This Lawyer's Long Fight to Thwart Shareholder Suits Is Going SCOTUS
Boris Feldman, a Silicon Valley litigator at Wilson Sonsini Goodrich and Rosati, has been on what you might call a crusade to drive all securities fraud class actions into federal court. And he just might succeed.
June 27, 2017 at 08:28 PM
5 minute read
Boris Feldman is a man on a mission.
And no, it's not just to help the legal community be more dapper.
A lifelong Silicon Valley litigator at Wilson Sonsini Goodrich & Rosati, the bowtie-sporting Feldman has been on what you might call a crusade to stamp out the securities fraud class actions that have nibbled at the ankles of tech companies after their initial public offerings.
He's seen battles won and lost over the past several decades—stretching back to 1995, when Congress first passed a law that was supposed to make it a lot harder for the plaintiffs bar to meet the basic pleading hurdle in bringing a securities fraud case.
But now, Feldman's war may be nearing its conclusion. On Tuesday, the U.S. Supreme Court granted his cert petition and took up a case could well decide whether those securities suits can move forward in state court at all, or must all be routed to federal court.
It might sound like a wonky jurisdictional issue to stake your career on. But Feldman says for many companies, it's the difference between handily getting a case tossed out and having to spend anywhere from $6 million to $12 million to get investor plaintiffs to go away.
“It's very hard to get a case thrown out in state court, even if a federal judge would dismiss an identical complaint,” he said in an interview Tuesday. Feldman and others in the defense bar claim that more lenient pleading standards and looser discovery rules in state court get cases moving much more quickly, driving up the pressure on companies to settle.
In some ways, the current fight is deja vu. After Congress enacted the Private Securities Litigation Reform Act in 1995, over the veto of President Bill Clinton, Feldman saw plaintiffs firms file in state court to get around the federal statute. He and his firm litigated those cases aggressively, eventually pushing two up to the California Supreme Court—where they lost.
That generated pressure for another piece of legislation. In 1998, Congress passed the Securities Litigation Uniform Standards Act, which shut down securities class actions brought under state law. The statute ultimately was less clear about whether all securities suits should be routed to federal court, but that seemed to be the prevailing wisdom until around 2011.
That year, a California state appeals court ruled in Luther v. Countrywide Financial that SLUSA continued state court jurisdiction over certain federal securities claims. Specifically, it allowed state court cases brought under Section 11 of the 1933 Securities Act, which makes companies liable for any false information in an IPO registration statement, even if it was an unintentional mistake.
Since then, Feldman has partnered with some powerful allies, including Joseph Grundfest, a Stanford law professor and former commissioner at the U.S. Securities and Exchange Commission who co-founded a “clearinghouse” to help track securities litigation. Feldman's cert petition counts 38 “Section 11” cases filed in California state court between July 2011 and May 2016, compared with just six in the years between 2002 and the Countrywide decision.
The case that the U.S. Supreme Court has agreed to take up illustrates the pattern of litigation that Feldman wants to break. Cyan Inc., a telecom company in Northern California that has since been acquired by Ciena Corp, went public in May 2013. Following disappointing results, investors sued in San Francisco Superior Court, alleging Section 11 violations and other claims.
Feldman sought to have the case tossed out on the grounds that the trial court lacked jurisdiction, but lost that argument. He didn't stop fighting the issue, seeking an appeal first from the state appellate court and eventually the California Supreme Court. Both bids were rejected.
The U.S. Supreme Court's decision to grant review in Cyan is pretty unusual in that the case comes straight from a California state trial court. There is no formal circuit split on the underlying issue of where securities fraud class actions belong, although that's in large part because courts have not treated orders remanding a case back to state court as appealable. Still, some district court judges in New York have leaned more in favor of Feldman's arguments, while federal judges in California have tended to remand cases back to state court.
Feldman's opponents in the case, securities plaintiffs firms Robbins Geller Rudman & Dowd and Glancy Prongay & Murray, seemed pretty sure that review wouldn't be granted because of the “interlocutory posture” of the case. They initially waived their right to file an opposition, but the high court subsequently requested briefing from their side last July.
Playing guessing games with the Supreme Court is fraught with peril. But one could speculate the fact that Justice Neil Gorsuch is now on the bench has something to do with the high court's interest in taking up the case. And recent history might also indicate that Feldman has reason to be optimistic.
Gorsuch earlier this week joined the majority in the U.S. Supreme Court's 5-4 decision in California Public Employees' Retirement System v. ANZ Securities, in which the court ruled that the time period after which a defendant could no longer be sued by shareholders was a statute of repose that couldn't be tolled. It was a hands-down win for companies.
Gorsuch, however, is known for his strict textualist approach. And lower court judges have observed that the SLUSA is not exactly a model of clarity.
On Tuesday, Feldman was conservative when asked about his odds, and wouldn't predict which way the high court will rule. “The fact that judges in New York rule one way, and judges in San Francisco rule another way says that it's not a black-and white issue.”
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