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

SEC Staff Announces 2017 OCIE Examination Priorities

On January 12, 2017, the staff of the Office of Compliance Inspections and Examinations (OCIE) of the Securities and Exchange Commission (SEC) released its annual announcement on examination priorities in the coming calendar year. The 2017 examination priorities are organized around three thematic areas: (i) examining matters of importance to retail investors; (ii) focusing on risks specific to elderly and retiring investors; and (iii) assessing market-wide risks. As we have reported on previously, OCIE incorporates data analytics into the vast majority of its examination initiatives to identify industry practices and/or registrants that appear to have elevated risk profiles.

Read the full client alert here.

California Federal Court Holds that U.S. Securities Laws Apply to Sponsored, Unlisted ADRs

The U.S. District Court for the Northern District of California held on January 4, 2017 that the federal securities laws apply to U.S. transactions in sponsored, but unlisted, American Depositary Receipts (“ADRs”) for a foreign issuer’s shares. The decision in In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation adds to the handful of decisions addressing whether U.S. transactions in sponsored, but unlisted, ADRs are covered by the federal securities laws. Most of those decisions have held that U.S. law applies to those transactions. The Volkswagen ruling also joins the majority of decisions in holding that the over-the-counter (“OTC”) markets are not considered to be “exchanges” for purposes of determining the scope of the federal securities laws. Continue Reading

Business Judgment Rule Dooms Home Depot Data Breach Shareholder Derivative Suit

Large-scale corporate data breaches have unfortunately become increasingly common events, posing a variety of challenges to the companies that suffer them. A few weeks ago, a district court in Georgia dismissed one of the first shareholder derivative actions that challenged the adequacy of a corporation’s data-breach prevention strategy. While that court held that the business judgment rule shielded the company’s actions, it remains to be seen whether that position becomes the majority one.

Read the full New York Law Journal article.

Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading

The Supreme Court confirmed today that the “personal benefit” required to establish a claim for insider trading can consist of making a gift of material, nonpublic information to a family member or friend and that an exchange of “something of a pecuniary or similarly valuable nature” is not required. The decision in Salman v. United States (No. 15-628) reaffirms the Court’s 1983 ruling in Dirks v. SEC and appears to undercut the Second Circuit’s 2014 decision in United States v. Newman, which had sought to tighten the nature of the personal-benefit requirement.

Read the full text of the client alert.

 

New York Court Upholds Insider-Trading Verdict

U.S. District Judge Jed Rakoff denied motions for judgment as a matter of law or for a new trial after a jury found the defendants civilly liable for insider trading. The decision in SEC v. Payton (S.D.N.Y. Nov. 29, 2016) held that the jury had sufficient evidence to conclude that the initial tipper of inside information had misappropriated it and passed it on in breach of a duty of confidence and in exchange for a personal benefit – and that the defendant remote tippees had consciously avoided learning of the tipper’s breach of duty.

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SEC and DOJ Charge Board Member with Trading on Inside Information . . . During a Board Meeting

On Friday, the SEC filed a complaint against James C. Cope, a former member of the Executive Committee of Pinnacle Financial Partners’ (“PFP”) board of directors, alleging that he engaged in insider trading.  The same day, Cope pleaded guilty to related insider trading charges brought by the U.S. Attorney’s office for the Middle District of Tennessee.  The government alleges that Cope personally traded on information about a pending acquisition that he learned during board meetings, in breach of his duties to the company.

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Dutch Collective Actions vs. Collective Settlements

As U.S. law has become less willing to entertain certain types of lawsuits on behalf of worldwide classes of plaintiffs, litigants have looked for other forums that might allow the prosecution – or at least the resolution – of claims on a global, classwide basis, ideally through opt-out classes. The Netherlands has emerged as an option in recent years because the Dutch Act on Collective Settlement of Mass Claims (the “WCAM”) authorizes the settlement, but not the prosecution, of classwide claims on an opt-out basis.

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