May 14, 2003 · 3:36 pm

Settling for More Than Money

The big news today is the securities class action settlement by Hanover Compressor Co., a natural gas compression services company based in Houston, Texas. In addition to compensating investors with a combination of cash, stock, and debt (worth around $80 million according to press reports), Hanover agreed to a series of corporate governance reforms above and beyond anything required by Sarbanes-Oxley or other federal securities laws. Notably, Hanover will: (1) change its outside auditing firm every five years; (2) ensure that two-thirds of its board consists of independent directors; and (3) canvass shareholders holding more than 1% of the company’s stock for a list of nominees for two new independent director positions on its board.

The settlement still has to be approved by the U.S. District Court for the Southern District of Texas. Milberg Weiss is lead plaintiffs’ counsel and has issued a press release. Numerous wire services and newspapers have run articles, including Reuters, USA Today, and the Houston Chronicle.

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May 12, 2003 · 1:00 pm

Suing Your Broker

The May 12 issue of Business Week provides advice on bringing a claim against your broker for touting technology stocks. The article notes that the analyst fraud settlement will provide valuable evidence for the related class actions that have been brought against the major brokerage firms. Addition: On the other hand, the experts quoted in a related Reuters article do not think legal action based on this evidence will result in much of a recovery.

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May 9, 2003 · 4:48 pm

34 and Counting

An article in today’s Washington Post discusses the accounting fraud at U.S. Foodservice, the Columbia, MD subsidiary of Royal Ahold NV, and notes that 34 securities class actions have been filed. A hearing has been scheduled for May 29 in Santa Fe, N.M. to determine where the cases should be consolidated.

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May 9, 2003 · 3:45 pm

S.D.N.Y. On Materiality

Only one recent case to report on, but it is fairly interesting:

In re Allied Capital Corp. Sec. Litig., 2003 WL 19641843 (S.D.N.Y. April 25, 2003) involved allegations that Allied Capital’s “flawed valuation policy” caused it to overvalue its investments in nine companies and materially misstate those values in its public filings. An outside hedge manager publicly questioned Allied’s valuation practices, resulting in a stock price decline from $25.99 to $23.20. Within a week, however, the stock had regained most of that loss.

The court found that plaintiffs had failed to adequately plead that defendants made fraudulent or misleading statements because: (1) “plaintiffs have not sufficiently pled that Allied’s valuation policies resulted in its overvaluing of some investments;” and (2) “plaintiffs do not allege that Allied followed different valuation policies than those that it described in its public filings, or that Allied concealed any relevant information about the companies in which it invested.”

More interestingly, the court determined that the alleged misstatements were immaterial. (According to 2d Cir. precedent, for a court to determine on a motion to dismiss that the alleged misstatement or omission is immaterial it must be “so obviously unimportant to a reasonable investor that reasonable minds could not differ on the question of [its] importance.”) The court gave three reasons for its ruling.

First, the investments in the nine companies represented just over 10% of Allied’s portfolio. Given that Allied’s public disclosures clearly stated that the valuation process was inexact, “no reasonable investor could consider the fact that a small proportion of Allied’s holdings might have values that were debatable (which is all the Complaint alleges) to be material.”

Second, the stock price declined less than 10%, and then quickly rebounded, negating any inference of materiality.

Finally, “any number of factors unrelated to the alleged overstatements could have contributed to the decline in price on May 16,” including the statements from the hedge fund manager, which might be untrue.

Holding: Motion to dismiss granted.

Quote of note: “In addition, the stock price’s recovery, in the face of a general decline in the market, negates any inference of materiality, because it indicates that investors quickly determined that the ‘new’ information was not material to their investment decisions.” Does that mean that a quick recovery in the stock price will always lead to the conclusion that the alleged misstatements are immaterial?

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May 8, 2003 · 12:36 pm

Getting Rid of the PSLRA

Congressman Bart Stupak (D., Mich.) is leading the charge in Congress to rescind the PSLRA and also would like to reintroduce the concept of aiding and abetting liability for private Rule 10b-5 litigation (after its rejection under current law by the U.S. Supreme Court in the Central Bank case). Stupak cites the Enron scandal as the motivating factor behind the bill. His proposed legislation deserves a serious review and I will try to provide one later.
Quote of note: “My bill, the ’Shareholder and Employee Rights Restoration Act of 2002,’ was introduced to strip away the shield that  PSLRA and SLUSA placed around companies and their advisors and accountants.” 

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May 7, 2003 · 2:36 pm

What Does Not Kill A Law Firm, Makes It Stronger

There is an interesting article in the April 24, 2003, issue of the New York Law Journal on Milberg Weiss Bershad Hynes & Lerach, the leading plaintiffs’ securities class action firm. According to a recent study, last year Milberg Weiss participated as lead counsel in more than 60% of the securities class actions filed.

Quote of note: “By taking aim at some classic Milberg Weiss practices, the PSLRA inadvertently benefited the larger plaintiffs’ firms, they say. The result has been a much more concentrated securities plaintiffs’ bar dominated by big firms. As the bar’s 800-pound gorilla, Milberg Weiss benefited most of all.”

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May 6, 2003 · 10:24 pm

Frequently Asked Questions About The 10b-5 Daily

1. Who writes The 10b-5 Daily?

Lyle Roberts is the author of The 10b-5 Daily. The rest of the time, I am a partner with Cooley LLP in the firm’s Washington, D.C. office. My practice consists of defending public corporations and their officers in class actions, derivative actions, merger and acquisition litigation, and SEC enforcement actions. I also counsel clients with respect to securities regulatory issues.

I am a graduate of The Johns Hopkins University (B.A., M.A.) and the University of Chicago Law School (J.D.). Following law school, I clerked on the U.S. Court of Appeals for the Fourth Circuit for Judge Donald S. Russell. I have been widely published on securities law topics, with articles in The Wall Street Journal, The New York Law Journal, Legal Times, Insights, Compliance Week, Legal Backgrounder (The Washington Legal Foundation), and the University of Chicago Law Review, and quoted in various media reports. I am a frequent moderator/panelist for Practicing Law Institute (“PLI”) programs on securities litigation, including acting as the co-chairman for the anual Handling a Securities Case program.

2. How long has The 10b-5 Daily been in existence?

The first post was in May 2003 at a predecessor website. In August 2003, The 10b-5 Daily moved to its present location at http://www.the10b-5daily.com.

3. Why is it called The 10b-5 Daily?

Rule 10b-5 is a rule promulgated by the Securities and Exchange Commission (“SEC”) pursuant to Section 10(b) of the Securities Exchange Act of 1934. It prohibits, among other things, the making of misleading statements or omissions of material fact in connection with the purchase or sale of any security. It is the leading statutory basis for private securities fraud claims.

4. What does The 10b-5 Daily cover?

The 10b-5 Daily is devoted to tracking news and events relating to securities class actions brought on behalf of investors against companies, with an emphasis on judicial developments. These cases typically allege that the company, through its officers and/or directors, made false or misleading statements to the market that artificially inflated the company’s stock price. The class consists of investors who purchased the company’s stock during the class period at the artificially inflated price.

Although the author of The 10b-5 Daily represents the defendants in these cases, the weblog is designed to be a general resource and cooperative effort. Many of The 10b-5 Daily’s readers and contributors are attorneys who work in plaintiffs’ firms.

5. Why does The 10b-5 Daily mostly discuss motions to dismiss and settlements?

Simply put, that’s where the action is in this area of the law. If a securities class action is not dismissed, it is usually settled, in large part because of the enormous costs, and attendant risks, of bringing these cases to trial. Therefore, the motion to dismiss is often the key moment for a securities class action.

6. What is the Private Securities Litigation Reform Act?

The Private Securities Litigation Reform Act of 1995 (“PSLRA” – see the links in the right column of The 10b-5 Daily’s main page) was enacted by Congress to deter abusive lawsuits and encourage the voluntary disclosure of information by corporate issuers. To that end, Congress established heightened pleading requirements for securities fraud, an automatic stay of discovery in securities fraud cases pending the resolution of a motion to dismiss, a system for selecting a lead plaintiff in a case brought as a class action, and a safe harbor from liability for forward-looking statements. Many of the cases profiled in The 10b-5 Daily discuss the application of this legislation.

7. Do you need to be a lawyer to understand the posts on The 10b-5 Daily?

Let’s hope not. Most of the readers of The 10b-5 Daily are lawyers, but there are also a significant number of investors, corporate officers, insurance professionals, and others who visit regularly. The posts tend to assume a basic understanding of the law surrounding securities fraud. Much of that basic understanding, however, can be gleaned from this FAQ section and the materials linked in the right column of The 10b-5 Daily’s main page.

8. Does The 10b-5 Daily summarize every aspect of the material it discusses?

The 10b-5 Daily is designed to act as a filter for items related to securities class action litigation. Readers should not assume that the summaries of articles, cases, legislation, or settlements are complete (or even particularly thorough in what they do cover). The focus here is on what the author of The 10b-5 Daily finds interesting, which may be entirely different from what another person who reads the same material would find interesting. See the “Legal Disclaimer” section in the right column of The 10b-5 Daily’s main page for more on this topic.

9. Can I receive updates from The 10b-5 Daily via e-mail?

Yes.

10. What is The 10b-5 Daily’s policy on information e-mailed to it?

Like many weblogs, The 10b-5 Daily has an opt-out for content, opt-in for recognition policy. Anything e-mailed to The 10b-5 Daily may be used on the site unless the sender affirmatively requests that the information be kept confidential. The 10b-5 Daily will only disclose the source of the information, however, if the sender affirmatively states that he/she will accept public recognition for the contribution.

11. Why are readers of The 10b-5 Daily unable to post comments?

A public discussion area must be constantly monitored to remove spam comments. The author of The 10b-5 Daily would rather spend his limited free time posting. That said, readers are strongly encouraged to send in comments, links, or any other information of interest to The 10b-5 Daily via e-mail at “the10b5daily at hotmail dot com.” Many of the posts on The 10b-5 Daily are the result of reader-submitted materials.

12. Why do some posts on The 10b-5 Daily have a “disclosure” line?

The 10b-5 Daily discloses when its author has had direct involvement in the material being discussed (typically when he represents a party to the litigation or has been quoted in an article). The mere involvement of his law firm or any of its attorneys will normally not cause a disclosure line to be added to a post.

13. Can I use the material found on The 10b-5 Daily?

The 10b-5 Daily and the10b-5daily.com are trademarks belonging to Lyle Roberts. All original material appearing on The 10b-5 Daily is copyright 2003-2014 by Lyle Roberts. All rights reserved. Readers may quote, cite, or link to this copyrighted material, but credit must be given to the author, typically by referring to “The 10b-5 Daily” or “Lyle Roberts” and, if possible, including a link to the weblog or the post’s specific URL. The author of The 10b-5 Daily reserves the right to rescind this permission at any time and for any reason.

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