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In the Matter of New York Stock Exchange LLC, and NYSE Euronext: SEC Sanctions NYSE for Discriminatory Data Distribution

In the administrative proceeding In the Matter of New York Stock Exchange LLC, and NYSE Euronext, the respondents, the New York Stock Exchange LLC and NYSE Euronext, (collectively, “NYSE”) consented to an Order Instituting Administrative and Cease-and-Desist Proceedings (the “Order”) issued by the Securities and Exchange Commission (“SEC”) for violations of Rule 603(a) of Regulation NMS (“Rule 603(a)”), the record retention provisions of Section 17(a)(1) of the Securities Exchange Act (“Section 17(a)(1)”) and Rule 17a-1.  Securities Exchange Act Release No. 67857 (Admin. Proc. 3-15023, Sept. 14, 2012).  The Order required the NYSE to pay a $5 million civil penalty and hire a consultant to provide recommendations on how to avoid future violations. 

Stock exchanges subject to SEC regulation, such as the NYSE, are required to send computerized quotes and trade reports (“market data”) to be included in publicly available consolidated data feeds.  Stock exchanges are permitted to distribute customized market data directly to customers via proprietary feeds, but Rule 603(a) requires exchanges to distribute market data on terms that are “fair and reasonable” and “not unreasonably discriminatory.” 

According to the Order, from June 2008 to July 2011, the NYSE consistently released market data to its subscribing customers before it sent the same market data for inclusion in the public consolidated feed, creating time disparities between the two feeds.  The time disparities “ranged from single-digit milliseconds to, on occasion, multiple seconds.”  There were several reasons given for the time disparities.  First, the data path for one NYSE proprietary feed involved fewer steps and was thus faster than the data path to the consolidated feed.  Second, another NYSE proprietary feed bypassed the system that processed market data into the required format for the consolidated feed.  As a result, intermittent delays in the data processing system affected the data being sent to the consolidated feed, but not the proprietary feed.  Third, a software problem caused delays in the release of market data to the consolidated feed during periods of high trading volume.

The SEC, citing its own adopting release for Rule 603(a), explained that under the standards of “fair and reasonable” and “not unreasonably discriminatory,” the rule prohibited the release of market data via proprietary feeds “any sooner” than the data had been sent for inclusion in the consolidated feeds.  Therefore, the SEC found that NYSE had violated Rule 603(a). 

The SEC also found that NYSE had violated Section 17(a)(1) of the Exchange Act and Rule 17a-1 thereunder.  Section 17(a)(1) required every exchange to “make and keep for prescribed periods such records as the [SEC] may require by rule.”  Rule 17a-1 specified that exchanges had to keep “all records as shall be made or received by it in the course of its business.”  NYSE regularly retained trade-related timestamps and processing speed data for three days before deletion to make room for more recent data.  The SEC found that the deleted timestamps and processing speed data “fell within the scope of [Section 17(a)(1)] because they related to NYSE’s compliance with Rule 603(a).”  

NYSE reached a settlement with the SEC, consenting to a $5 million civil penalty, a cease and desist order, and a censure.  NYSE also consented to a series of undertakings, including hiring an independent consultant to analyze NYSE’s market data distribution systems and make recommendations of how to prevent and detect future violations of Rule 603(a). 

The primary materials for this case may be found on the DU Corporate Governance website.



Yosifon on “The Law of Corporate Purpose”

David Yosifon recently posted “The Law of Corporate Purpose” on SSRN (HT: Bainbridge).  Here is the abstract:

Delaware corporate law requires directors to manage firms for the benefit of the firm’s shareholders, and not for any other constituency. Delaware jurists have been clear about this in their case law, and they are not coy about it in extra-judicial settings, such as in speeches directed at law students and practicing members of the corporate bar. Nevertheless, the reader of leading corporate law scholarship is continually exposed to the scholarly assertion that the law is ambiguous or ambivalent on this point, or even that case law affirmatively empowers directors to pursue non-shareholder interests. It is shocking, and troubling, for corporate law scholarship to evince such confusion about the most important black letter matter in the field. While I am a critic of the “shareholder primacy norm” in corporate governance, I am nevertheless convinced that shareholder primacy is the law. In fact, the critical vantage and reformative program that I have pursued in other writing presupposes that shareholder primacy is currently the law. This article is therefore dedicated both to providing doctrinal clarification on the law of corporate purpose, and to vindicating a key presumption in a broader normative agenda.

While I have not had a chance to read the paper, my initial reaction to the abstract is that there is an important distinction between nominal and actual requirements.  It is certainly fair to say that, “Delaware corporate law [nominally] requires directors to manage firms for the benefit of the firm’s shareholders, and not for any other constituency.”  It is quite another thing to assert that Delaware jurists actually enforce this requirement in a way that seriously impinges on the ability of directors to manage the firm for the benefit of other constituents.  While the latter pronouncement may be subject to vigorous debate, I certainly don’t find it troubling or shocking that a number of esteemed scholars have concluded that Delaware jurists do not in fact require directors to manage firms for the benefit of the firm’s shareholders in any meaningful sense—and thus there is actually no such requirement in practice.  Of course, this is merely my initial reaction to the abstract and Yosifon may well deal with this objection deftly in the body of his paper.  To that point, I note that Stephen Bainbridge commented (here) that Yosifon delivers “a very effective critique of arguments made by scholars like Einer Elhauge and Lynn Stout that, as the latter put it, ‘The notion that corporate law requires directors . . . to maximize shareholder wealth simply isn’t true.’”  Thus, I encourage you to go read the entire paper if you have the time.


Delgado v. Ctr. on Children, Inc: Notes as Securities under State and Federal Law  

In Delgado v. Ctr. on Children, Inc., No. 10-2753 (E.D. La. July 13, 2012), the court granted the defendants’ motion for summary judgment, finding that the two notes issued by one of the defendants, Center on Children (“the Center”), were securities and that the plaintiffs’ claims were time-barred under both federal and state securities law.

The plaintiffs, LaDonna and Rich Delgado (“Plaintiffs”) held two notes (“Notes”) issued by the Center. The Center issued the first note in April of 2004 for $20,000.00 at 8.5 percent interest compounded annually, and it issued the second note in May of 2006 for $25,000.00 at 8.5 percent interest compounded annually. The defendants were the Center, its former president Donald Allison, former board member Kenneth Mills, and the Mid-Atlantic District Church of the Nazarene (“the Church”) of which Mr. Mills is the superintendent (“collectively Defendants”). As the Center is no longer in existence, Plaintiffs claimed that Mr. Mills and the Church were responsible for the Center’s debts.

To address the issue of Plaintiffs’ claims in relation to the relevant statutes of limitations, the court first determined whether or not the Notes were securities. The court applied the test delineated by the United States Supreme Court in Reves v. Ernst & Young, which differentiated “notes based on whether the notes are issued in an investment context (which are ‘securities’) from notes issued in a commercial or consumer context.” This test presumes that all notes are securities, but allows this presumption to be rebutted when the note in question can be shown to resemble a “family” of instruments that are not considered securities. If the note does not closely resemble one of these listed instruments, the fact finder must then “evaluate four factors to determine whether the note is in a class that should be added to the list” of instruments that are not considered securities.

These four factors are: “(1) the motivations that would prompt a reasonable buyer and seller to enter into [the transaction]; (2) the ‘plan of distribution’ of the note to determine whether it is a note for which ‘common trading for speculation or investment’ exists; (3) the reasonable expectations of the investing public; and (4) the existence of another regulatory scheme which would reduce risks related to the note and make application of securities law unnecessary.” The court determined that the Notes did not fit into any of the enumerated exceptions and proceeded to apply the test.

The court found that factors 1, 3, and 4 weighed in favor of the Notes being classified as securities, while factor 2 did not. As the Reves test is a balancing test, the court ruled that the Notes were considered to be securities under federal law. Since both Maryland and Louisiana utilize the Reves test, the court determined that the Notes were securities under state law as well. Defendants argued that the Notes were unregistered, and Plaintiffs did not contest this fact. After checking the Security and Exchange Commission’s online database and finding no filings by the Center, the court held that the Notes were unregistered securities.

The court then addressed the federal and state statutes of limitations.  Section 13 of the 1933 Act reads, “an action based upon the sale of an unregistered security must be filed ‘[w]ithin one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence’… In no event, however, may suit be filed more than three years after the sale or public offering of the security.” Maryland’s blue sky laws contain the same time restrictions as the federal statute, and Louisiana’s, while similar, actually shorten the period to two years. The Center issued one note in 2004 and the other in 2006, and Plaintiffs did not commence the action until 2010; therefore, the court ruled that the claims were barred under federal securities law, Maryland’s securities law, and Louisiana’s securities law. The court dismissed Plaintiffs’ claims with prejudice.

The primary materials for this case may be found on the DU Corporate Governance website.


Union Cent. Life Ins. Co. v. Ally Fin., Inc.: PSLRA Discovery Stay is Applicable to State Law Claims in Federal Securities Actions

In Union Cent. Life Ins. Co. v. Ally Fin., Inc., No. 11 Civ. 2890(GBD)(JCF), 2012 WL 3553052 (S.D.N.Y. Aug. 17, 2012), the United States District Court for the Southern District of New York denied the plaintiffs’ motion for commencement of limited discovery.  The plaintiffs’ (Union Central Life Insurance Company, Ameritas Life Insurance Corporation, and Acacia Life Insurance Company) initially alleged that the defendants violated the Securities Exchange Act of 1934 (“Exchange Act”) and committed “state common law fraud in connection with the sale of twenty-one residential mortgage-backed securities.”  Plaintiffs moved for limited discovery against three groups of defendants:  Morgan Stanley, Washington Mutual, and UBS.  The plaintiffs asserted only state law claims, and not claims under the Exchange Act, against these particular defendants. 

Under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), discovery is postponed in cases involving violations of the Exchange Act until all motions to dismiss are ruled upon.  Defendants filed motions to dismiss, halting discovery.  The plaintiffs put forth three arguments in support of their motion for limited discovery.      

First, the plaintiffs asserted that the PSLRA discovery rule is not applicable to “state law claims where no parallel Exchange Act claim is asserted.”  This argument broke down into two propositions:  (1) “the question of whether the PSLRA stay applies should be resolved independently with respect to each defendant”; and (2) “[assuming the first proposition is true,] the stay does not apply with respect to those defendants against whom the plaintiffs have raised solely state law claims.”  

The court accepted neither proposition.  With respect to the first proposition, the court noted that the cited cases involved the commencement of discovery after the denial of a motion to dismiss.  Because the motions were pending, the cases were inapposite. 

The court resolved the second proposition by looking at the plain language of the PSLRA.  The statute applied to “federal securities actions” [emphasis in original] and did not specify the need for a federal security claim against each particular defendant.  The court reasoned that this language was broad enough to encompass these state law claims because they were within the federal securities action.  

The plaintiffs’ second argument for limited discovery was that “the presence of Exchange Act claims against other defendants is not a valid basis for extending the stay to include defendants against whom they assert only state law claims.”  The court concluded that a discovery stay was inapplicable to state law claims that were unrelated to fraud.  The actions in the instant case were related to fraud and therefore inseparable from the Exchange Act claims.  Furthermore, the court explained that extending the PSLRA to state law claims was essential in cases such as this where coordination among the defendants is required. 

The plaintiffs’ final argument was “that the PSLRA’s stay provision was not intended to apply to individual, rather than class action, securities claims.”  The court again looked to the language of the statute and found no limitation on the scope, holding that the PSLRA applies to individual actions. 

The primary materials for this case may be found on the DU Corporate Governance website.


New York Supreme Court Dismisses All but One Claim in Suit Brought by Facebook Purchaser

In Facie Libre Assocs. I, LLC v. Secondmarket Holdings, Inc., No. 651696-2011E (N.Y Sup. Ct. August 10, 2012), the New York Supreme Court granted defendant SecondMarket Holding’s (“SecondMarket”) motion to dismiss on all but one claim.  Plaintiffs, Facie Libre Associates I, LLC and Facie Libre Associates II, LLC (collectively “Facie Libre”), which is coincidentally Latin for “Facebook,” were Delaware LLCs organized for the purpose of buying shares of Facebook before it went public.  SecondMarket created an online marketplace and brought together buyers and sellers of shares in privately held companies.  Facie Libre brought claims against SecondMarket for breach of contract as a third party beneficiary, negligence, breach of fiduciary duty, intentional misrepresentation, professional malpractice and unjust enrichment.

According to the complaint, the dispute arose when a Facebook employee sought and was granted permission from Facebook to sell 75,000 Class B common shares.  The employee entered into a Stock Transfer Agreement (“STA”) with Facie Libre that valued the shares at $33 per share for a total purchase price of $2,475,000.  SecondMarket entered into an Intermediary Services Agreement (“ISA”) with the Facebook employee whereby SecondMarket would design, implement, and facilitate the entire transaction in exchange for $75,000. 

Facie Libre alleged that SecondMarket had a duty under the ISA to deliver a legal opinion and obtain Facebook’s signature to authorize the transaction.  This task needed to be completed by a deadline of March 26, 2010.  Facie Libre’s expectations were based on twenty previous transactions with SecondMarket in the past. 

Three months after SecondMarket represented to Facie Libre that the transaction had closed, SecondMarket recanted and revealed that it had failed to present Facebook with the legal opinion by the deadline and that the transaction never closed.  Shortly after the missed deadline, Facebook instituted an insider trading policy that prevented employees from selling shares to company outsiders.

SecondMarket initially sought dismissal of  the claims based on a one-year limitation of liability provision in its User Agreement and the argument that the User Agreement barred liability on the claims in this case.  The court rejected both arguments because the User Agreement governed use of SecondMarket’s website, while the STA governed the transaction.

Facie Libre’s breach of contract claim was dismissed because the agreement at issue was not breached.  To succeed as a third-party beneficiary of a contract, the plaintiff must establish that (1) a contract existed between other parties; (2) the contract was intended for the plaintiff’s  benefit; and (3) that benefit was direct rather than incidental.  The ISA, however, was not breached.  It did not require SecondMarket to obtain and deliver the legal opinion; that duty was the Facebook employee’s under the STA.  Accordingly, the claim was dismissed.

The court dismissed the claim for negligence because no duty existed.  The court held that the only potential duty was contractual and that a breach of contract claim may be appropriate, but a negligence claim is “improperly duplicative.”

Similarly, Facie Libre’s breach of fiduciary duty claim failed because a fiduciary relationship was never created.  Facie Libre alleged that because it relied on SecondMarket’s expertise, a special relationship of trust, confidence, and responsibility arose that created a fiduciary duty.  The court reasoned that “‘[p]laintiff’s alleged reliance on defendant’s knowledge and expertise . . . ignores the reality that the parties engaged in arm’s-length transactions pursuant to contracts between sophisticated entities that do not give rise to fiduciary duties.’”

The plaintiffs sufficiently pled the elements of an intentional misrepresentation claim.  The elements of an intentional misrepresentation claim are (1) a material misrepresentation; (2) falsity; (3) scienter; (4) reliance; and (5) injury.  SecondMarket allegedly made a “clearly false” statement when it told Facie Libre that the deal had closed, and Facie Libre’s reliance on SecondMarket was reliable because SecondMarket was in the best position to know whether the deal closed.  Finally, Facie Libre properly pled that its injury was proximately caused by SecondMarket’s misrepresentation because if SecondMarket had been truthful, Facie Libre could have obtained the legal opinion, closed the deal, and realized the gain in Facebook’s stock price.

Facie Libre withdrew its professional malpractice claim during oral argument.

Facie Libre’s claim for unjust enrichment was also dismissed.  A successful claim of unjust enrichment alleges a benefit conferred upon the defendant that the defendant obtained without adequately compensating the plaintiff.  Facie Libre’s claim failed because the benefit conferred on SecondMarket came from the Facebook employee, not Facie Libre. 

The primary materials for this case may be found on the DU Corporate Governance website.


Americas Mining Corp. v. Theriault: Delaware Supreme Court Upholds Court of Chancery’s Award for $2 Billion in Damages and $304 Million in Attorneys’ Fees

In Americas Mining Corp. v. Theriault, Nos. 29, 2012, 30, 3012, 2012 LEXIS 459 (Del. Aug. 27, 2012), the Supreme Court of Delaware upheld the Court of Chancery’s judgment in favor of minority shareholders, affirming an award of more than $2 billion in damages and more than $304 million in attorneys’ fees.

Michael Theriault, trustee for Theriault Trust, brought a derivative suit on behalf of minority shareholders in Southern Copper Corporation (“Southern Peru”) against American Mining Corporation (“AMC”), a subsidiary of Southern Peru, and Southern Peru’s affiliate directors for breach of the duty of loyalty. Theriault alleged that AMC, a subsidiary of Grupo Mexico, the controlling shareholder of Southern Peru, caused Southern Peru to acquire a 99.15% equity interest in Minera Mexico (“Minera”), a Mexican mining company owned by Grupo Mexico. Plaintiff alleged that Southern Peru overpaid for the acquisition.

The Court of Chancery held that evidence presented at trial demonstrated that because of the Special Committee’s ineffective operation, AMC, through its controlling shareholder Grupo Mexico, “extracted a deal that was far better than market” price, constituting a breach of the duty of loyalty to Southern Peru. The defendants appealed the decision based on five distinct arguments, and the Delaware Supreme Court found each contention to be without merit.

Defendants argued that the Court of Chancery unfairly prejudiced them when it denied their request to allow one of their financial advisors from Goldman Sachs to testify at trial as a replacement for a previously identified witness. The advisor would explain the internal processes used at Goldman Sachs to issue fairness opinions to clients. The witness was proposed a week before the trial, was not available to be deposed before the trial and was not available to testify during the scheduled trial dates. Defendants requested that he be deposed after every other trial witness had testified, and sought a modification of the trial schedule so that the court could reconvene several weeks after the trial was scheduled to conclude to hear the testimony of the witness.

The Court of Chancery found that other Goldman Sachs witnesses had been deposed about the same topic. Moreover, the trial judge was willing to “watch the video” of the previously identified witness. Finally, the “eleventh-hour request” to change the trial dates “would have been unfair to the Plaintiff.” The Delaware Supreme Court found that the Chancery Court’s decision was “supported by the record and the product of a logical deductive reasoning process” and was, as a result, a proper exercise of discretion.

Defendants also asserted as error the decision of the Court of Chancery to fail to decide before trial which party had the burden of proof. The defendants asserted that their use of a Special Committee resulted in plaintiffs having the burden. The Delaware Supreme Court, however, noted that the shift in the burden depended upon the effectiveness of the Special Committee, something that could only be determined after the presentation of affirmative evidence at the trial. Moreover, the practical effect of the shift in the burden was “slight” and did not, in the opinion of the Court, alter the outcome of the decision. See Id. (“Nothing in the record reflects that a different outcome would have resulted if either the burden of proof had been shifted to the Plaintiff, or the Defendants had been advised prior to trial that the burden had not shifted.”).

The defendants also challenged the lower court’s finding that there had not been fair dealing or fair price. In particular, defendants argued that the Chancery Court incorrectly rejected Goldman Sachs’ valuation procedure without a sufficient evidentiary basis. The Delaware Supreme Court held that “the Court of Chancery did understand the [d]efendants’ argument and that its rejection of the [d]efendants’ ‘relative valuation’ . . . was the result of an orderly and logical deductive reasoning process that is supported by the record.”

The Delaware Supreme Court also reviewed the calculation of damages. In determining the amount of the overpayment, the Court of Chancery looked to three different alternate valuation techniques for Minera, concluding that the average “difference” was $1.347 billion. The court awarded that amount plus the statutory interest rate. Because the Court of Chancery had “explained the reasons for its calculation of damages with meticulous detail” and shared with the defendants “complete transparency of its actual deliberative process,” it properly exercised its discretion in calculating and awarding damages.

Finally, the defendants contended that the $304 million award for attorneys’ fees was unreasonable as it would pay the plaintiffs’ counsel at a rate of more than $35,000 per hour, an amount 66 times more than the value of the attorneys’ time and expenses. The Delaware Supreme Court affirmed the use of the “percentage of the fund” method when setting common fund fee awards. See Sugarland Indus., Inc. v. Thomas, 420 A.2d 142 (Del. 1980) (fees based on (1) the benefit achieved; (2) counsel’s time and effort; (3) the difficulty and complexity of litigating the case; (4) whether counsel’s representation was contingent; and (5) the standing and ability of counsel working on the case).

The Delaware Supreme Court explained that the “benefit achieved” factor was the most important in determining the amount of fees and that counsel, when it secures an extraordinary benefit for its clients, is “entitled to a fair percentage of the benefit” [emphasis in original]. Again, the Court of Chancery described in thorough detail its reasoning for awarding the amount of attorneys’ fees that it did, even declining the percentage based in part upon the size of the judgment, and in part upon plaintiffs’ counsels’ delay in litigating the case.

In an unusual move, Justice Berger filed a separate opinion concurring in the merits of the case, but dissenting with regard to the legal standard applied by the trial court to the award of attorneys’ fees. Justice Berger found that instead of applying the Sugarland factors, the trial court’s analysis was based upon its views of whether the fees available to plaintiffs’ lawyers were high enough to incentivize them to try “mega” cases.

The primary materials for this case may be found on the DU Corporate Governance website.


UBS Financial Services Inc. v. Carilion Clinic: FINRA Arbitration Ordered in ARS Case

In UBS Financial Services Inc. v. Carilion Clinic, Civil Action No. 3:12cv424–JAG, 2012 WL 3112010 (E.D. Va. July 30, 2012), the United States District Court for the Eastern District of Virginia denied plaintiffs’ motion for a preliminary injunction prohibiting arbitration with the Financial Industries Regulation Authority (“FINRA”).

Defendant Carilion Clinic (“Carilion”) is a non-profit healthcare organization operating eight hospitals in Virginia. It entered into a business relationship with UBS Financial Services (“UBS”) and CitiGroup Global Markets, Inc. (“Citi”) (collectively, “Plaintiffs”) through two sets of documents: the Underwriter Agreements and the Broker-Dealer Agreements. Carilion then issued about $234 million in auction rate securities (ARS), allegedly at the recommendation of UBS and Citi, to fund expansion of its facilities. ARS “are bonds for which the variable interest rate is determined through a periodic auction.”  UBS and Citi allegedly bid in these auctions along with investors to ensure the auctions did not fail. When the ARS market crashed in 2008, UBS and Citi discontinued auction bidding; the auctions failed, resulting in a loss of millions of dollars by Carilion. Carilion initiated arbitration in FINRA in February 2012.

In order to be successful on their motion for a preliminary injunction, Plaintiffs must prove the following: “(1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in [their] favor; and (4) an injunction is in the public interest.”

Plaintiffs first argued that Carilion is “an issuer of securities, not a customer,” and therefore, Carilion did not have a right to arbitration under FINRA. The court defined “customer” as “one that purchases some commodity or service.” The court reasoned that Carilion was a customer because it paid for financial services, such as underwriting, administrative auction fees, and financial advice. Accordingly, the court ruled that Plaintiffs were not likely to succeed on the merits of arguing Carilion was not a customer.

Next, Plaintiffs argued that Carilion waived any right to arbitration by agreeing to a forum selection clause in the Broker-Dealer Agreements. The court stated that the Federal Arbitration Act “requires any ambiguities in contract to be resolved in favor of arbitration.” The court found that the language of the forum selection clause stated that “all actions and proceedings” were to be brought in New York and it “did not directly address arbitration.” Plaintiffs were also on notice of a potential arbitration requirement because their status as FINRA members required arbitration in certain circumstances. Accordingly, the court ruled that Plaintiffs were unlikely to succeed on the merits of their claim that the forum selection clause waived arbitration.

The court also found that Plaintiffs could not show they would be irreparably harmed, the balance of equities was not in Plaintiffs’ favor, and the public interest favored arbitration.

The primary materials for this case may be found on the DU Corporate Governance website.


Kiobel Unlikely to Turn on Corporate Personhood posted an article this past Monday with the provocative headline: In Shell Case, Will Supreme Court’s View of Corporate Personhood Mean Liability for Crimes Abroad?  The article went on to describe the case as follows:

The Supreme Court opens its 2012-2013 term today with a landmark case to decide whether survivors of human rights violations in foreign countries can bring lawsuits against corporations in U.S. courts. The case centers on a lawsuit that accuses the oil giant Shell’s parent company, Royal Dutch Petroleum, of complicity in the murder and torture of Nigerian activists. Some legal analysts are comparing this case, Kiobel v. Royal Dutch Petroleum, to the landmark campaign finance ruling in Citizens United. In 2010, the Supreme Court ruled corporations have broad rights under the First Amendment and can directly fund political campaigns. The court is now being asked to decide if corporations have the same responsibilities as individuals for violations of international law.

However, there are good reasons to believe the Court will never reach the issue of corporate theory or personhood.  To begin with, the Court ordered re-argument to address the question whether the Court should be hearing the case at all—independent of any questions of corporate status.  As the Wall Street Journal reported (here):

Initially, the Supreme Court agreed to consider whether the alien tort law applied to corporations as well as individuals, but after a first round of arguments in February, the justices ordered additional arguments over the far broader question of whether the law applies at all to events overseas.

"Why does this case belong in the courts of the United States when it has nothing to do with the United States other than the fact that a subsidiary of the defendant has a big operation here?" said Justice Samuel Alito, who both Monday and in February seemed most inclined to restrict the law's scope.

Furthermore, as I note in the latest SSRN draft of my paper, The Silent Role of Corporate Theory in the Supreme Court’s Campaign Finance Cases, 15 U. PA. J. CONST. L. __ (forthcoming), even the corporate-status issue is unlikely to involve corporate personhood/theory:

Looking ahead, in Kiobel v. Royal Dutch Petroleum Co., the Court will soon be addressing the question whether federal courts in the United States may exercise jurisdiction over corporations pursuant to the Alien Tort Statute, which gives federal courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”   The Second Circuit, in ruling on the case below, identified the relevant issue as “the treatment of corporations as a matter of customary international law.”    This may at first blush suggest corporate theory is irrelevant because the question is not why corporations are treated a particular way under international law, but rather simply how they are in fact treated.  

I did go on to note, however, that:

Nevertheless, it may again be difficult to separate a conclusion about the scope of the statute from preconceived notions about what corporations are.  For example, the Brief Amicus Curiae for the Brennan Center for Justice at NYU School of Law in Support of Petitioners  notes the following:

"In his opinion denying rehearing, a distinguished member of the panel majority below asserted that requiring multinational corporations to defend against customary international law claims in United States courts would subject them to 'extort[ed]' settlements, and unjustifiably 'beggar' them. Such a canard is deeply troubling, not only because it is so clearly legislative in nature, but because it is premised on an indefensible assumption that corporations are freestanding entities less prone to great evil than the fallible human beings who constitute them."

Thus, it is unlikely that the case will turn on corporate personhood or corporate theory, but I won’t be surprised if the attitudes of the justices toward corporations make their way into the opinion nonetheless.



SEC v. Bartek: Officer/Director Bans Barred by Statute of Limitations

In SEC v. Bartek, the Fifth Circuit Court of Appeals held that the discovery rule exception does not apply to the federal statute of limitations (codified at 28 U.S.C. § 2462), and that an injunction permanently barring defendants from serving as officers or directors at any public company is a penalty under § 2462.  2012 WL 3205446 (Fifth Cir. Aug 7, 2012).  The court held that because there was no discovery rule exception in the statute and because the remedy sought by the plaintiff was a penalty, the claims were barred by § 2462.   

Douglas Bartek was the founder and CEO of Microtune, a company that manufactured silicon tuners.  Nancy Richardson was the general counsel and CFO of Microtune.  In 2008, the Securities and Exchange Commission (“SEC”) brought suit against Bartek and Richardson for violations of the antifraud and books and records provisions of the Securities Act of 1933 and the Securities Exchange Act of 1934.

According to the SEC, Bartek and Richardson failed to properly expense backdated stock options granted to officers and employees of Microtune from 2000 to 2003.  Allegedly, Bartek retroactively selected grant dates, using the date of the lowest stock price over the previous two weeks as the supposed option grant date.  The SEC claimed that the alleged backdating scheme caused Microtune to understate over $22.5 million of compensation expenses and overstate income in filings to the SEC.  The SEC sought civil penalties and permanent injunctions barring Bartek and Richardson from serving as officers or directors at any public company. 

Bartek and Richardson filed a motion to dismiss, arguing that the claims were barred by the five-year federal statute of limitations for enforcement of civil penalties.  28 U.S.C. § 2462.  The district court granted the motion.  On appeal, the SEC argued that the discovery rule exception should apply to § 2462 and therefore that the claims did not begin to accrue until the SEC first discovered the violations in 2003.  Application of the discovery rule means that a claim begins to accrue “upon discovery of harm” instead of when the violation occurred. 

To determine whether the discovery rule applied to § 2462, the Fifth Circuit considered the text of the statute and case law.  The court found no support for a discovery rule exception in the text of § 2462.  With respect to case law, the Fifth Circuit court began its analysis by noting that it had previously held that “[i]t is abundantly clear that both the courts and Congress have construed the ‘first accrual’ language of § 2462 to mean the date of the violation.”  (citing United States v. Core Labs., Inc., 759 F.2d 480, 482 (5th Cir. 1985)).  The court also noted that the 9th, 11th, and D.C. Circuits have “similarly held that § 2462 does not incorporate a discovery rule.”  Finally, the court applied the Supreme Court’s holding that “the general meaning of when a right accrues is when that claim comes into existence.  (citing United States v. Lindsay, 346 U.S. 568, 569 (1954)).  Thus, the court ruled that the discovery rule did not apply to § 2462. 

The SEC also argued that the permanent officer and director bars it sought against Bartek and Richardson were not penalties, but were instead equitable remedies.  Equitable remedies, unlike penalties, are not subject to the time limitations of § 2462.  The court explained that “[i]n determining whether the sanction is a penalty [under § 2462], a court must objectively consider the degree and extent of the consequences to the subject of the sanction.”  The court found that the injunctions were penalties because they “would have a stigmatizing effect and long-lasting repercussions” and because they wouldn’t remedy past harm.  Therefore, the SEC’s permanent injunction claims against Bartek and Richardson were subject to the time limitations of § 2462. 

Because there was no discovery rule exception to § 2462 and because the injunctions sought by the SEC were penalties, the court affirmed the dismissal of the SEC’s claims against Bartek and Richardson.

The primary materials for this case may be found on the DU Corporate Governance website.


Abrams v. Wainscott: Derivative Action Dismissed

In Abrams v. Wainscott, et al., Ruth Abrams (“Plaintiff”) filed a derivative action in federal district court against the board of directors of AK Steel Holding Corp. (collectively, “Defendants”).  No. 11-297-RGA, (D. Del. August 21, 2012).  

Plaintiff alleged that the proxy statement for AK Steel instructed stockholders that if they voted to reapprove the performance goals of the Long-Term Performance Plan (“LTPP”), the Stock Incentive Plan (“SIP”), and the amendment and restatement of the SIP, performance based compensation under the plans would be tax-deductible.  Plaintiff alleged that the compensation under the plans was not tax-deductible and that the disclosure was misleading.  Plaintiff brought four claims, including unjust enrichment, waste based on the payment of non-deductible compensation, breach of duties under the federal proxy rule, and breach of the duty of loyalty. 

Defendants moved to dismiss the complaint for the failure to make demand.  Plaintiffs asserted, however, that demand was excused as futile.  Under Delaware law, demand futility will be shown through allegations of particularized facts that create a reasonable doubt as to whether “(1) the directors are disinterested and independent and (2) the challenged transaction was otherwise the product of a valid exercise of business judgment.” Aronson v. Lewis, 473 A.2d 805, 814 (Del. 1984).

The court found that Plaintiff did not adequately allege that the Director Defendants were interested in the various plan matters submitted to shareholders for approval.  As a result, demand would be excused only if Plaintiff alleged particularized facts establishing “a reasonable doubt as to whether the protections of the business judgment rule” were available to the directors.   

Plaintiff asserted that the Compensation Committee of the Board had been responsible for the development and implemented the LTPP.  Moreover, the Committee had, “at various earlier times allegedly violated the express terms of then-existing LTPP.”  Because at least half the board sat on the Compensation Committee, according to Plaintiff, they could not claim the protection of the business judgment rule. 

 The court held that broad allegations of a violation of a compensation agreement was not sufficient to meet the second prong of the Aronson test.  Instead, shareholders had to include allegations of knowledge and intent with respect to the violations of the plan.  Plaintiff also alleged that demand was excused because the majority of the board violated public policy, the claim involved a disclosure issue, and the compensation at issue involves waste. The court summarily dismissed these arguments.

Plaintiff’s pleadings failed under both the first and second prongs of the Delaware test; thus, the court dismissed the case.  The court did so without prejudice in order to allow Plaintiff the chance to amend.

The primary materials for this case may be found on the DU Corporate Governance website.


Securities Fraud and a Pump-and-Dump Scheme: SEC v. Curshen

In SEC v. Curshen, No.11–CV–20561–JLK, 2012 WL 3755527 (S.D. Fla. Aug. 28, 2012), the United States District Court of the Southern District of Florida granted the Security and Exchange Commission’s (“SEC”) motion for summary judgment against two defendants, Yitzchak Zigdon, an accountant, and Ariav Weinbaum, a businessman, for violations of the antifraud provisions in both the Securities Exchange Act of 1934 and Securities Act of 1933.

This case involved the sale of common stock in a limited private company incorporated in the United Kingdom called CO2 Tech (“CO2” or “the company”).  According to the SEC’s allegations, the company had a registered business address in London and purported to have a manufacturing and research development facility in Israel. The company claimed that it had experts with over a decade of experience in the pollution control industry and partnerships/alliances with leading companies and research institutions.   

In reality, according to the SEC, CO2’s London office was simply a rented mail drop, and its manufacturing and research development facility could not be located. Additionally, with respect to the officers, the CEO “had not traveled outside of Israel since November 1, 2003” and the President was the CEO’s 72-year-old mother. 

Sections 10(b) and 10b-5 of the Exchange Act and Section 17(a) of the Securities Act prohibit certain types of false statements.  They also prohibit schemes to defraud.  The latter type of violation did not necessarily require a misstatement or omission, but was aimed at a “broader fraudulent scheme.”

The court found that there were no facts in dispute and that the SEC had met its burden establishing violations of Section 17(a) and Rule 10b-5.  According to the opinion:

A pump-and-dump stock scheme is a classic violation of these provisions. The actions of Defendants . . . repeatedly violated the anti-fraud provisions of the Securities Act and Exchange Act. Defendants . . . converted C02 Tech into a public company by instructing Defendant Krome to find a public shell corporation; opened a brokerage account at Red Sea management to facilitate the stock manipulation; and directed matching buy and sell orders to artificially inflate C02 Tech's stock value. Individually, Defendant Weinbaum transferred money to Defendant Krome for the shell purchase and hired Defendant Weidenbaum to promote the stock and help organize buy and sell orders. Defendant Zigdon orchestrated the false media campaign surrounding C02 Tech.

The court also found the defendants liable for the sale of unregistered securities under section 5 of the Securities Act. According to the court, the SEC produced undisputed facts showing CO2 sold unregistered shares and that the defendants were “at the very least, necessary participants and substantial factors” in the sale of the shares.

The primary materials for this case may be found on the DU Corporate Governance website.


BofA, Merrill Lynch and the Financial Crisis of 2008

BofA settled the law suit over the Merrill Lynch acquisition for $2.43 billion (along with some governance changes). See Bank of America Settles Suit Over Merrill for $2.43 Billion. The suit arose out of allegations that BofA did not adequately disclose a forecast of the fourth-quarter losses expected to be incurred by Merrill.  The action was described as “the largest securities class-action lawsuit settlement yet to arise from the financial crisis.” 

We have no comment on the merits of the case.  We note only this.  The acquisition of Merrill came at a critical time. Lehman had collapsed. The financial markets were hardly functioning. As evidence of the burgeoning losses at Merrill became clear, BofA had an argument that it could walk away from the acquisition (based upon a material adverse condition). There is some evidence that the government pressured BofA to complete the acquisition. Had the Bank walked away and had Merrill collapsed, the blow to the financial markets likely would have been enormous, potentially making the downward economic spiral substantially worse. 

This is one of those instances where the merits of the acquisition to shareholders can be debated (although as the Dealbook article notes, Merrill has contributed “roughly half the bank’s revenue since 2009”). But the financial system, the country, and the persons who would have suffered had the recession worsened as a result of a failure of Merrill, likely owe a debt of gratitude to BofA for completing the acquisition. 


Another Say on Pay Suit Dismissed: Swanson v. Weil

In Swanson v. Weil, the federal district court in Colorado dismissed another case seeking to establish a breach of fiduciary obligations at least in part based upon a negative say on pay vote.  This case involved the board of directors of Janus Capital, a company that received a negative vote on pay in 2011.  As has been the case for most of these suits, the decision was issued in the context of a motion to dismiss for failure to make demand. 

The court found first that the plaintiffs had not alleged sufficient facts to meet the Aronson test.  The facts were not sufficient to show that the board was interested because of the potential for liability arising out of the litigation.  In doing so, the decision noted the holding in NECA-IBEW Pension Fund ex rel. Cincinnati Bell, Inc. v. Cox, No. 11-cv-451, 2011 WL 4383368 (S.D. Ohio Sept. 20, 2011), but found the decision not to be "persuasive." 

In addressing the negative shareholder vote on executive compensation, the court emphasized that "Dodd-Frank expressly states, however, that such a vote may not be construed 'to create or imply any change' to existing fiduciary duties."  The court also rejected the argument that the "resounding no vote" by shareholders combined with a decline in share prices sufficied to remove the presumption of the business judgment rule. 

[the argument] contradicts the express language of Dodd-Frank and well-established Delaware law. Dodd-Frank states that a shareholder vote does not “overrul[e]” a decision by a board or “create or imply any additional fiduciary duties” to rescind or otherwise respond to a say on pay vote. See 15 U.S.C. § 78n-1(c). . . . I also note that the result of the advisory say on pay vote cannot rebut the business judgment presumption because it occurred after the Board approved the 2010 executive compensation. Delaware law forbids using events subsequent to the challenged action to second guess a board’s business judgment.

The decision, therefore, continues a clear trend with respect to legal challenges involving negative say on pay votes.  With the exception of Cincinnati Bell, courts have not been willing to allow cases involving a negative say on pay allegation to get past the demand excusal stage.  Some have used language that suggests a negative vote is irrelevant to the analysis, mostly relying on the language in the statute stating that the advisory vote does not alter fiduciary obligations.  See 15 U.S.C. § 78n-1(c).  A few cases have noted that a negative vote can be a factor in determining whether the board is entitled to presumption of the business judgement rule but, standing alone, does not suffice to rebut the presumption. 

The short term consequences of these decisions is to remove some of the legal risk associated with negative say on pay votes by shareholders.  Boards in general can be comforted by knowing that the fact alone does not significantly increase the risk of a violation of the board's fiduciary obligations.

In the long term, however, the cases likely will make advisory votes less effective.  Aware that a negative say on pay vote does not significantly increase risk, boards will have greater freedom to ignore them.  To the extent that this occurs, advisory votes will have less impact on the compensation process.  In countries where say on pay has not had the intended effect on compensation practices, countries have sometimes put in place second generation statutes that provide shareholders with some binding authority.  This has occurred, for example, in Britain. 


Bill Moyers on “The United States of ALEC”

The following is excerpted (under a Creative Commons license) from “The United States of ALEC: Bill Moyers on the Secretive Corporate-Legislative Body Writing Our Laws,” available on here.

Democracy Now! premieres "The United States of ALEC," a special report by legendary journalist Bill Moyers on how the secretive American Legislative Exchange Council has helped corporate America propose and even draft legislation for states across the country. ALEC brings together major U.S. corporations and right-wing legislators to craft and vote on "model" bills behind closed doors. It has come under increasing scrutiny for its role in promoting "stand your ground" gun laws, voter suppression bills, union-busting policies and other controversial legislation. Although billing itself as a "nonpartisan public-private partnership," ALEC is actually a national network of state politicians and powerful corporations principally concerned with increasing corporate profits without public scrutiny....

BILL MOYERS: ALEC is a nationwide consortium of elected state legislators working side by side with some of America’s most powerful corporations. They have an agenda you should know about: a mission to remake America, changing the country by changing its laws one state at a time. ALEC creates what it calls "model legislation," pro-corporate laws … that its members push in statehouses across the country. ALEC says close to a thousand bills, based at least in part on its models, are introduced every year, and an average of 200 pass. This has been going on for decades, but somehow ALEC managed to remain the most influential, corporate-funded political organization you had never heard of …. Lisa Graves, a former Justice Department lawyer, runs the Center for Media Democracy. That’s a nonprofit investigative reporting group in Madison, Wisconsin. In 2011, by way of an ALEC insider, Graves got her hands on a virtual library of internal ALEC documents. …

LISA GRAVES: Bills to change the law to make it harder for Americans to vote, those were ALEC bills. Bills to dramatically change the rights of Americans who are killed or injured by corporations, those were ALEC bills. Bills to make it harder for unions to do their work were ALEC bills. Bills to basically block climate change agreements, those were ALEC bills….

BILL MOYERS: It sounds like lobbying. It looks like lobbying. It smells like lobbying. But ALEC says it’s not lobbying. In fact, ALEC operates not as a lobby group but as a nonprofit, a charity. In its filing with the IRS, ALEC says its mission is education, which means it pays no taxes and its corporate members get a tax write-off. Its legislators get a lot, too….

STATE REP. STEVE FARLEY: I just want to emphasize, it’s fine for corporations to be involved in the process. Corporations have the right to present their arguments. But they don’t have the right to do it secretly. They don’t have the right to lobby people and not register as lobbyists. They don’t have the right to take people away on trips, convince them of it, and send them back here, and then nobody has seen what’s really gone on and how that legislator has gotten that idea and where is it coming from.

BILL MOYERS: Farley has introduced a bill to force legislators to disclose their ALEC ties, just as the law already requires them to do with any lobbyist.

STATE REP. STEVE FARLEY: All I’m asking in the ALEC Accountability Act is to make sure that all of those expenses are reported as if they are lobbying expenses, and all those gifts that legislators received are reported as if they are receiving the gifts from lobbyists, so the public can find out and make up their own minds about who is influencing what.

BILL MOYERS: Steve Farley’s bill has gone nowhere. ALEC, on the other hand, is still everywhere, still hiding in plain sight. Watch for it coming soon to a statehouse near you.

PS--Relatedly, you might find my article "Finding State Action When Corporations Govern" of interest.


Universal Banks, Market Risk and Efforts to Have It Both Ways

The Economist opposes the break up of large banks but is also critical of some of the regulatory limitations gradually being imposed on these financial institutions.  The two positions, in the messy real world, have an air of inconsistency.  

What are the arguments for leaving the size of large financial institutions untouched?  According to the Economist, there are three reasons why some favor a break up of the large banks:  there is something rotten about investment banking that infects commercial banking; there is a threat to financial stability because of the added complexity that comes with size and involvement in the securities markets; and universal banks "are a dreadful deal for investors."

Having defined the problem in a particularly inapt way, the Economist then demolishes each of its own characterization.   As it notes:  "The idea that all finance’s problems stem from the investment-banking 'casino' is a misdiagnosis."   But of course no one says that all problems in finance stem from involvement in the securities markets, only that involvement increases risk. 

What about financial stability?  The main argument is that involvement in securities markets permits commercial banks to diversify their investment portfolio, with a mix of loans and securities activities.  That is, of course, true, but it does not in any way assess the risks associated with particular types of investments.

As for the "dreadful deal" for investors, the article simply noted that this was "open to question."  Perhaps.  But isn't the issue a bit broader than that?  If we were only concerned about investors, there would be no problem with "too big to fail."  Let them fail and wipe out the equity holders.  Too big to fail is decidedly not a doctrine focused on investors but the impact of a failure on the financial system. 

Finally, the Economist did note that while "it is easy to call for banks to be carved up, it would be hellishly difficult in practice."  True.  But that goes to execution (no small matter).  It is not a commentary on the broader issue of whether a break up should occur.  Thus, the comment that they should not be broken up because "most are so large that simply slicing them in two would not solve the problem" begs the question of how deep to slice in any downsizing endeavor. 

Nonetheless, recognizing the problem of too big to fail, the Economist noted the proposal by the British Government to adopt a "ring fence" around retain and investment banking activities.  As the article noted: 

that would force the retail and investment-banking arms of universal banks to have their own capital buffers, shielding depositors from losses in the investment bank but retaining some diversification benefits. Add in new rules requiring all types of banks to hold more capital, and (crucially) efforts to impose losses on private creditors of a failing institution, and the case for radical surgery is blunted.

Put aside the logistical issues that would arise in connection with the implementation of such a scheme.  The solution of the Economist was do not downsize, but increase regulation.  

But having proposed additional regulation in place of downsizing, it did not take the Economist very long to criticize efforts to increase the regulatory framework for investment banks.  In a subsequent article, the Economist noted the inevitable consequences of increased regulation, a decline in profitability.  

regulations on capital and liquidity are starting to bite. These are reducing returns earned by banks as well as forcing them to shrink their balance-sheets and cut back on trading. Many banks are also starting to position themselves for proposed rules that are not yet in force, such as America’s Volcker rule, which aims to stop banks trading for their own account, and regulations that will shove over-the-counter derivatives, which command fat margins, onto clearing-houses and exchanges.

So regulation designed to more tightly regulate investment banking activities is starting to hurt, at least when measured by profitability.

It is a set of arguments that seek to have it both ways.  Start with the presumption that banks are in fact too big to fail.  Why?  The NYT Magazine said it nicely: 

The main lesson of Lehman’s collapse is that the response to a troubled financial system is, ultimately, determined not by technical regulation, but by politics. The F.D.I.C. can use its new powers only after receiving the consent of the Treasury secretary. And its new powers pertain only to those banks deemed systematically important, a designation determined by political appointees. So while the F.D.I.C. is working to formalize the rules governing its new powers, investment-bank lobbying has grown by nearly 60 percent since the crisis began. Bankers learned that they need to be closer than ever to politicians.

So there really are only two solutions.  One is to downsize the banks and make them small enough that they can fail without creating a political question.  The second is to increase the regulation of universal banks, not because it is good for investors, not because it makes the financial system more stable over all, but because it reduces the risk profile of universal banks and makes a failure less likely, reducing the instances of a possible failure. 

This is not an argument for either position.  Both solutions are difficult to implement and will cause plenty of problems.  It is mostly a commentary on those who seem to argue against both approaches.  There is a viable basis for doing so:  that too big to fail is a reality and should simply be accepted.  But to the extent there is concern with too big to fail, they can at least be ameliorated through adjustments in size and/or adjustments in risk.  For more thoughts on this subject, see The "Great Fall": The Consequences of Repealing the Glass-Steagall Act


Federal Housing Finance Agency v. The Royal Bank of Scotland: The Private Securities Litigation Reform Act is not Applicable to the Federal Housing Finance Agency

The Federal Housing Finance Agency (“FHFA) brought a claim as a conservator for the Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) against The Royal Bank of Scotland (“RBS”) and multiple other defendants, alleging violations of federal securities laws.  Defendants sought to invoke the automatic stay of discovery contained in the Private Securities Litigation Reform Act (“PSLRA”). See 15 U.S.C. § 78u-4(b)(3)(B). The United States District Court for the District of Connecticut ruled that the present claim was not a private action under the PSLRA and, as a result, declined to order a stay of discovery. Fed. Hous. Fin. Agency v. The Royal Bank of Scotland Group PLC, No. 3:11-cv-01383 (D. Conn. Aug. 17, 2012).

Fannie Mae and Freddie Mac were formed in order to “make the secondary mortgage market more competitive and efficient.” Both companies are federally chartered. In 2008, Congress created the FHFA and gave it the power to place regulated entities into conservatorship. In 2008, the FHFA became the conservator for Fannie Mae and Freddie Mac for the purpose of stabilizing the two corporations.

In the action brought by FHFA, the defendants filed a motion to dismiss while the plaintiff filed a motion to commence discovery.  In response to plaintiff's motion, defendants sougth a stay of discovery, noting that under the PSLRA, “all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss . . .”  The defendants asserted that because the plaintiff stepped into the shoes of two private corporations, it had become a private plaintiff.  As a result, plaintiff’s action was private, subject to the PSLRA, and subject to the stay of discovery. 

In resolving the applicability of the PSLRA, the court reasoned that “the material distinction for purposes of determining whether an action is a ‘private action’ under the PSLRA is the nature of the plaintiff, not the cause of action.” Thus, the PSLRA applied to actions brought by private plaintiffs, but not those brought by government agencies, such as the Securities and Exchange Commission. The court concluded that the FHFA, did not lose its status as a government agency simply by acting as a conservator for private parties.

In the alternative, the defendants argued that Rule 26(c) of the Federal Rules of Civil Procedure required a stay of discovery during this time period. However, the court ruled that the defendants had not met their burden of “showing that good cause exists” to justify an order to stay the plaintiff’s discovery.

The primary materials for this case may be found on the DU Corporate Governance website.


Auto. Indus. Pension Trust Fund v. Textron Inc.: Pleading Fails To Meet the Scienter Element Under Heightened PSLRA Standards

On June 7, 2012, the First Circuit Court of Appeals affirmed the district court’s decision to grant Textron Inc.’s (“Textron”) motion to dismiss Appellees’ securities fraud class action claim.  Auto. Indus. Pension Trust Fund v. Textron Inc., No. 11-2106, 2012 WL 2038098 (1st Cir. 2012).  Automotive Industries Pension Trust Fund was the lead appellee for a class of plaintiffs (collectively, “Appellees”) who invested in Textron.

According to the complaint, Textron, which wholly owns Cessna Aircraft Company (“Cessna”), made statements over the course of 2007 and 2008 assuring its investors of its financial strength due to the depth of its backlog of orders at Cessna.  For instance, Textron allegedly stated that the backlog would carry the company through difficult economic times.  For sixteen months leading up to January 2009, Textron management reassured investors that its backlog was resilient and cancellations were minimal.  On January 29, 2009, however, Textron reported a disappointing fourth quarter in 2008, with “few orders, 23 cancellations, and ‘an unprecedented number of deferrals’ of delivery dates by customers.”  After the report’s release, Textron stock declined thirty-one percent. 

To allege a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5,  plaintiffs must plead “1) material misrepresentation or omission; 2) scienter; 3) a connection to the purchase or sale of a security; 4) reliance on the representations; 5) economic loss; and 6) loss causation.”  To reduce the number of securities lawsuits, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”), which requires plaintiffs to allege each specific misleading statement, state why it is misleading, and allege a “strong inference” that the defendant acted with scienter.  Adequate scienter is the “intent to deceive, manipulate, defraud” or act recklessly with an indifference to deceit.

Appellees’ claim relied on twenty-three confidential witnesses who allegedly revealed weaknesses in Cessna’s backlog.  The weaknesses included lowered credit standards for buyers, customer deposits that Cessna fully financed, and generous loan repayment terms.  Cessna encouraged customers to delay their orders instead of canceling them; additionally, many customer orders were contingent, intended only to be delivery placeholders and not actual orders.  Appellees alleged that Textron made false statements about cancellation figures, including an announcement that Cessna had only two cancellations as of July 2008.   Appellees’ main claim, however, was that Textron failed to disclose information about the weakness of its backlog orders.

The court held that Appellees’ complaint failed to plead facts sufficient to infer scienter.  Nothing in the complaint implied that Textron’s management believed, or was reckless in not knowing, that the backlog had been compromised by loose underwriting standards.  Allegations that Textron’s management was unaware of Cessna’s unstable backlog would establish negligence, but negligence was not sufficient to prove scienter under PSLRA standards.  The court stated that a concealed change in company policy could support an inference of scienter; however, Appellees did not plead those facts. 

A strong inference of scienter can also arise from stock sales that are unusual in amount.  Appellees highlighted some stock sales by Textron management during the class period, but Appellees did not provide comparative sales from outside the class period to suggest that these were unusual.  Additionally, the confidential witness statements about backlog cancellations occurring “suddenly” in “late summer” corroborated Textron’s statements and did not establish scienter.  None of Appellees’ scienter allegations were sufficient to meet the burden of the PSLRA’s heightened pleading standards; therefore, the appellate court affirmed the dismissal of the claim.

The primary materials for this case may be found on the DU Corporate Governance website.



Koehler on the FCPA

Mike Koehler (SIU) has posted Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure on SSRN with the following abstract:

High-profile instances of Foreign Corrupt Practices Act scrutiny focus attention on the law and its enforcement across a broad spectrum. In spring 2012, arguably the most high-profile instance of scrutiny in the FCPA’s 35-year history occurred as Wal-Mart’s alleged conduct in Mexico dominated the news cycle. Wal-Mart’s scrutiny has been instructive in many ways at a key point in time for the FCPA. This article uses Wal-Mart’s potential FCPA exposure as a prism to view the current FCPA enforcement environment.


Yudell v. Gilbert: Distinguishing Direct and Derivative Claims

In Yudell v. Gilbert, 2012 N.Y. Slip Op. 05896, 2012 WL 3166788 (N.Y. App. Aug. 7, 2012) the Appellate Division of the New York Supreme Court affirmed the dismissal of an action brought by a joint venture, holding that the breach of fiduciary duty claim was derivative, not direct, and the plaintiffs, a few members of a joint venture, failed to plead demand futility with requisite particularity.

In 1965, Baldwin Harbor Associates (BHA) was formed as a joint venture for the purpose of constructing and managing a shopping center. BHA hired Jerrold Gilbert (“Gilbert”) as the managing agent for the shopping center, responsible for billing and collecting rents and maintaining and repairing the premises. Gilbert later became a trustee of one trust set up as the successor venture partner to a deceased partner of BHA.

In 2008, the plaintiffs filed suit against Gilbert as an individual, the other members of BHA, and BHA as a nominal defendant, alleging both direct and derivative claims. On appeal were five causes of action pled by the plaintiffs stemming from Gilbert’s alleged failure to timely and regularly collect additional rents and charges including tax obligations and common area maintenance as required by the leases, and his decision to enter into third-party contracts on behalf of BHA. The specific claims against Gilbert were for his failure to properly account to the joint venture partnership, breach of the management agreement, negligence, breach of the joint venture agreement, and breach of the fiduciary duty he owed to BHA and each of the joint venture partners.

To bring derivative claims, a plaintiff must first make demand on the board of directors. The demand requirement may be waived if it would be futile. Futility will occur where the board is not independent or the decision is not protected by the business judgment rule. The plaintiffs alleged demand futility, but did not plead futility with the required degree of particularity. The plaintiffs argued that the pleading requirement was unnecessary because the fiduciary duty claim was direct rather than derivative.

The court adopted the Delaware framework to determine whether a claim was direct or derivative. This required the court to

look to the nature of the wrong and to whom the relief should go. The stockholder’s claimed direct injury must be independent of any alleged injury to the corporation. The stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation.

A court should, therefore, look to “(1) who suffered the alleged harm (the corporation or the stockholders); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually).”

Accordingly, the court held that the plaintiffs’ claim of breach of fiduciary duty was derivative because any loss suffered by the plaintiffs derived from a loss to BHA. Additionally, any recovery on the claims would equal the value of lost rent and charges that would be to the benefit of BHA; the plaintiffs would receive their proportionate share of the recovery after BHA received its recovery and divided it among the members of the entity.

Because the plaintiffs’ failed to sufficiently plead demand futility, the claims were properly dismissed. As the lower court dismissed the claims without prejudice, the plaintiffs would be afforded the opportunity to amend the complaint and refile.

The primary materials for this case may be found on the DU Corporate Governance website.


When in Doubt, Don’t Show Up: DC Circuit Reversed and Remanded SEC’s Default Order in Rapoport v. SEC

In Rapoport v. SEC, the D.C. Circuit Court of Appeals granted petitioner Rapoport’s petition for review, vacated the Security and Exchange Commission’s (“SEC”) default order, and remanded for further proceedings.  The court concluded that the SEC had arbitrarily applied Rule 155(b) of its Rules of Practice and failed to provide a comprehensible standard for what constituted a reasonable time to file a motion to set aside a default.  Rapoport v. SEC, 2012 WL 2298772 (D.C. Cir., June 19, 2012). 

The SEC entered a default judgment against Dan Rapoport (“Rapoport”), a Russian citizen, for failing to respond to administrative proceedings alleging violations of Section 15(a) of the Exchange Act. According to the SEC’s Order Instituting Proceedings (“OIP”), Rapoport “solicited institutional investors in the United States to purchase and sell thinly-traded stocks of Russian companies . . . without registering as a broker-dealer as required by Section 15(a) of the Exchange Act” or meeting an exemption under Rule 15a-6.  17 CFR 240.15a-6. 

Rapoport filed a motion to set aside the default.  Under Rule 155(b) of the Exchange Act, a motion to set aside a default must (1) be made within a reasonable time; (2) state the reasons for the failure to appear or defend; and (3) specify the nature of the proposed defense to the original proceeding. 17 C.F.R. § 201.155(b).  If the SEC finds “good cause shown,” the default can be set aside at any time.

The SEC determined that Rapoport failed to file his motion within a reasonable time and that his reason for failing to defend the OIP lacked merit.  Because the first two prongs of Rule 155(b) were not met, the SEC did not consider the merits of Rapoport’s defenses. 

The court held that by failing to consider Rapoport’s defenses, the SEC departed from its previous interpretation of Rule 155(b) and did so without justifying the inconsistency.  The court stated that “[a]lthough the Commission is not bound to follow its precedent, it may not depart from its precedent without offering a reasoned explanation.”

The DC Circuit also held that the Commission “failed to provide any intelligible standard to assess what constitutes a ‘reasonable’ amount of time for filing a motion to set aside a default order under Rule 155(b).”  It was unclear when the “reasonable time” clock started ticking and what amount of time was reasonable to file a motion to set aside a default after the clock had begun.    

Finally, the court suggested that the SEC review the sanctions it applied in the default judgment.  Rapoport was charged with a second-tier penalty for each year of the alleged violations.  There were, however, no specific allegations of Rapoport’s violations to support the charges. The SEC instead relied on conclusory allegations that Rapoport willfully violated Section 15(a), which alone are not enough to justify maximum second-tier penalties without further explanation.  The court held that the SEC’s further explanation “was not just superficial, it was non-existent.”

The primary materials for this case may be found on the DU Corporate Governance website.

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