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Ninth Circuit rejects attempt to expand scope of short-swing profit insider liability claims under Section 16(b)
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- August 27 2009
In Dreiling v America Online, Inc., 2009 WL 2516325 (9th Cir. May 5, 2009), the United States Court of Appeals for the Ninth Circuit held that Section 16(b) of the Securities Exchange Act of 1934 which, broadly speaking is intended to “prevent corporate insiders from exploiting their access to information not generally available to others” by requiring disgorgement of short-swing profits from trading in securities did not “provide a private litigant with another means of litigating securities fraud” that are prohibited under Section 10(b) and Rule 10b-5
Ninth Circuit holds that safe harbor provision of the reform act applies to forward-looking statements accompanied by cautionary language and forward-looking statements made without actual knowledge of falsity
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- July 23 2010
In In re Cutera Securities Litigation, 2010 WL 2595281 (9th Cir June 30, 2010), the United States Court of Appeals for the Ninth Circuit concluded that the Private Securities Litigation Reform Act’s (“Reform Act”) safe harbor provision, 15 U.S.C. 78u-5, protects forward-looking statements accompanied by meaningful cautionary language” and forward-looking statements in the absence of meaningful cautionary language not made with “actual knowledge” that the statement was false or materially misleading when made
Second Circuit holds that no private right of action exists under Section 304 of the Sarbanes-Oxley Act
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- October 8 2010
In Cohen v Viray, 2010 WL 3785243 (2d Cir Sept 30, 2010), the United States Court of Appeals for the Second Circuit held that no private right of action exists under Section 304 of the Sarbanes Oxley Act, 15 U.S.C. 7243 (“Section 304”), to recover from chief executive officers (“CEOs”) and chief financial officers (“CFOs”) any bonus or similar compensation, or any profits realized from stock sales, they may have received during the twelve-month period prior to a restatement of company financial statements due to misconduct
Ninth Circuit reverses dismissal of securities fraud class action where complaint was "loaded with specific allegations" to support a strong inference of scienter
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- May 2 2011
In New Mexico State Investment Council v. Ernst & Young LLP, 2011 WL 1419642 (9th Cir. Apr. 14, 2011), the United States Court of Appeals for the Ninth Circuit reversed the dismissal of securities fraud claims against an independent accountant, holding that the complaint pleaded particularized facts giving rise to a strong inference that the auditor acted with scienter when it certified the financial statements of its client, Broadcom Corporation (“Broadcom”
Second Circuit addresses materiality at the pleadings stage in two recent decisions
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- August 18 2011
In two recent decisions issued less than one week apart, Hutchison v. Deutsche Bank Securities Inc., 2011 WL 3084969 (2d Cir. July 26, 2011), and SEC v. Gabelli, 2011 WL 3250556 (2d Cir. Aug. 1, 2011), the United States Court of Appeals for the Second Circuit addressed motions to dismiss securities law claims based upon the immateriality of the defendants’ alleged misstatements or omissions
Second Circuit addresses hybrid convertible securities and the "debt previously contracted" exceptions to Section 16(b) of the Securities Exchange Act of 1934
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- July 25 2012
In Analytical Surveys, Inc. v. Tonga Partners, L.P., 2012 WL 1970389 (2d Cir. June 4, 2012), the United States Court of Appeals for the Second Circuit addressed (among other things) the scope of two exceptions that apply to liability for short-swing profits under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. 78p(b): the exception for derivative securities that do not have a fixed price and the exception for securities acquired in connection with a “debt previously contracted”
Second Circuit holds that SEC need not prove "proximate cause" for aiders and abettors under Section 20(e) of the Securities Exchange Act of 1934
- Sheppard Mullin Richter & Hampton LLP
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- USA
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- August 15 2012
In SEC v. Apuzzo, 2012 WL 3194303 (2d Cir. Aug. 8, 2012), the United States Court of Appeals for the Second Circuit clarified the standard for finding liability for aiding and abetting under Section 20(e) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. 78t(e
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- Workarea - Capital Markets
- Workarea - Litigation
- Author - John Stigi
- Author - Martin White