On September 27, 2016, in related appeals arising from a long-pending securities fraud class action against Vivendi, the Second Circuit ruled on several important issues, including the proof necessary to both sustain and defeat the fraud-on-the-market presumption of reliance.
Most significantly, in In re Vivendi, S.A. Securities Litigation, Nos. 15-180-cv(L), 15-208-cv(XAP) (2d Cir.), the Second Circuit rejected defendants’ per se challenge to the so-called “price maintenance” theory, which posits that confirmatory misstatements can fraudulently maintain an artificially high stock price by preventing the stock price from declining. The Second Circuit held that misstatements that do not cause stock price … Read more
In Kaess v. Deutsche Bank AG, No. 13-2364 (2d Cir. July 16, 2014), the Second Circuit applied the reasoning in its 2011 decision in Fait v. Regions Financial Corporation, 655 F.3d 105 (2d Cir. 2011), to hold that Deutsche Bank’s alleged misstatements concerning trading exposure to certain mortgage-backed securities were statements of opinion that could be actionable only if pleaded to be both objectively and subjectively false. The Court thus affirmed by summary order the dismissal of plaintiffs’ claims under the Securities Act of 1933. The Kaess decision again demonstrates the divergence between the circuits on the question … Read more
In SEC v. Graham, 2014 WL 1891418 (S.D. Fla. May 12, 2014) (King, J.), a Florida district court held that SEC claims for injunctive relief, declaratory relief and disgorgement are subject to the same five-year statute of limitations as claims for civil monetary penalties. The court’s reasoning was based, in large part, on the Supreme Court’s analysis of that statute of limitations last year in Gabelli v. SEC, 133 S. Ct. 1216 (2013).
28 U.S.C. § 2462 (“Section 2462”) provides that “[e]xcept as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement … Read more
In In re Facebook, Inc., IPO Securities & Derivative Litigation, 2014 WL 1760332 (S.D.N.Y. May 2, 2014), the U.S. District Court for the Southern District of New York rejected the argument that underwriters and selling stockholders in an IPO should be treated as a “group” for the purposes of the short-swing profit rule as a result of “lock-up” agreements temporarily prohibiting shareholders from selling their shares without underwriter permission. The court rejected plaintiff’s theory that the lock-up agreements required the underwriters and shareholders to be treated as a group—which would subject underwriters to short-swing profit liability—because plaintiff did not … Read more