August 24, 2005 · 7:38 pm

More On SLUSA Preemption

The Securities Litigation Uniform Standards Act of 1998 (“SLUSA”) preempts certain class actions based upon state law that allege a misrepresentation in connection with the purchase or sale of nationally traded securities. The defendants are permitted to remove the case to federal district court for a determination on whether the case is preempted by the statute. If so, the district court must dismiss the case; if not, the district court must remand the case back to state court.

Earlier this year, the U.S. Court of Appeals for the Seventh Circuit held in the Putnam Funds cases that the “in connection with” language in SLUSA merely “ensures that the fraud occurs in securities transactions rather than some other activity.” Accordingly, plaintiffs could not avoid SLUSA by limiting their proposed class to investors in the funds who merely held their shares, rather than purchased or sold them, during the class period.

The Seventh Circuit has now confirmed that holding under slightly different factual circumstances. In Disher v. Citigroup Global Markets Inc., 2005 WL 1962942 (7th Cir. Aug. 17, 2005), the court found that a class action suit brought in state court on behalf of customers of Salomon Smith Barney alleging that they were mislead by false stock ratings was subject to preemption. The proposed class definition “of all SSB customers who retained certain securities in reliance on SSB’s misrepresentations is no more narrowly drawn than the class definitions discussed in [the Putnam Funds decision].” Accordingly, the court ordered that the case be dismissed.

Holding: Reversed and remanded with instructions to vacate the remand order and dismiss the claims.

Leave a comment

Filed under Appellate Monitor

August 23, 2005 · 7:26 pm

Tax Deductible

The Associated Press has a column deploring the tax deductibility of securities class action settlements.

Quote of note: “For some companies, federal and state tax deductions will amount to as much as 40 cents on every dollar they pay to settle investors’ claims. And given all the major settlements announced this year from the likes of Time Warner Inc., Citigroup Inc., JPMorgan Chase & Co. and many others, that quickly adds up.”

Leave a comment

Filed under All The News That's Fit To Blog

August 19, 2005 · 8:18 pm

The Next Securities Class Action Trial?

The Star-Ledger (New Jersey) reports that a court in the D.N.J. is allowing parts of the securities class action pending against Bristol-Myers Squibb to proceed. The case relates to the FDA’s rejection, in April 2000, of a high blood pressure drug developed by the company. Although on Tuesday the court dismissed Bristol’s chief executive from the case and significantly narrowed the claims, the remaining claims could go to trial as early as this winter.

Quote of note: “In response to the judge’s action, Bristol and the lead plaintiff, Long View Collective Investment Fund, both claimed victory and vowed to go to trial. Pretrial discovery, which has taken four years, has generated nearly 4 million pages of documents and sworn statements from 44 witnesses and 23 experts, according to court papers.”

Leave a comment

Filed under Summary Judgment

August 19, 2005 · 8:05 pm

Indemnification & Advancement

The New York Law Journal has an overview (via law.com – free regist. req’d) of recent Delaware court decisions addressing the rights of corporate directors and officers to indemnification and the advancement of attorneys’ fees and litigation expenses.

1 Comment

Filed under All The News That's Fit To Blog

August 17, 2005 · 8:44 pm

What’s In Your Press Release?

The content of the disclosure that led to a stock price drop continues to be the focal point of post-Dura loss causation analyses. In Sekuk Global Enterprises v. KVH Industries, Inc., 2005 WL 1924202 (D.R.I. Aug. 11, 2005), the plaintiffs claimed that the company engaged in improper accounting practices related to the sales of a key product. The plaintiffs’ alleged losses occurred after the company issued a press release announcing reduced quarterly revenue based on lower than expected sales.

In their motion to dismiss, the defendants argued that “the press release and the resulting drop in the price of KVH common stock fails to establish loss caustion because the press release does not attribute the declining revenue to the sales of the [key product].” The court found, however, that the key product was a possible contributor to the lower than expected sales, even if it was not expressly discussed in the press release. Accordingly, the plaintiffs adequately plead loss causation.

Holding: Motion to dismiss denied (except for the claims based on a limited number of inactionable statements).

Leave a comment

Filed under Motion To Dismiss Monitor

August 16, 2005 · 9:07 pm

Out Of The Frying Pan

The Globe and Mail reports that investors are planning to bring a securities class action against the Canadian Imperial Bank of Commerce (“CIBC”). The proposed basis for the suit is noteworthy: the bank allegedly misled its investors over the cost of its settlement of the claims brought against it in the Enron securities class action. While CIBC had set aside a $300 million reserve for the settlement, it eventually settled two weeks ago for $2.4 billion.

Quote of note: “The precise size of the class action against CIBC has not been determined, but it will likely seek damages equivalent to the amount of the Enron settlement, which has helped to erase approximately $3.3-billion (Canadian) of CIBC’s market value in the past two weeks, the source said.”

Leave a comment

Filed under All The News That's Fit To Blog

August 12, 2005 · 7:02 pm

The Content Of The Disclosure

Following the Dura decision by the Supreme Court, lower courts continue to grapple with what constitutes a sufficient pleading of loss causation. In In re Cree, Inc. Sec. Litig., 2005 WL 1847004 (M.D.N.C. Aug. 2, 2005), Cree’s stock price dropped after its former CEO filed an individual lawsuit generally alleging that the company had engaged in securities fraud. The court found: (a) the individual lawsuit “did not disclose anything about transactions with five of the six companies Plaintiffs now claim were the subject of numerous misstatements and omissions;” and (b) as to the one transaction it did address, the complaint “merely attribute[d] an improper purpose to the previously disclosed facts.” In the absence of the disclosure of new facts, the court found that the transaction could not be the “proximate cause of the complained-of loss.”

Holding: Dismissed with prejudice. (The court also adopted the rigorous First Circuit standard for evaluating confidential witness statements and held that the plaintiffs failed to plead falsity with sufficient particularity.)

Quote of note: “It is doubtful that a general averment of fraud with no specific factual allegations could be deemed a ‘disclosure’ for purposes of determining whether some act or omission, previously concealed by a false representation, caused, upon revelation, a shareholder’s loss. While it is clear that a disclosure need not conform to any prescribed format, in must nevertheless satisfy at least a minimum standard of content. A disclosure must reveal new facts; a bald assertion of fraud is not sufficient.”

Disclosure: The author of The 10b-5 Daily represents the defendants in the Cree securities litigation.

Leave a comment

Filed under Motion To Dismiss Monitor

August 11, 2005 · 11:27 pm

Summer of Settlements

The Economist (August 11 edition) has an article discussing the rise in the value of securities class action settlements.

Quote of note: “America’s new Class Action Fairness Act seeks to curb frivolous class-action lawsuits against companies in areas such as product liability and labour law, mainly by redirecting more of them to federal courts and so denying lawyers scope to “forum-shop” among biddable state courts. But before companies declare victory, they should reflect that the law of unintended consequences can sometimes be stronger than the law itself. The Private Securities Litigation Reform Act of 1995 was meant to curb frivolous class-action suits within the field of securities law. But in forcing class-action lawyers to raise their game, it has contributed to a new era of big lawsuits and even bigger settlements.”

Leave a comment

Filed under Settlement

August 9, 2005 · 7:13 pm

Trials And Tribulations

The National Law Journal has a feature story on the recent increase in securities class action trials. The article suggests two possible reasons for the change: (1) an increase in the size of settlements, thus increasing the willingness of defendants to risk a trial; and (2) greater sophistication in how attorneys prepare for trial (e.g., using mock trials to hone their arguments).

Quote of note: “Ron Miller, an economist at NERA Economic Consulting in New York, suspects that the cases with bigger market losses are more likely to go to trial because of the cost-benefit analysis. Trials are expensive, and a small case is not worth anyone spending all that time or money in court. ‘My suspicion is that there have been so few of these trials that a few people have gotten the same idea at the same time; it is time to test the waters,’ he said.”

Leave a comment

Filed under All The News That's Fit To Blog

August 8, 2005 · 1:46 pm

PEC Solutions Opinion Published

The U.S. Court of Appeals for the Fourth Circuit has decided to publish its opinion in the PEC Solutions securities class action. As discussed in this post from last March, the opinion is the first post-PSLRA decision by the Fourth Circuit to address the common scienter allegations of insider stock sales and violations of generally accepted accounting principles (“GAAP”).

Disclosure: The author of The 10b-5 Daily argued the case before the appellate court on behalf of the defendants.

Leave a comment

Filed under Appellate Monitor