The U.S. Supreme Court held that purchasers of shares sold to the public through a direct listing cannot sue under Section 11 of the Securities Act of 1933 unless they can trace their shares to an allegedly defective registration statement. The short, unanimous decision in Slack Technologies, Inc. v. Pirani (June 1, 2023) appears likely to increase the difficulty of pleading § 11 claims arising from direct listings, thereby requiring dissatisfied purchasers to resort to the Securities Exchange Act of 1934, which imposes stricter standards for liability. The Court declined to comment on Securities Act § 12(a)(2)’s requirements, leaving the issue for the Ninth Circuit on remand.

Background

In 2018, the New York Stock Exchange issued a rule, which the SEC later approved, allowing companies to go public and sell their shares on a national exchange through a “Selling Shareholder Direct Floor Listing,” known as a “direct listing.” Direct listings offer an alternative to the more common form of going public through an initial public offering.

In a traditional IPO, a company issues new shares under a registration statement that registers the shares with the SEC. Investment banks help the company market those shares and often commit to buy them at a predetermined price. To ensure that the stock price remains stable for some period after the offering, underwriters usually require a lock-up period that restricts pre-IPO shareholders from selling their existing, unregistered shares for several months.

In a direct listing under the 2018 NYSE rule, a company files a registration statement to register pre-existing shares before they can be sold to the public. Shares in a direct listing are sold directly to the public, without any underwriting. Because underwriters are not involved, direct listings do not impose lock-up periods restricting the sale of unregistered shares, so pre-existing shareholders are free to sell their unregistered shares. Accordingly, a direct listing makes both registered and unregistered shares available to the public as soon as the direct listing takes effect.

The Slack Case

Slack Technologies went public in 2019 through a direct listing. Slack filed a registration statement for a specified number of registered shares that it intended to offer. Because the offering was a direct listing rather than an IPO, holders of pre-existing, unregistered shares could also sell their shares into the market.

Over the following months, Slack allegedly experienced some business setbacks, and its stock price declined. A shareholder then sued under §§ 11, 12(a)(2), and 15 of the Securities Act, alleging misrepresentations in the registration statement and prospectus for the direct listing. The shareholder did not assert claims under the Exchange Act.

Section 11 applies to alleged misrepresentations or omissions in registration statements. Section 12(a)(2) applies to alleged misrepresentations or omissions in prospectuses or oral communications relating to a prospectus. Securities Act claims can be more attractive to plaintiffs than Exchange Act claims because the Securities Act imposes strict liability on the issuer without regard to scienter, while the Exchange Act requires proof of fraud. But because the burden of proof is easier under the Securities Act, those claims are available only to plaintiffs who can trace their shares to an allegedly false or misleading registration statement or prospectus.

The Slack defendants moved to dismiss the complaint, contending that the plaintiff had not established that he had purchased registered shares issued pursuant to the registration statement and prospectus, rather than unregistered shares that had entered the market through the direct listing at the same time as the registered shares. (This issue does not normally arise in the initial months after a traditional IPO, in which only the registered shares trade in the market while the unregistered ones remain locked up.) The District Court denied the motion to dismiss, and the Ninth Circuit – in a 2-1 decision – affirmed.

The majority ruled that the plaintiff could sue under §§ 11 and 12(a)(2) because the shares he had purchased – whether registered or unregistered – could not have been acquired without the issuance of the registration statement for the direct listing. That registration statement had enabled Slack and its investors to sell both registered and unregistered shares; conversely, neither type of security would have been available to the public without the registration statement. Accordingly, the majority believed that all shares traded after the direct listing took effect, regardless of their registration status, were effectively traceable to the registration statement.

The majority also expressed concern that, if § 11 were to apply only to registered shares in a direct listing, such an interpretation would essentially eliminate § 11 liability for false or misleading statements as to both registered and unregistered shares. Because Securities Act claims can pose a greater potential threat to issuers than do Exchange Act claims, the majority observed that “from a liability standpoint it is unclear why any company, even one acting in good faith, would choose to go public through a traditional IPO if it could avoid any risk of Section 11 liability by choosing a direct listing.”

Supreme Court’s Decision

The Supreme Court, in a decision by Justice Gorsuch, unanimously vacated the Ninth Circuit’s decision on § 11 and remanded the case for further consideration, including as to § 12(a)(2). The Court held that § 11’s text authorizes suit only when the security at issue was issued pursuant to a registration statement alleged to have been false or misleading.

The Court focused on § 11’s language: “In case any part of the registration statement . . . contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, any person acquiring such security” may sue (emphasis added). The Court acknowledged that § 11’s language was not entirely clear, because the word “such” in the phrase “such security” does not have a clear referent. But based on context, the Court concluded that “such security” must be a security issued under the challenged registration statement.

The Court rejected the Ninth Circuit’s position that even unregistered shares in a direct listing are traceable to the registration statement in that, “but for the existence of Slack’s registration statement for the registered shares, its unregistered shares would not have been eligible for sale to the public.” The Court opined that the plaintiff had “not explain[ed] what the limits of [this] rule might be, how we might derive them from § 11, or how any of this can be squared with the various contextual clues we have encountered suggesting that liability runs with registered shares alone.”

The Court did not address the Ninth Circuit’s policy concern that, if § 11 were to apply only to registered shares in a direct listing, companies would be encouraged to go public through direct listings rather than IPOs to avoid the risk of strict liability, and that § 11 liability for false or misleading statements would therefore be effectively eliminated.

But the Court did reject the plaintiff’s policy argument that a broader reading of “such security” in § 11 would accomplish the purposes of the Securities Act by expanding liability for false or misleading statements. The Court found it “equally possible” that Congress had sought “a balanced liability regime” under the Securities Act and the Exchange Act:  § 11 “allows a narrow class of claims [i.e., only for securities traceable to a registration statement] to proceed on lesser proof,” while the Exchange Act “requires a higher standard of proof to sustain a broader set of claims,” without any traceability requirement.

The Court did not reach the Ninth Circuit’s ruling as to § 12.  The Ninth Circuit had allowed the § 12 claim to proceed based on its analysis of the § 11 claim, but the Court found the § 11 analysis “flawed.” The Court therefore vacated the judgment as to the § 12 claim and remanded for reconsideration. The Court “express[ed] no views about the proper interpretation of § 12 or its application to the case”; nor did it “endorse the Ninth Circuit’s apparent belief that § 11 and § 12 necessarily travel together.” Instead, the Court “caution[ed] that the two provisions contain distinct language that warrants careful consideration.”

Implications

The unanimous Court’s textualist approach is perhaps not a surprise these days in a case involving statutory, rather than constitutional, interpretation. The Ninth Circuit’s majority had adopted a relaxed definition of traceability – a sort of “but-for traceability” construct – but the Supreme Court rejected that expansive approach, recognizing that “Congress remains free to revise the securities laws at any time, whether to address the rise of direct listings or any other developments.”

The Slack decision will likely increase the difficulty of pleading § 11 claims for securities issued in a direct listing, because purchasers might not be able to establish that they purchased registered shares, rather than unregistered ones. Purchasers might therefore need to resort to the Exchange Act, which would require them to prove that any alleged misstatements or omissions were made with scienter – and also to establish reliance and loss causation.

Whether a traceability requirement for § 11 claims in a direct listing will encourage issuers to go public through direct listings rather than through IPOs – as the Ninth Circuit majority feared – remains to be seen. While the potentially reduced liability risk of a direct listing might be attractive, companies interested in raising significant amounts of new capital might still find the traditional IPO route more realistic from a business perspective.

Attention will now turn to the Ninth Circuit, to see how it will treat the plaintiff’s § 12 claim. The Supreme Court’s decision requires a close textual reading of § 12, but the Court made clear that § 12 has its own “distinct language” and does not necessarily “travel together” with § 11. However, § 12(a)(2)’s language – which makes persons who offer or sell securities “by means of a prospectus or oral communication” liable to “the person purchasing such security from him” – might well require traceability to that prospectus or oral communication under the Slack decision’s rationale.

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Photo of Jonathan Richman Jonathan Richman

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and…

Jonathan Richman represents a variety of companies in securities class actions, shareholder derivative actions, internal investigations, SEC investigations, corporate governance, insider trading, D&O insurance and related matters. Many of those matters involve international elements, including representations of non-U.S. issuers in U.S. litigation and in landmark non-U.S. collective settlements under Dutch law in the Netherlands. Jonathan’s clients have included Hewlett Packard, Royal Dutch/Shell, Zurich Insurance Group, Halliburton, Waste Management, and Bed Bath & Beyond.

Jonathan writes extensively on topics ranging from securities and insider-trading law, corporate governance and fiduciary issues to non-U.S. law on collective actions. His articles have been published in major legal publications.

Jonathan is the past co-head of the Firm’s Securities Litigation Group.

Class Action and SEC Enforcement Experience

  • Royal Dutch/Shell
  • Global Crossing
  • Waste Management
  • Zurich Insurance Group
  • Vestas Wind Systems A/S (class action only)
  • JBS S.A. (class action only)
  • Henry Schein, Inc. (class action only)
  • YRC Worldwide Inc. (class action only)
  • Bed Bath & Beyond Inc. (class action only)
  • Roka Bioscience, Inc. (class action only)
  • Fifth Street (class action only)
  • Vida Longevity Fund (class action only)
  • Former CEO of Lumber Liquidators (class action only)
  • Individual defendant in Third Avenue securities class actions
  • American General (class action only)
  • Metropolitan Life (class action only)
  • New York Life (class action only)
  • Leucadia/Jefferies merger litigation (class action only)
  • Realty Income/American Realty merger litigation (class action only)
  • ARCP/ARCT III merger litigation (class action only)
  • Aberdeen/Artio merger litigation (class action only)
  • PhotoMedex/LCA-Vision merger litigation (class action only)
  • RCS Capital/Summit Financial merger litigation (class action only)
  • First American/First Advantage merger litigation (class action only)
  • SEC inquiry involving CMBS servicing
  • SEC inquiry involving issuer’s confidentiality notice for internal investigations
  • Various SEC, CFTC, and FINRA inquiries involving trading issues

Shareholder Derivative Litigation

  • Hewlett-Packard
  • Royal Dutch/Shell
  • Brocade Communications Systems, Inc.
  • Halliburton Company
  • Waste Management, Inc.
  • Henry Schein, Inc.
  • YRC Worldwide Inc.
  • Bed Bath & Beyond Inc.
  • Fifth Street
  • Vida Longevity Fund
  • Former CEO of Lumber Liquidators
  • Individual defendant in Third Avenue derivative litigation

Department of Justice Proceedings

  • Royal Dutch/Shell
  • Global Crossing
  • Property and casualty insurers

Miscellaneous

  • Advising outside directors of for-profit educational institution on litigation and regulatory investigations
  • Providing advice and training sessions for clients on insider-trading issues
  • Representing Financial Oversight and Management Board for Puerto Rico in pending litigation arising from Puerto Rico bankruptcy

Publications

  • Author, “Court Preliminarily Enjoins Florida’s ‘Stop Woke Act,’” National Law Review (Aug. 22, 2022)
  • Author, “Blockchain Meets Morrison:  Court Rejects Blockchain Class Settlement Because of Concerns About Adequacy of Representation,” National Law Review (Aug. 16, 2022)
  • Author, “Delaware Supreme Court Allows Use of ‘Reliable’ Hearsay to Support Books-and-Records Demand,” National Law Review (July 20, 2022)
  • Author, “Divided Delaware Supreme Court Decision Highlights Issues About Director Independence in Derivative Actions,” National Law Review (June 30, 2022)
  • Author, “Second Circuit Reverses Dismissal of Securities Claim Alleging Failure to Disclose SEC Investigation,” National Law Review (May 25, 2022)
  • Author, “Ninth Circuit Upholds Delaware-Forum Bylaw That Precludes Assertion of Federal Proxy Claim,” National Law Review (May 13, 2022)
  • Co-author, “SEC Defeats Motion to Dismiss Insider Trading Complaint Alleging Novel ‘Shadow Trading’ Theory, The Corporate Lawyer, vol. 59, no. 3 (Feb. 2022), at 1
  • Co-author, “Seventh Circuit Reverses Dismissal of Derivative Action Based on Forum Clause as Applied to Federal Claim,” National Law Review (Jan. 21, 2022)
  • Author, “California Federal Court Holds U.S. Securities Laws Inapplicable to Unsponsored, Unlisted ADR Transaction Preceded by Purchase of Common Stock Outside the U.S.,” National Law Review (Jan. 10, 2022)
  • Co-author, “SEC Pursues ‘Shadow Trading’ Insider Trading Case,” Corporate Governance Advisor, vo. 29, no. 6 (Nov./Dec. 2021), at 29
  • Co-author, “SEC Investor Advisory Committee Considers Recommendations to Tighten Rules for Insiders’ Trading Plans,” National Law Review (Sept. 7, 2021)
  • Author, “Second Circuit Holds that Accurately Reported Financial Statements Are Not Actionable and that Materiality Has a Half-Life,” National Law Review (Aug. 27, 2021)
  • Author, “First Circuit Adopts Prevailing Standard for Applicability of Federal Securities Laws to Foreign Investors, But Rejects Second Circuit’s Narrower Test,” National Law Review (May 11, 2021)
  • Author, “Second Circuit Upholds Insider Trading Conviction, Finding Sufficient Confidentiality Duty and Personal Benefit,” National Law Review (Apr. 7, 2021)
  • Co-author, “Second Circuit Reaffirms that Federal Securities Laws Do Not Apply to Predominantly Foreign Transactions,” National Law Review (Jan. 26, 2021)
  • Author, “Corporate Scienter Requires Link Between Employees with Knowledge and the Alleged Misstatements,” National Law Review (May 26, 2020)
  • Author, “Delaware Supreme Court Rules that Corporate Charters Can Require Litigation of Federal Securities Act Claims in Federal Court,” National Law Review (Mar. 18, 2020)
  • Author, “California Federal Court Holds that U.S. Securities Laws Apply to Unsponsored, Unlisted ADRs,” National Law Review (Jan. 30, 2020)
  • Author, “Second Circuit Holds that a ‘Personal Benefit’ Is Not Required for Insider Trading Under Criminal Securities Statute,” National Law Review (Jan. 2, 2020)
  • Co-author, “When Passive Investors Drift into Activist Status,” CCR Corp. Deal Lawyers (Nov.-Dec. 2019)
  • Author, “Delaware Supreme Court Rejects Presumption of Confidentiality for Books-and-Records Productions,” National Law Review (Aug. 8, 2019)
  • Author, “Supreme Court Raises Questions About Private Rights of Action Under § 14 of Securities Exchange Act,” National Law Review (Apr. 24, 2019)
  • Author, “Second Circuit Rejects Securities Claims Based on Generic Statements About Ethics and Compliance,” Securities Reform Act Litigation Reporter, vol. 47, no. 1 (April 2019), at 54
  • Author,” Supreme Court Holds that Persons Who Do Not ‘Make’ Misstatements Can Nevertheless Be Liable for Other Securities-Fraud Violations,” National Law Review (Mar. 29, 2019)
  • Author, “The importance of documenting corporate actions: Delaware Supreme Court requires production of emails in books-and-records request,” Westlaw Journal Mergers & Acquisitions (Feb. 2019)
  • Author, “First Appellate Decision Holds that SEC Can Bring Extraterritorial Enforcement Action Based on Conduct or Effects in United States,” National Law Review (Jan. 24, 2019)
  • Author, “Insider Trading for Dummies: Judge Rakoff Tries to Simplify the Law,” National Law Review (Dec. 10, 2018)
  • Co-author, “Fortis Case Confirms Viability of Dutch Settlement Law,” Law360 (July 27, 2018) (with Professor Ianika Tzankova)
  • Author, “Second Circuit Again Holds That Tipper/Tippee Liability Can Arise from a Gift of Inside Information Even Without a Close Personal Relationship,” National Law Review (June 29, 2018)
  • Author, “Supreme Court Rules That Federal Courts Are Not Bound to Give Conclusive Effect to Foreign Governments’ Statements About Their Laws,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Prohibits Stacking of Successive Class Actions Beyond Limitations Period,” National Law Review (June 14, 2018)
  • Author, “Supreme Court Rules That State Courts Can Adjudicate Class Actions Under the Securities Act of 1933,” Securities Arbitration Commentator (April 11, 2018)
  • Author, “Fourth Circuit Upholds Disclosure of Government Subpoena as Evidence of Loss Causation,” National Law Review (Feb. 24, 2018)
  • Author, “Revisiting Preclusion Principles in Derivative Actions,” Law360 (July 28, 2017)
  • Author, “Second Circuit Requires Increased Scrutiny of Securities Class Actions Involving Off-Exchange Transactions,” National Law Review (July 8, 2017)
  • Author, “Dutch Court Denies Approval of Collective Settlement Unless Changes Are Made as to Allocation of Compensation and Fees,” National Law Review (June 19, 2017)
  • Author, “Utah Court Bites Bullet with Dodd-Frank Jurisdiction Ruling,” Law360 (Apr. 13, 2017)
  • Author, “Non-Use Agreement Need Not Precede Disclosure of Confidential Information,” National Law Review (March 21, 2017)
  • Author, “Watch the Napkin: First Circuit Affirms Insider-Trading Conviction,” National Law Review (Feb. 28, 2017)
  • Author, “Dueling Shareholder Class Actions Could Raise Due Process Issues,” Law360 (Jan. 30, 2017)
  • Author, “Supreme Court Reaffirms Personal-Benefit Requirement for Insider Trading,” WestLaw Journal: Securities Litigation & Regulation and WestLaw Journal: White-Collar Crime (Dec. 22, 2016)
  • Author, “Rakoff Addresses Tippee Liability in SEC v. Payton,” Law360 (Dec. 2, 2016)
  • Author, “Dutch Collective Actions vs. Collective Settlements,” National Law Review (Oct. 18, 2016)
  • Author, “Judgment Recognition and the Reach of US Securities Laws,” Law360 (Oct. 3, 2016)
  • Author, “Executives Face SOX Disgorgement Uncertainty After Jensen,” Law360 (Sept. 8, 2016)
  • Author, “Wine, Steak and a Taste of the ‘Personal Benefit’ Tension,” Law360 (June 6, 2016)
  • Author, “Proskauer Explains Supreme Court’s Clarification of Jurisdiction Under Securities Exchange Act,” The CLS Blue Sky Blog (May 24, 2016)
  • Author, “Second Circuit Reinforces Liability Standard in Securities Cases Based on Statements of Opinion,” Business Law Today (Mar. 2016)
  • Author, “The Netherlands Returns as a Collective Settlement Forum,” Law360 (Mar. 15, 2016)
  • Author, “How Morrison v. Australia Bank Was Applied in Petrobras,” Law360 (Feb. 16, 2016)
  • Author, “New York Court Certifies Classes in Petrobras Securities Litigation,” National Law Review (Feb. 3, 2016)
  • Author, “Delaware Court of Chancery Rejects Another Disclosure-Only M&A Settlement and Warns of ‘Increasingly Vigilant’ Scrutiny,” National Law Review (Jan. 25, 2016)
  • Author, “What To Expect from High Court’s New Insider Trading Case,” Law360 (Jan. 19, 2016)
  • Author, “Second Circuit Upholds Common-Interest Privilege for Borrower’s Sharing of Legal Advice with Consortium of Lenders,” Transaction Advisors (Dec. 2015)
  • Author, “What Jarkesy Means for SEC Admin Court Challenges,” Law360 (Sept. 30, 2015)
  • Author, “A Farewell to Alms? Peppercorn Settlements of M&A Litigation,” National Law Review (Sept. 21, 2015)
  • Author, “Seventh Circuit Rejects Court Challenge to Pending SEC Administrative Proceeding,” com (Aug. 27, 2015)
  • Author, “9th Circuit Rebuffs Newman,” Law360 (July 8, 2015)
  • Author, “Proskauer Discusses Supreme Court’s Omnicare Decision, Clarifying Liability for Statements of Opinion in Registration Statements,” The CLS Blue Sky Blog (Mar. 24, 2015)
  • Author, “U.S. Appeals Court Rejects Bright-Line Test for Extraterritorial Reach of U.S. Securities Laws,” Bloomberg BNA World Securities Law Report, vol. 20, no. 9 (Sept. 2014)
  • Author, “Whistleblower Anti-Retaliation Provision Does Not Apply Outside the U.S.,” Westlaw Journal Securities Litigation & Regulation, vol. 20, issue 9 (Sept. 4, 2014)
  • Author, “So Much for Bright-Line Tests on Extraterritorial Reach of US Securities Laws?,” Harvard Law School Forum on Corporate Governance and Financial Regulation (Sept. 2, 2014)
  • Co-author, “Defending Directors: Cram Sheet,” Wolters Kluwer Law & Business (October 23, 2012)
  • Author, “Delaware Chancery Court Issues Decision on Collateral Estoppel in Derivative Suits,” Westlaw Journal Delaware Corporate, vol. 26, issue 25 (June 25, 2012)
  • Author, “SEC Issues Report on Extraterritorial Reach of U.S. Securities Laws,” VCExperts on-line publication (June 2012)
  • Co-author, “Fraud? Foreign Purchase? Forget It! ‘Foreign-Cubed’ and Other Foreign-Issuer Cases After Morrison,” of Secs. & Commodities Reg., vol. 44, no. 4 (Feb. 23, 2011)
  • Author, “Supreme Court Clarifies Statute of Limitations in Securities-Fraud Actions,” Derivatives Financial Prods. Rpt., 11, no. 10, at 23 (June 2010)
  • Author, “Transnational Class Actions and Judgment Recognition,” Class Action Litigation Report (June 25, 2010)
  • Co-author, “Pushing the Limits of U.S. Securities Laws: ‘Foreign-Cubed’ (‘F-Cubed’) Cases,” 42 SRLR 10 (March 8, 2010)
  • Co-author, “Assignees Have Discovery Obligations When Asserting Assignors’ Claims,” Journal of Payment Systems Law (June/July 2005)
  • “Punitive Damages: Past, Present and Future,” International Commercial Litigation (July/August 1995)
  • Co-author and editor, Takeovers: Attack and Survival (1987)
  • Co-author, “New Life for State Takeover Statutes?,” New York Law Journal (July 27, 1987)
  • Co-author, “Damages in Defamation Actions,” Damages in Tort Actions (1985)
  • “Facial Adjudication of Disciplinary Provisions in Union Constitutions,” Yale Law Journal (1981)

Presentations

  • Practising Law Institute: “ESG 2022: What It Means for Boards, Management, and Counsel” (June 1, 2022) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2021: What It Means for Boards, Management, and Counsel” (webcast, June 24, 2021) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG 2020: What It Means for Boards, Management, and Counsel) (webcast, July 24, 2020) (full-day program; program co-chair and panel chair)
  • Practising Law Institute: “ESG and Promoting Corporate Sustainability” (New York, June 25, 2019) (full-day program; program chair and panel chair)
  • The Mason Judicial Education Program, Symposium for Judges: Securities Class Action Litigation (Arlington, VA, May 5, 2019)
  • The Mason Judicial Education Program, Symposium for Judges: The Economics of Corporate & Securities Law (San Diego, April 12-14, 2018)
  • ABA Section of Litigation: “Recent Developments in Securities Class Actions” (webinar, May 11, 2017)
  • Professional Liability Underwriters Society D&O Symposium: “Behaving Badly: The Non-U.S. Corporate Scandal Wave” (New York, February 9, 2017)
  • New York State Bar Association International Section: “Hot Topics in Cross-Border Securities Litigation” (São Paulo, October 16, 2015)
  • Proskauer Hedge-Fund Breakfast Seminar on Insider Trading (New York, Feb. 5, 2015)
  • CLE International’s 9th Annual Class Action Conference: “Collective Proceedings Abroad: Evolving Approaches & Attitudes” (Washington, D.C., October 2013)
  • Practising Law Institute: “Handling a Securities Case: From Investigation to Trial and Everything in Between” (New York, April 2012)
  • Institutional Investor Educational Foundation: Corporate Governance Roundtable Forum (New York, December 2011)
  • Institutional Investor Educational Foundation Amsterdam Roundtable: “The Netherlands and the Future of European Securities Litigation” (The Hague, September 2011)
  • Summer Institute on Law & Government, American Univ. Washington College of Law: “Securities Class Actions – An Update” (Washington, D.C., June 2010)
  • ABA Section on Litigation Annual Conference: “Global Class Actions: Lasting Peace or Ticking Time Bombs?” (New York, April 2010)