Latest from D&O Discourse

In my law practice, I defend particular clients in particular securities and governance cases.  My mission is to get them through the litigation safely and comfortably. But I’ve always had a broader interest in securities law and practice as well.  After Congress passed the Private Securities Litigation Reform Act of 1995, I read and chronicled every Reform Act court decision over the next several years.  As a senior associate and, later, a junior partner, I wrote…
Today, my colleague Kristin Beneski and I were honored to file a US Supreme Court amicus brief on behalf of the Washington Legal Foundation (“WLF”) in Cyan, Inc. v. Beaver County Employees Retirement Fund. In Cyan, the Supreme Court will decide whether state courts have jurisdiction over securities class actions alleging violations of the Securities Act of 1933, or if federal courts have exclusive jurisdiction. In support of Cyan’s position that federal courts have exclusive…
How will the 2017 arrival of Justice Neil Gorsuch influence the US Supreme Court’s securities-fraud jurisprudence? My colleague Kristin Beneski and I discuss this question in a Washington Legal Foundation Working Paper titled “US Supreme Court Securities-Fraud Jurisprudence:  An Emerging New Direction?” In our Working Paper, we analyze whether Justice Gorsuch may urge the Court to chip away at the viability of securities class actions—such as by revisiting the Basic v. Levinson fraud-on-the-market presumption or…
SEC Commissioner Michael Piwowar recently said that the SEC is open to allowing companies that are going public to provide for mandatory shareholder arbitration in their corporate charters.  Piwowar’s remarks have prompted a firestorm of discussion of the issue of mandatory arbitration of securities class actions, including helpful analyses by Alison Frankel and Kevin LaCroix of issues that arbitration provisions would raise. If Piwowar’s thought turns into action, there will be numerous public policy and legal…
I’d like to update D&O Discourse readers on our companion blog, D&O Developments, launched last spring. As a reminder, D&O Developments primarily reports and digests published appellate decisions in Private Securities Litigation Reform Act cases.  D&O Developments complements D&O Discourse, which provides monthly in-depth opinion on key issues of law and practice in the world of securities and corporate governance litigation. Various members of our Securities Litigation Practice Group contribute pieces to D&O Developments. …
In a matter of first impression in the Ninth Circuit, the court applied the Supreme Court’s Omnicare standard for pleading the falsity of a statement of opinion in City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology, Inc., — F.3d —, 2017 WL 1753276 (9th Cir. May 5, 2017).  The Ninth Circuit decision builds on the momentum for the defense bar following the 2016 Second Circuit opinion in Tongue v.…
I am grateful for the enthusiastic feedback I’ve received on my three-part blog post “Who is Winning the Securities Class Action War—Plaintiffs or Defendants?”  I especially appreciate the time Kevin LaCroix took to write a post addressing my post in his leading blog, The D&O Diary. With the benefit of 25 years’ experience defending directors and officers in securities class actions, shareholder derivative actions, and SEC investigations, I’ve had a front-row seat to…
This is the third of a three-part post that analyzes why plaintiffs are winning the securities class action war and what defendants can do about it. At stake is a system of securities litigation that sets up one side or the other to win more cases in the long term.  It has real-world consequences for directors and officers—they expect companies, D&O insurers and brokers, and the securities defense bar to fight for a system of…
This is the second of a three-part post evaluating who is winning the securities class action war. Part I explained that this war is not just a scorecard of wins and losses, but rather a fight for strategic positioning—about achieving a system of securities litigation that sets up plaintiffs or defendants to win more cases over the long term.  Despite winning many of the battles, defendants are losing the war because of the defense side’s…
The securities class action war is about far more than the height of the pleading hurdles plaintiffs must clear, the scorecard of motions to dismiss won and lost, or median settlement amounts.  It is a fight for strategic positioning—about achieving a system of securities litigation that sets up one side or the other to win more cases over the long term.  How this war plays out has real-world consequences for the people sued in securities…