This month, we examine two recent circuit court opinions.
The Commission’s new “proxy access” Rule was vacated by the Circuit Court of the District of Columbia for failing to comply with the Administrative Procedure Act or APA.
The U.S. Department of Labor recently argued that a three-judge panel of the Ninth Circuit got it wrong when it adopted the "Moench presumption" for assessing whether fiduciaries invested imprudently in employer stock in Quan v. Computer Sciences Corp., _ F.3d _, 2010 WL 3784702 (9th Cir. Sep. 30, 2010).
In Quan v Computer Sciences Corp, __ F3d __, 2010 US App Lexis 20199 (9th Cir 2010), the Ninth Circuit held that the presumption of prudence first articulated by the Third Circuit in Moench v. Robertson, 62 F.3d 553 (3d Cir. 1995) applies to claims in the Ninth Circuit that a fiduciary of an employer retirement plan governed by the Employee Retirement Income Security Act ("ERISA") acted imprudently by investing plan assets in employer stock.
In Quan v.Computer Sciences Corporation, Nos. 09-56190, 09-56248, 2010 WL 3784702 (9th Cir. Sept. 30, 2010), the United States Court of Appeals for the Ninth Circuit joined three other circuit courts in expressly adopting a rebuttable presumption that ERISA fiduciaries act prudently by continuing to follow plan terms and allowing plan participants to invest in employer stock.
ERISA litigation, once considered a dull backwater of the law, has been gaining increased interest and attention in recent years: the result of an aging population and an increasingly sophisticated and aggressive plaintiffs' bar.
The newly approved financial reform bill contains new measures expanding the SEC's enforcement authority and strengthening its oversight and regulatory authority over the nation's securities markets.
In 2009, several courts considered whether state laws that bar discretionary clauses in plan provisions governing the administration of benefit claims were preempted by the Employee Retirement Income Security Act of 1974 ("ERISA") and, if so, whether they were saved from preemption by virtue of ERISA’s savings clause.
In our October 2007 memorandum titled "Who��s A Big Boy? Non-Reliance Provisions and Claims of Insider Trading in Securities and Non-Securities Markets," we addressed questions regarding the enforceability of contractual disclaimers of reliance ("Big Boy provisions"), in which the parties to a transaction agree that one or both of them may have access to material non-public information to which the other party does not have access.
In SEC v. Dorozhko, 2009 WL 2169201 (2d Cir. July 22, 2009), the United States Court of Appeals for the Second Circuit held that computer hacking for purposes of obtaining and trading on inside information may be a “deceptive device” under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, even where the hacker owed no fiduciary duty to the issuer.