It is a truism in sports that the best defense is a good offense, but it may also be true in securities litigation. Too often, once a securities class action proceeds past the motion to dismiss phase, defense strategy is guided by a single assumption: The case will settle before trial. Thus, defense counsel largely sit back and litigate passively, biding their time until mediation. But aggressively trying securities class actions as if they will proceed to trial has many strategic advantages, including obtaining more favorable settlements. Below are five strategies securities defendants can employ to win before trial, set up appellate opportunities, and obtain settlement leverage.

Drive Discovery

First, while securities defendants usually seek a longer discovery schedule, in some instances expeditious discovery can be to defendants’ benefit. For example, in some cases defendants can leverage their informational advantage to drive discovery. By thoroughly investigating plaintiffs’ claims as early as possible, defense counsel can learn the facts of the case and the scope of evidence early on in the litigation. This allows them to identify key people and documents, formulate their strategy and defenses, and map out a discovery plan to obtain the evidence they need to succeed at summary judgment or trial.

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