The 10b-5 Daily

The New York Times had a long feature article in its Sunday edition on the breakup of Milberg Weiss Bershad Hynes & Lerach, widely recognized as the leading plaintiffs’ securities class action firm. The article discusses a number of topics, including the history of Milberg Weiss, the PSLRA, and the recent corporate scandals.

The Financial Times has an article on the U.S. Supreme Court’s decision to grant cert in the Dura Pharmaceuticals case and address the issue of loss causation. The article also discusses the potential impact on the research analyst cases.

Quote of note: “The Supreme Court is not expected to rule on the Dura case until 2005; an appeal in the Merrill Lynch case is due to begin in New York next month, although some lawyers believe that ruling may be put off until after the Supreme Court acts.”

Disclosure: The author of The 10b-5 Daily is quoted in the article.

Last year, there was a great deal of concern over the rising costs of directors and officers (“D&O”) insurance. According to an article in the Silicon Valley/San Jose Business Journal (via MSNBC), however, the pendulum has swung the other way. Rates began declining in April of this year and “now many companies are saving between 18 percent and 50 percent.” The article attributes most of the decline to rate competition caused by new underwriters entering the market. (Thanks to the Securities Law Beacon for the link.)

Quote of note: “Those getting the biggest break are stable, middle-market public companies, between $500 million and $1 billion in market cap. This group was hit as hard as anyone when D&O rates started increasing in 2001. Until rates started easing earlier this year, some companies saw increases as high as 300 percent.”

The Associated Press reports that the Class Action Fairness Act will not be voted on in the U.S. Senate this legislative year, becoming the “victim of election-year skirmishing between the two parties.” Proponents of the bill were unable to get enough votes to invoke cloture today after Senate Majority Bill Frist (R.-Tenn.) refused to allow consideration of various unrelated amendments.

To what extent are individual stock trading plans (entered into pursuant to SEC Rule 10b5-1) helpful in defending against private securities fraud claims? At least one court, the N.D. of Cal. in the Monterey Pasta case, has suggested that the use of a stock trading plan may allow a defendant to negate any inference of fraudulent intent based on his stock sales because the sales were pre-scheduled. As more company executives implement these plans, the issue is likely to gather steam.

The author of The 10b-5 Daily, along with one of his colleagues, has an article on the topic – “Individual Trading Plans Can Help Defend Securities Fraud Claims” – in the most recent edition of Compliance Week (July 7).

The U.S. Senate finally is debating the Class Action Fairness Act , but its passage may be derailed by unrelated amendments. The Associated Press and Reuters have reports on today’s action.

Quote of note (Associated Press): “Democrats are demanding a vote on raising the minimum wage from the $5.15 an hour to $7 over the next few years. They also want a vote on fighting global warming and on extending an assault weapon ban that is to expire this year. Hawaii’s two Democratic senators are pushing legislation that would recognize native Hawaiians as a governing entity. Republican Sen. Larry Craig of Idaho, with Sen. Edward Kennedy, D-Mass., are trying to add a proposal that would give temporary legal status to undocumented farm workers.”

In securities litigation, the wheels of justice can move slow. The Associated Press has an article on the securities class action against Cabletron Systems, Inc. in the D. of N.H. The complaint was originally filed in 1997 and alleges that Cabletron artificially inflated its stock price by overstating sales and failing to disclose problems with its products.
In a remarkable series of events, the case was dismissed in 1998 with leave to amend, reassigned several times after the original judge passed away, dismissed again in 2001, reinstated by the 1st Circuit in 2002 (in a well-known opinion), and has since been bogged down in discovery and procedural disagreements. In the interim, Cabletron has gone out of business.
Quote of note: “The two sides are currently waiting for a judge to settle procedural disagreements. Cabletron�s lawyers want to know the identity of the shareholders� anonymous sources. . . . The shareholders want permission to question under oath several of Cabletron�s top executives, a group that hasn�t been identified but is expected to include [Craig] Benson [a former Cabletron officer and the current governor of New Hampshire].”