Private Litigation

Here are some useful links to articles, cases or other sources on private securities litigation:

General Developments:

Guilty Plea Cannot Bar Indemnity Agreement (Delaware Business Court Insider)

Justices Scalia and Thomas Weigh in on Deference to SEC Interpretation of §10(b) (Straight Arrow November 11, 2014 Blog Post)

Scalia’s Deference Argument Could Have Dramatic Effects (Law 360 article by WilmerHale lawyers about questions raised by Justices Scalia and Thomas about Chevron deference to SEC views on section 10(b))

Materials on Halliburton:

Lower Courts Missing The Point Of Halliburton II (Law 360)

Amicus briefs filed on application of Halliburton in Best Buy case: SIFMA Best Buy BriefChamber of Commerce Brief in Best Buy

A Chance To Rein in Securities Actions (Wall Street Journal article by A. Vollmer)

Behind major U.S. case against shareholder suits, a tale of two professors (Reuters article by A. Frankel)

Supreme Court Chooses Avoidance and Confusion in Halliburton v. Erica P. John Fund (Straight Arrow June 26, 2014 Blog Post)

Halliburton Ruling Could Backfire for Defendants (Reuters article by A. Frankel)

Halliburton To Stoke Spats Over ‘Price Impact’ Standard (Law 360 article by E. Beeson)

New Discovery Stay Questions Arise Post-Halliburton (Law 360 article by G. Vanzura)

Judicial Competence in Statistics Will Govern the Future of Securities Class Actions (Straight Arrow August 5, 2014 Blog Post)

Prof. Charles Korsmo on the Supreme Court’s Halliburton Decision (Washington Post article by J. Adler)

Halliburton Decision To Test High Court Gift To Defendants (Law 360 article by E. Beeson)

Basic v. Levinson

Halliburton v. Erica P. John Fund

Materials on Omnicare:

Omnicare: Supreme Court Shoots Down 6th Circuit, but Adopts Amorphous Standard for Section 11 Opinion Liability (Straight Arrow Mar. 24, 2015 Blog Post)

Proskauer discusses Supreme Court’s Omnicare Decision, Clarifying Liability for Statements of Opinion in Registration Statements (CLS Blue Sky Blog)

A company’s opinion isn’t always a lie (Bloomberg)

Supreme Court Protects ‘Opinions’ From Suit — Unless They’re Contradicted By The Facts (Forbes)

High Court gives Omnicare another shot at stopping investor suit (Wall Street Journal)

Supreme Court Decision in Omnicare v. Laborers District Council Construction Industry Pensions Fund (Supreme Court vacates and remands 6th Circuit Omnicare Decision; see earlier post: Sixth Circuit Improperly Expanded Section 11 Liability for Non-Factual Statements in Omnicare)

Sixth Circuit Takes Wrong Turn in Cases Challenging Opinions (Article by C. Davis)

SEC Supreme Court Amicus Brief in Omnicare Case

Sixth Circuit Improperly Expanded Section 11 Liability for Non-Factual Statements in Omnicare (Straight Arrow Sept. 19, 2014 Blog Post)

6th Circuit Makes a Real “Muddle” in Third Omnicare Decision (Straight Arrow Oct. 14, 2014 Blog Post)

MHC Mutual Conversion Fund v. Sandler O’Neill

Justices Face Muddy Waters With Omnicare Middle Ground (Law 360 article by S. Russell-Kraft)

Omnicare Court Ponders Two Middle Paths: One Rocky, One Smooth (D&O Discourse article by C. Davis)

Transcript of Supreme Court Omnicare Argument (transcript of oral argument in Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, No. 13-435)

Materials on Loss Causation:

Ninth Circuit Misconstrues Loss Causation Requirement in Loos v. Immersion Corp. (Straight Arrow Sept. 16, 2104 Blog Post)

Limiting Rule 10b-5 Damages Claims (Cornerstone Research Report)

Materials on Section 11 Claims (Securities Act of 1933):

3 Insights To Clarify Securities Act Class Action Removal (Law 360 article by M. O’Connor)

Materials on Derivative Actions:

NY Court Flexes Muscles in Rejecting Bogus “Merger Tax” Settlement (Straight Arrow Jan. 9, 2015 Blog Post)

Commentary on Abusive State Law Actions Following M&A Deals (Straight Arrow Jan. 6, 2015 Blog Post)

How to Stop a Class-Action Scam (Wall Street Journal)

Delaware Chancery Court Provides Guidance on Fulfillment of Fiduciary Duties When Evaluating Antitrust Risk (Cleary Gottlieb)

No Auction Required – Delaware Supreme Court Affirms Board Flexibility under Revlon (White & Case)

Largest Derivative Lawsuit Settlements (D&O Diary blog by K. LaCroix)

Big pension funds mobilize against Delaware fee-shifting clauses (Reuters article by A. Frankel)

Losing a Shareholder Lawsuit Could Soon Become More Expensive (Wall Street Journal Law Blog Report)

Del. Attys Push To Shield Stock Cos. From Fee-Shifting Ruling (Law 360 article by K. Weinmann)

Will Fee-Shifting Put the Kibosh on Non-Meritorious Derivative Actions? (Straight Arrow May 25, 2014 Blog Post)

“Loser Pays”: Who Will Be The Biggest Loser? (Columbia Law School blog article by J. Coffee)

IPO Companies and Fee-Shifting Bylaws (D&O Diary blog by K. LaCroix)

Wrong turn?: Is the SEC looking to further expand its regulatory jurisdiction through the disclosure process? (The securitiesedge.com article by G. Schmidt)

The Duty to Maximize Value of an Insolvent Enterprise (Blog Post on Harvard Law School Forum on Corporate Governance and Financial Regulation)

Quadrant Structured Products v Vertin Chancery Court Opinion (Oct. 1, 2014) (addressing business judgment rule issues discussed in article immediately above)

A Defense Against Hostile Takeovers Develops a Downside (NY Times Dealbook article by S.D. Solomon)

Guns, Ordinary Business, and Shareholder Proposals: Reordering the Priorities of the SEC Staff (Part 1) (on shareholder proposals and the Wal-Mart case) (Race to the Bottom)

Guns, Ordinary Business, and Shareholder Proposals: Reordering the Priorities of the SEC Staff (Part 2) (Race to the Bottom)

Guns, Ordinary Business, and Shareholder Proposals:  Reordering the Priorities of the SEC Staff (Part 3) (Race to the Bottom)

Guns, Ordinary Business, and Shareholder Proposals:  Reordering the Priorities of the SEC Staff (Part 4) (Race to the Bottom)

The Business of Securities Litigation

NY Court Flexes Muscles in Rejecting Bogus “Merger Tax” Settlement (Straight Arrow Jan. 9, 2015 Blog Post)

Why Securities Litigation Is A Safe Moneymaker For Lawyers (Forbes article by D. Fisher)

The Root Cause Of Skyrocketing Defense Costs (Law 360 article by D. Greene)

Attorneys Tend To “Buy Themselves Off” In Class Deals, Judge Says (Law 360 article by S. Sundar) (This article reports on a talk by appellate Judge Alex Kozinski in a class action lawyers’ conference, in which he discussed, among other things, his opposition to a class action settlement in Klee v. Nissan North America, which involved the sale of allegedly defective Nissan Leak cars, in which he was a class member.  A copy of the opposition he filed to the settlement in that action, which is definitely worth reading, can be found here: Kozinski Class Action Settlement Opposition.)

Shareholder Litigation Without Class Actions and The “Semi-Circularity Problem” (Harvard Law School Form on Corporate Governance)

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