Corporate Defense and Disputes

Important developments in U.S. securities law, white collar criminal defense, regulatory enforcement and other emerging issues impacting financial services institutions, publicly traded companies and private investment funds

Seventh Circuit Adopts Trulia Standard for Disclosure-Only Settlements

Last week, in an opinion authored by Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit rejected a proposed class-action settlement arising from Walgreen Co.’s acquisition of the Swiss-based pharmacy company, Alliance Boots GmbH. In re Walgreen Co. Stockholder Litigation, No. 15-3799 (7th Circ. Aug. 10, 2016).  Judge Posner’s sharply-worded opinion endorsed the Delaware Chancery Court’s holding in In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884, 894 (Del. Ch. 2016) and represents another blow to disclosure-only settlements of merger litigation. Continue Reading

Joshua Newville Discusses Amendments to Rules Governing SEC Administrative Proceedings with Compliance Week

Last month, the SEC announced that it had adopted amendments updating the rules of practice governing its in-house administrative proceedings.  On August 9, 2016, Compliance Week published an article on the recently-adopted amendments, entitled, SEC modifies administrative proceedings, but did it go far enough? The article features insights from Proskauer partner Joshua Newville, who discusses whether the amendments sufficiently address the SEC’s perceived “home-field advantage” in administrative proceedings. Continue Reading

Who Wins in SEC Administrative Proceedings?

A handful of recent SEC defeats in administrative proceedings have caused us to question the conventional narrative that the SEC has a distinct “home field advantage” before its own administrative law judges.  According to analysis conducted by the Wall Street Journal, the SEC had a 90% win rate in contested cases it brought before its ALJs from October 2010 through March 2015, while it prevailed in only 69% of federal court trials over the same period.  After the SEC lost five high-profile insider trading trials in 2014, this narrative seemed to fit.

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Key Takeaways from Cornerstone Research’s Securities Class-Action Filings 2016 Midyear Assessment

Cornerstone Research recently released its 2016 midyear assessment of federal securities class-actions filings. The report finds an increase in filings in the first half of 2016, with particular increases in M&A filings, filings against U.S.-exchange-listed companies and S&P 500 companies, and filings within both the Financial and Consumer Non-Cyclical sectors.

Below are some key takeaways from and observations about Cornerstone’s report:

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In Conflict With Other Circuits, Seventh Circuit Rules That Certain Transfers Involving Financial Institution Intermediaries Not Immune From Recovery By Bankruptcy Trustee

Section 546(e) of the bankruptcy code prohibits a bankruptcy trustee from avoiding “settlement payment[s]”, or payments “made in connection with a securities contract,” that are “made by or to (or for the benefit of)” qualifying financial entities, including financial institutions, stockbrokers, commodities brokers and others.   In a ruling that conflicts with precedent from the Second, Third, Sixth, Eighth, and Tenth Circuits, a decision last week by a Seventh Circuit panel held that the safe harbor provision of section 546(e) does not preclude a trustee from recovering a transfer to a party that was not a qualifying financial entity, where a qualifying financial institution was merely the conduit for the transaction.  See FTI Consulting v. Merit Management Group, LP.

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First Circuit Affirms Another Insider-Trading Conviction

The U.S. Court of Appeals for the First Circuit yesterday affirmed another conviction in a pair of appeals arising from insider-trading prosecutions.  The decision in United States v. McPhail confirms that, under current First Circuit precedent, a tipper of inside information can receive “personal benefits” based on expectations of a free dinner, wine, and a massage parlor, on “kickbacks” from a tippee-friend’s trades, and on his tippee-friends’ “general gratitude for his largesse.”

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Sixth Circuit Court of Appeals Accepts Materialization-of-Risk Standard for Loss Causation

The U.S. Court of Appeals for the Sixth Circuit yesterday recognized the “materialization of the risk” standard as a means of proving loss causation in securities-fraud cases. The court’s decision in Ohio Public Employees Retirement System v. Federal Home Loan Mortgage Corp. aligns the Sixth Circuit with the majority of other circuits, which have also allowed plaintiffs to plead loss causation by alleging damages arising from a materialization of a concealed risk, even in the absence of a corrective disclosure of the previously hidden or misstated “truth.”

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