Securities Regulation

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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:

Earlier today, the SEC announced that it will adopt certain amendments to its rules of practice governing administrative proceedings. Faced with criticism from practitioners and the media regarding a perceived “home field advantage” in administrative proceedings, as well as various constitutional challenges to the ALJ process, the SEC has now approved amendments “intended to update the rules and introduce additional flexibility into administrative proceedings.”

A three judge panel in the Eleventh Circuit issued a ruling last Thursday in Securities and Exchange Commission v. Barry Graham et al., Case No. 14-13562, holding—contrary to several other circuits—that the remedy of disgorgement was effectively a forfeiture, and therefore subject to the standard five-year statute of limitations.  The SEC brought this case in 2013, seeking injunctive relief, disgorgement, and civil penalties against a group of individuals allegedly involved in a $300 million Ponzi scheme that ended in 2008.  The SEC’s complaint was initially dismissed by a Florida District Court as entirely time barred under the applicable statute of limitations (28 U.S.C. § 2462).  The Eleventh Circuit panel overturned the district court’s dismissal and reinstated the case, but only in part: the SEC could proceed with its claim for injunctive relief, but not for disgorgement or declaratory relief.

The U.S. Supreme Court’s decision yesterday in Merrill Lynch v. Manning clarified the scope of federal jurisdiction under the Exchange Act in certain important respects, but also left open critical issues that may arise in future cases.  Although the Court rejected federal jurisdiction in resolving the sole issue that was before it, the Court also stated that federal courts might well have jurisdiction over state law claims that “necessarily raise” substantial issues under federal law.

The decision, however, provides little guidance as to how that standard may be applied. Future cases involving securities trading, and the extensive body of federal regulation governing that activity, may well require future courts to determine that issue.

When an enforcement action for a violation of the Hart-Scott-Rodino Act is announced, chances are the matter has already come to a close – by the time the action becomes public, the agency and the parties usually have agreed upon financial penalties and other sanctions to be levied. But that is not the case for ValueAct Capital and its affiliated investment funds. After the Department of Justice filed a complaint against ValueAct on April 4, the company did not take the allegations lying down. Instead, it vowed to vigorously defend its position.

Cornerstone Research’s latest annual report discloses that the number and average size of securities class-action settlements increased in 2015 as compared to 2014.  Total settlement dollars rose to more than $3 billion – similar to the annual average for the prior five years, but a significant increase from 2014.

Cornerstone attributes the 2015 increase in settlements to three consecutive year-over-year increases in case filings. In addition, Cornerstone notes that more of those cases were larger cases, leading to eight “mega” settlements (of $100 million or more) in 2015.

The Second Circuit held yesterday that Item 303 of SEC Regulation S-K requires issuers to disclose only those trends, events, or uncertainties about which the issuer has actual knowledge, rather than those matters about which the issuer allegedly should have known.  The court’s decision in Indiana Public Retirement System v. SAIC, Inc. also reinforced prior holdings that generalized statements about high ethical standards and integrity constitute immaterial puffery and are therefore not actionable.

Recognizing the substantial risks inherent in many derivatives transactions, and the substantial leverage that is often imbedded in derivatives, the SEC last week announced its proposed new rules that would impose limits on the exposure to derivatives for investment companies, which include mutual funds, exchange-traded funds and closed-end funds, and create other regulatory requirements. Exposure to highly leveraged derivatives gave rise to large losses and many years of litigation in the wake of the 2008 financial crisis. The proposed rules represent an effort to reduce these types of losses in the next financial crisis, at least with regard to registered investment companies.

There are three principal aspects to the proposed rules.