Public Companies Beware: Safe Harbor Protection Requires Thoughtful Warnings...
Public companies around the country labor under a misunderstanding: that the Private Securities Litigation Reform Act’s Safe Harbor protects them from liability for their guidance and projections if...
View ArticleFalsity is Fundamental: The Case for Emphasizing Arguments against Falsity
In defending a securities class action, a motion to dismiss is almost automatic, and in virtually all cases, it makes good strategic sense. In most cases, there are only four main arguments: The...
View ArticleIs the Biggest Name Really the “Safest” Choice for Securities Class Action...
When I moved my securities litigation practice to a regional law firm from biglaw, I made a bet. I bet that public companies and their directors and officers would be willing to hire securities...
View ArticlePractical Tips for Avoiding Securities Litigation, Understanding D&O...
In my last post of 2013, I thought I’d share some thoughts about how public companies can better protect themselves against securities claims – practical steps companies can take to help them avoid...
View ArticleHalliburton: Is the Fix as Basic as Alleging Omissions under Affiliated Ute?...
Even the most experienced securities defense attorneys regularly summarize Rule 10b-5(b) as creating a cause of action for “false or misleading statements and omissions of material fact.” Courts...
View ArticleIneffective Motions to Dismiss Erode the Power of the Reform Act
In 1995, public companies and their directors and officers received one of the greatest statutory gifts in the history of American corporate law: the Private Securities Litigation Reform Act. The...
View ArticleThe Root Cause of Skyrocketing Securities Class Action Defense Costs
Why do the costs of defending securities class actions continue to increase? Because of my writing on the subject (e.g. here and here), I’m asked about the issue a lot. My answer has evolved from...
View ArticleCorralling and Curtailing Merger Litigation: Lessons Learned from Past...
In the world of securities and corporate governance litigation, we are always in the middle of a reform discussion of some variety. For the past several years, there has been great focus on amendment...
View ArticleThe Future of Securities Class Action Litigation
Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs’ lawyers who file them, the defense counsel who defend them, the characteristics of the...
View ArticleFixing the Economics of Securities Class Action Defense: Nationwide Defense...
In my last D&O Discourse post, “The Future of Securities Class Action Litigation,” I discussed why changes to the securities litigation defense bar are inevitable: in a nutshell, the economic...
View ArticleSecurities Claims Based on Item 303 of Regulation S-K: It Just Doesn’t Matter
In January 2015, the Second Circuit held in Stratte-McClure v. Morgan Stanley, 776 F.3d 94 (2nd Cir. 2015), that Item 303 of Regulation S-K imposes a duty to disclose for purposes of Section 10(b),...
View ArticleReform Act Report Card: The Private Securities Litigation Reform Act, 20...
In 2015, the Private Securities Litigation Reform Act* turned twenty years old. Over my career as a securities litigator, I’ve seen both sides of the securities-litigation divide that the Reform Act...
View ArticleWhy I’m So Passionate about Omnicare
On March 24, 2015, the U.S. Supreme Court issued its opinion in Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318 (2015). My partner Claire Davis and I are...
View Article5 Wishes for Securities Litigation Defense: Greater Insurer Involvement in...
One of my “5 Wishes for Securities Litigation Defense” last month was for greater D&O insurer involvement in securities class action defense. This simple step would have extensive benefits for...
View Article5 Wishes for Securities Litigation Defense: Effective Use of the Supreme...
In this installment of the D&O Discourse series “5 Wishes for Securities Litigation Defense,” we discuss the third of five changes that would significantly improve securities litigation defense:...
View Article5 Wishes for Securities Litigation Defense: A Defense-Counsel Interview...
This post originally appeared on October 27, 2015, and is being republished as part of my series “5 Wishes for Securities Litigation Defense.” One of my “5 Wishes for Securities Litigation Defense”...
View Article5 Wishes for Securities Litigation Defense: Early Damages Analysis and Discovery
The fifth of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is to move securities class action damages expert reports and discovery ahead of fact discovery. This simple change...
View ArticleBe Careful What You Wish For, Part I: Does the Reform Act Need Reforming?
The history of securities and corporate governance litigation is full of wishes about the law that we later regret (or will), or are happy were not granted. Many of these are not obvious—and some will...
View ArticleBe Careful What You Wish For, Part II: Would Companies Be Better Off Without...
The villain in the fight against securities class actions is the fraud-on-the-market presumption of reliance established by the U.S. Supreme Court in 1988 in Basic Inc. v. Levinson, 485 U.S. 224...
View ArticleMyths & Misconceptions of Biotech Securities Claims: An Analysis of Motion to...
By Doug Greene, Genevieve York-Erwin and Michael Tomasulo I. Introduction Small, development stage biotech companies are widely considered to be attractive targets for securities actions given the...
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