Robert L Hickok

September 01, 2017 | The Legal Intelligencer

In a landmark 5-4 ruling issued earlier this summer, the U.S. Supreme Court held that the filing of a putative class action does not toll the three-year ­statute of repose for opt-out claims brought under Section 11 of the Securities Act of 1933 (Securities Act), in California Public Employees' Retirement System v. ANZ Securities, 137 S. Ct. 2042 (2017). By refusing to apply the equitable tolling rule of American Pipe & Construction Co. v. Utah, 414 U. S. 538 (1974), to the Securities Act's statute of repose (Section 13 of the act), the court restored the statute's purpose to protect defendants "from an interminable threat of liability."

By Robert L. Hickok 
and Gay Parks Rainville

11 minute read

June 05, 2017 | The Legal Intelligencer

During its October term this year, the U.S. Supreme Court will hear argument in Leidos v. Indiana Public Retirement System, No. 16-581, on an important federal securities fraud issue: Whether a publicly held company's ­omission of "known trends and uncertainties" in its annual or interim reports, as required by Item 303 of Securities Exchange Commission (SEC) Regulation S-K, can give rise to a private securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 (Rule 10-5).

By Robert L. Hickok 
and Gay Parks Rainville

7 minute read

March 02, 2017 | The Legal Intelligencer

As Cornerstone Research ­reported earlier this year in "Securities Class Action Filings: 2016 Year in Review," attorneys ­representing shareholder plaintiffs filed 270 securities class actions in 2016, which is a 44 percent increase from both the 188 actions filed in 2015 and the historical yearly average of 188 filings during the 1997 to 2015 time period.

By Robert L. Hickok 
and Gay Parks Rainville

13 minute read

December 09, 2016 | The Legal Intelligencer

On Sept. 27, the U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York's post-trial rulings in the long-pending securities class action, In re Vivendi Universal, S.A. Securities Litigation, 838 F.3d 223, 2016 U.S. App. LEXIS 17566 (2d Cir. 2016). After a three-month trial, a jury entered a verdict against Vivendi, finding that, during the Oct. 30, ­2000-Aug. 14, 2002, class period, the company made 57 material misstatements that artificially inflated its stock price in violation of Section 10(b) of the Securities Exchange Act of 1934 and the U.S. Securities and Exchange Commission Rule 10b-5.

By Robert L. Hickok 
and Gay Parks Rainville

12 minute read

September 03, 2016 | The Legal Intelligencer

In July, U.S. District Judge Robert W. Sweet of the Southern District of New York issued a comprehensive opinion in the federal securities action, Sherman v. Bear Stearns, Master File No. 08 MDL 1963, Index No. 09 Civ. 8161, 2016 U.S. Dist. LEXIS 97784, at *18-35 (S.D.N.Y. July 25, 2016), explaining why the plaintiff's expert report purporting to prove loss causation under a "leakage" theory should be excluded.

By Robert L. Hickok 
and Gay Parks Rainville

16 minute read

June 07, 2016 | The Legal Intelligencer

This month marks the two-year anniversary of the U.S. Supreme Court's seminal securities class action decision, Halliburton v. Erica P. John Fund (Halliburton II), 134 S. Ct. 2398 (2014), which allows defendants to rebut—at the class certification stage—the fraud-on-the-market presumption of reliance permitted under Basic v. Levinson, 485 U.S. 224 (1988). According to Halliburton II, defendants may rebut the Basic presumption by showing that their alleged misrepresentations had no impact on the defendant company's stock price. Notably, the court held that defendants may show lack of price impact with appropriate evidence that either "the asserted misrepresentation (or its correction) did not affect the market price of the defendant's stock." Reiterating its decision in Basic, the court explained that "'any showing that severs the link between the alleged misrepresentation and ... the price received (or paid) by the plaintiff ... will be sufficient to rebut the presumption of reliance.'"

By Robert L. Hickok& and Gay Parks Rainville

10 minute read

March 01, 2016 | The Legal Intelligencer

Last fall, the U.S. Court of Appeals for the Fifth Circuit upheld a district court order denying class certification to a group of BP plc shareholders in the securities litigation, Ludlow v. BP plc, 800 F.3d 674 (5th Cir. 2015).

By Robert L. Hickok
and Gay Parks Rainville

7 minute read

November 30, 2015 | The Legal Intelligencer

On Oct. 23, the U.S. Court of Appeals for the Ninth Circuit decided the following issue of first impression: Whether, when assessing the pleading adequacy of a securities class action complaint's scienter (fraudulent intent) allegations, a court may impute a corporate officer's scienter to the corporation under the "adverse interest exception" even where the officer allegedly acted out of his or her own interests and contrary to the interests of the company. In its opinion, In re ChinaCast Education Securities Litigation, No. 12-57232, 2015 U.S. App. LEXIS 18462 (9th Cir. Oct. 23, 2015), the Ninth Circuit answered this question in the affirmative, holding that, where a complaint alleges that a corporate officer acted with apparent authority, the court should impute the officer's scienter to the defendant corporation—regardless of whether the officer's fraudulent conduct was adverse to the corporation's interest. The Ninth Circuit's decision in ChinaCast is particularly noteworthy for parties litigating securities class actions in the Third Circuit because it expands the application of the Third Circuit's recent decision in Belmont v. MB Investment Partners, 708 F.3d 470 (3d Cir. 2013), which was not a class action, to the securities class action context where plaintiffs are not required to plead and prove direct reliance on a defendant's representations.

By Robert L. Hickok
and Gay Parks Rainville

6 minute read

November 30, 2015 | The Legal Intelligencer

On Oct. 23, the U.S. Court of Appeals for the Ninth Circuit decided the following issue of first impression: Whether, when assessing the pleading adequacy of a securities class action complaint's scienter (fraudulent intent) allegations, a court may impute a corporate officer's scienter to the corporation under the "adverse interest exception" even where the officer allegedly acted out of his or her own interests and contrary to the interests of the company. In its opinion, In re ChinaCast Education Securities Litigation, No. 12-57232, 2015 U.S. App. LEXIS 18462 (9th Cir. Oct. 23, 2015), the Ninth Circuit answered this question in the affirmative, holding that, where a complaint alleges that a corporate officer acted with apparent authority, the court should impute the officer's scienter to the defendant corporation—regardless of whether the officer's fraudulent conduct was adverse to the corporation's interest. The Ninth Circuit's decision in ChinaCast is particularly noteworthy for parties litigating securities class actions in the Third Circuit because it expands the application of the Third Circuit's recent decision in Belmont v. MB Investment Partners, 708 F.3d 470 (3d Cir. 2013), which was not a class action, to the securities class action context where plaintiffs are not required to plead and prove direct reliance on a defendant's representations.

By Robert L. Hickok
and Gay Parks Rainville

6 minute read

September 01, 2015 | The Legal Intelligencer

On July 25—13 months after the U.S. Supreme Court's landmark opinion in Halliburton v. Erica P. John Fund (Halliburton II), 134 S. Ct. 2398 (2014)—the U.S. District Court for the Northern District of Texas, on remand, issued its much-anticipated revised decision on the motion of lead plaintiff Erica P. John Fund Inc. for class certification in this 14-year-old securities fraud case. In Halliburton II, the Supreme Court held that, contrary to the opinions of the district court and the U.S. Court of Appeals for the Fifth Circuit below, at the class certification stage, a defendant may rebut the fraud-on-the-market presumption of reliance permitted under Basic v. Levinson, 485 U.S. 224 (1988), by demonstrating that an alleged misrepresentation had no impact on the corporate defendant's stock price.

By Robert L. Hickok and Gay Parks Rainville

9 minute read