Counting Your Chickens

A couple of cases have taken an unexpected turn.

(1) Last April, Charles Schwab Corporation announced the preliminary settlement of the securities class action pending against the company in the N.D. of California. The case relates to the marketing and sale of a bond fund. Just as the settlement was headed for final approval, however, Schwab has decided to invoke the termination provision in the settlement agreement and proceed to trial. The issue is whether the settlement, despite Schwab’s belief that it provided a global resolution, allows federal securities class members residing outside of California to bring certain state law claims against the company. The D&O Diary has a post with all the details.

(2) Last month, the U.S. Supreme Court asked the government for its views on the Omnicare cert petition. The question presented was whether the heightened pleading standard of FRCP 9(b) should be applied to ’33 Act claims (i.e., strict liability/negligence claims based on misstatements in a prospectus or registration statement) that “sound in fraud.” The plaintiffs, however, did not wait to find out the government’s position. They have dismissed the cert petition and evidently will pursue their remaining claims back in district court.

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