Reviving Shareholder Reliance in Securities Fraud Cases

To be a public company in the United States is to be subject to an array of federally-imposed disclosure requirements. In my forthcoming article, Reviving Reliance, I describe how the private causes of action available to enforce these requirements have failed to keep pace with the changing purposes of mandatory disclosure. I trace the problem to the functional elimination of the element of reliance from claims brought under Section 10(b) of the Securities Exchange Act[1] via the adoption of the fraud-on-the-market doctrine. I ultimately conclude that courts can better effectuate federal policy by drawing distinctions between actual reliance … Read more

Halliburton and the Dog that Didn’t Bark

The Duke Journal of Constitutional Law & Public Policy recently published a symposium issue on the implications of the Supreme Court’s decision in Halliburton Co. v. Erica P. John Fund, Inc. (“Halliburton II”).[1] In my contribution, I discuss how the Court’s reasoning represents a compromise position that reveals the theoretical tensions that lie behind class certification doctrine.

In Basic Inc. v. Levinson,[2] the Supreme Court endorsed the fraud on the market doctrine. That doctrine provides that when a security trades in an “efficient” market, plaintiffs bringing Section 10(b) claims gain the benefit of two … Read more

Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws

Courts and commenters regularly describe corporate charters and bylaws as “contracts” among shareholders. This necessarily raises the question whether the Federal Arbitration Act (FAA)[1] – which requires that arbitration clauses in “contracts” be enforced according to their terms – applies to such documents in the same way it applies to ordinary contracts. In a series of decisions involving a single Maryland-based REIT, two courts separately held that corporate bylaws are akin to ordinary contracts and equally subject to FAA analysis.[2] However, in my forthcoming article, Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws, … Read more