securities class actions that were not dismissed would head into litigation, where we would test class certification, map out our summary judgment motion, and engage in
The Importance of Early Analysis of Structural Issues in Securities Class Action Defense
Bill Lerach gave the best motion to dismiss oral argument I’ve ever seen. Using a stock-price chart with key events and allegations plotted along the alleged class period, he told the complaint’s story with a wooden pointer and his superb
D&O Discourse is 11 Years Old
I started the D&O Discourse blog in October 2012 to generate discussion among the repeat players in securities and corporate governance litigation: insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel. While I share opinions from a defense-counsel perspective, I
Putting All Our Eggs in One Basket: Effective Securities Class Action Defense Must Look Beyond the Motion to Dismiss
The Reform Act was passed by the Contract-with-America Congress to address its perception that securities class actions were reflexive, lawyer-driven litigation that often asserted weak claims based on little more than a stock drop, and relied on post-litigation discovery, rather
The State of Securities Litigation: Why Don’t We Litigate “Derivative Litigation” Anymore?
Over the years, I’ve bemoaned the lack of “litigation” in “securities litigation.” In this post, I discuss the same problem in “derivative litigation:” why don’t we litigate derivative cases anymore?
Derivative litigation – in which a stockholder asserts claims
Analysis of Biotech Securities Class Action Motion to Dismiss Decisions, 2005-2022
Five years ago, we surveyed a decade’s worth of federal district court decisions on motions to dismiss securities claims brought against development-stage biotech companies to answer an important question: are these cases more likely to survive a motion to dismiss—and
The State of Securities Litigation: Good Communication is Key to Improving Securities Litigation Outcomes
I am evangelical about the importance of defense counsel working collegially with D&O insurers and brokers – the repeat players in securities and governance litigation – in the defense of litigation against our common clients. In the big picture, this