District Court Upholds Forum Selection Provision for Claims Brought Derivatively Under Section 10(b)

In what appears to be a novel decision, the US District Court for the Northern District of Texas recently upheld a Delaware forum-selection clause as to claims asserted derivatively under Section 10(b) of the Exchange Act.  As Cydney Posner observes in this Cooley PubCo post (and as we recently wrote […]

On Remand, Texas District Court Concludes Fifth Circuit Dealt ‘Iatrogenic Blow’ to Securities Plaintiff, Dismisses Case

As discussed in a previous blog post, the US Court of Appeals for the Fifth Circuit issued a January 2023 decision that reversed the dismissal of a putative securities class action against Six Flags on the grounds that the plaintiff’s complaint adequately stated a claim for securities fraud. In a […]

Ninth Circuit Upholds Delaware Forum-Selection Clause, Dismisses Federal Derivative Action

On June 1, 2023, the US Court of Appeals for the Ninth Circuit held in a split en banc decision that forum-selection clauses requiring shareholders to file derivative claims in the Delaware Court of Chancery are enforceable as applied to claims asserted derivatively under Section 14(a) of the Securities Exchange […]

Unanimous Supreme Court Decision Limits Scope of Direct Listing Lawsuits

The US Supreme Court unanimously ruled that a shareholder suing under Section 11 of the Securities Act of 1933 must demonstrate that their shares are traceable to the allegedly misleading registration statement – a holding that will limit the scope of lawsuits brought by investors who purchase shares from companies […]

Cornerstone Research Report Highlights Rise in SEC Accounting and Auditing Enforcement

According to a new report by Cornerstone Research (a leading consulting and expert testimony firm), the Securities and Exchange Commission initiated 55% more actions involving accounting and auditing enforcement in fiscal year 2022 than it did in FY 2021. The report examines recent trends in the SEC’s enforcement of accounting […]

Supreme Court Hears Oral Argument in Slack Direct Listing Case

The Supreme Court heard oral argument on Monday in Slack Technologies v. Pirani, which presents the question of whether shareholders in a direct listing have standing to sue under Sections 11 and 12 of the Securities Act of 1933. As we discussed in a previous post, the Ninth Circuit held […]

Fourth Circuit Issues Decisive Opinion Affirming Dismissal of Securities Class Action Against MacroGenics

Biotech companies are often faced with a dilemma – they need to raise capital to develop novel therapies, and in doing so, they often express honest optimism about interim and topline results from their drugs in development. But they cannot be reasonably expected to disclose all results or interpretations of […]

DOJ Issues Further Guidance, Warnings on Ephemeral Messaging Apps

At the March 2023 American Bar Association National Institute on White Collar Crime, senior Department of Justice officials offered their most expansive guidance yet about the dangers of using ephemeral messaging for company communications. Officials noted that when conducting an investigation, DOJ prosecutors will consider a company’s use of ephemeral and […]

Oklahoma Firefighters Pension & Retirement Systems v. Six Flags:
Fifth Circuit Opinion Reviving Securities Class Action Creates Tension with Other Circuits on Key Issues

Introduction On January 18, 2023, the Fifth Circuit unanimously reversed the Northern District of Texas’s dismissal of a securities class action contending that Six Flags and two of its executives misled investors by projecting impossible timelines for opening new theme parks in China, which were anticipated to be highly profitable. […]

Considering Texting About Work? Beware.

As the rise in remote work has led to an increased reliance on mobile devices to stay connected – with cellphones at our fingertips virtually 24/7 – the use of third-party messaging applications to communicate about work has become commonplace. From WhatsApp to Telegram, corporate executives, financial services professionals and […]