Posts Tagged ‘Liability standards’

Supreme Court’s Omnicare Decision Muddies Section 11 Opinion Liability Standards

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday March 31, 2015 at 9:05 am
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Editor’s Note: The following post comes to us from Jon N. Eisenberg, partner in the Government Enforcement practice at K&L Gates LLP, and is based on a K&L Gates publication by Mr. Eisenberg. The complete publication, including footnotes, is available here.

The Supreme Court has a long history of rejecting expansive interpretations of implied private rights of action under Section 10(b) of the Securities Exchange Act. Most notably, since 1975, it rejected the argument that mere holders, rather than only purchasers and sellers, may bring private damage actions under Section 10(b), rejected the argument that Section 10(b) liability may be imposed based on negligence rather than scienter, rejected the argument that Section 10(b) may be applied to “unfair” as opposed to fraudulent conduct, rejected the argument that purchase price inflation is enough to show damages under Section 10(b), rejected the argument that Section 10(b) reaches aiders and abettors rather than only primary violators, and rejected efforts to muddy the distinction between primary and secondary liability under Section 10(b).

The Court, however, has barely even mentioned Section 11 of the Securities Act in its opinions, much less interpreted it. Section 11, unlike Section 10(b), 1) provides an express private right of action, 2) is limited to misrepresentations and omissions in a registration statement, and 3) requires no proof of culpability although defendants other than an issuer have due diligence affirmative defenses. The Supreme Court’s March 24, 2015 decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, No. 13-435, is the Court’s first meaningful foray into Section 11. Unfortunately, the decision, which addresses opinion liability under Section 11, provides an amorphous standard that is likely to lead to unpredictable results. It should provide little comfort to plaintiffs or defendants and should make defendants more cautious about including unnecessary opinions in registration statements and, where appropriate, should lead them to carefully qualify opinions that they do include.

…continue reading: Supreme Court’s Omnicare Decision Muddies Section 11 Opinion Liability Standards

Supreme Court Clarifies Liability for Opinions in Registration Statements

Posted by Robert J. Giuffra, Jr., Sullivan & Cromwell LLP, on Saturday March 28, 2015 at 9:33 am
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Editor’s Note: Robert Giuffra is a partner in Sullivan & Cromwell’s Litigation Group. The following post is based on a Sullivan & Cromwell publication by Mr. Giuffra, Brian T. Frawley, Brent J. McIntosh, and Jeffrey B. Wall; the complete publication, including footnotes, is available here.

On March 24, 2015 in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, No. 13-435, the U.S. Supreme Court addressed the requirement in Section 11 of the Securities Act of 1933 that a registration statement not “contain[] an untrue statement of a material fact” or “omit[] to state a material fact … necessary to make the statements therein not misleading.” Specifically, the Court considered what plaintiffs need to plead under each of those phrases with respect to statements of opinion. The Court’s guidance is significant in light of the importance of pleading standards and motions to dismiss in securities litigation. The Court held, consistent with a majority of the federal courts of appeals, that a pure statement of opinion offered in a Section 11 filing is “an untrue statement of material fact” only if the plaintiff can plead (and ultimately prove) that the issuer did not actually hold the stated belief. At the same time, the Court held that the omission of certain material facts can render even a pure statement of opinion actionably misleading under Section 11. But the Court emphasized that pleading an omissions claim will be difficult because a plaintiff must identify specific, material facts whose omission makes the opinion statement misleading to a reasonable person reading the statement fairly and in context. The Supreme Court’s decision should curtail Section 11 litigation over honestly held opinions that turn out to be wrong, but it may cause the plaintiffs’ bar to bring claims that issuers have not accompanied their opinions with sufficient material facts underlying those opinions. To ward off the risk of such lawsuits, issuers should consider supplementing their disclosure documents with information about the bases of their opinions that could be material to a reasonable investor.

…continue reading: Supreme Court Clarifies Liability for Opinions in Registration Statements

Corporate Risk-Taking and the Decline of Personal Blame

Posted by Steven L. Schwarcz, Duke University, on Thursday February 12, 2015 at 8:51 am
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Editor’s Note: Steven L. Schwarcz is the Stanley A. Star Professor of Law & Business at Duke University School of Law.

Federal agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008 financial crisis and its resulting banking failures. This article analyzes why—contrary to a longstanding historical trend—personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to try to innovate and create value in the increasingly competitive and complex global economy. This article examines how law should control that risk-taking and internalize its costs without impeding broader economic progress, focusing on two key elements of that inquiry: the extent to which corporate risk-taking should be regarded as excessive, and the extent to which personal liability should be used to control that excessive risk-taking.

…continue reading: Corporate Risk-Taking and the Decline of Personal Blame

Liabilities Under the Federal Securities Laws

Posted by Paul Vizcarrondo, Wachtell, Lipton, Rosen & Katz, on Saturday September 13, 2014 at 9:00 am
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Editor’s Note: Paul Vizcarrondo is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz specializing in corporate and securities litigation and regulatory and white collar criminal matters. This post is based on the introduction of a Wachtell Lipton memorandum by Mr. Vizcarrondo; the complete publication is available here.

This post deals with certain of the liability provisions of the federal securities laws: §§ 11, 12, 15 and 17 of the Securities Act of 1933 (the “Securities Act”), and §§ 10, 18 and 20 of the Securities Exchange Act of 1934 (the “Exchange Act”). It does not address other potential sources of liability and sanction, such as federal mail and wire fraud statutes, state fraud statutes and common law remedies, RICO and the United States Securities and Exchange Commission’s (“SEC”) disciplinary powers.

On December 22, 1995, the Private Securities Litigation Reform Act of 1995 (the “Reform Act” or “PSLRA”) became law after the Senate overrode President Clinton’s veto. Pub. L. No. 104-67, 109 Stat. 737 (1995). Where relevant, this post discusses changes and additions that the PSLRA made to the liability provisions of the Securities Act and the Exchange Act.

…continue reading: Liabilities Under the Federal Securities Laws

A Strict Liability Regime for Rating Agencies

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Monday August 25, 2014 at 9:02 am
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Editor’s Note: The following paper comes to us from Alessio Pacces and Alessandro Romano, both of the Erasmus School of Law at Erasmus University Rotterdam.

In our recent ECGI working paper, A Strict Liability Regime for Rating Agencies, we study how to induce Credit Rating Agencies (CRAs) to produce ratings as accurate as the available forecasting technology allows.

Referring to CRAs, Paul Krugman wrote that: “It was a system that looked dignified and respectable on the surface. Yet it produced huge conflicts of interest. Issuers of debt […] could choose among several rating agencies. So they could direct their business to whichever agency was most likely to give a favorable verdict, and threaten to pull business from an agency that tried too hard to do its job.”

However, the conflicts of interest stemming from the issuer-pays model and rating shopping by issuers are not sufficient to explain rating inflation. Because ratings are valuable only as far as they are considered informative by investors, in a well-functioning market, reputational sanctions should prevent rating inflation.

…continue reading: A Strict Liability Regime for Rating Agencies

Senior Manager Liability for Derivatives Misconduct: The Buck Stops Where?

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Saturday May 3, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Clifford Chance LLP and is based on a Clifford Chance publication by David Yeres, Edward O’Callaghan, and Alejandra de Urioste; the full text, including footnotes, is available here.

The buck, so to speak, does not necessarily stop with the individual who personally violates the U.S. Commodity Exchange Act (“CEA”), which regulates a wide array of commodities and financial derivatives trading, including swaps (in addition to traditional futures contracts and physical commodities trading) in U.S. markets or otherwise engaged in by or with any U.S. person. Rather, as illustrated by a recent court ruling permitting regulatory charges to go forward against the former CEO of MF Global, Jon Corzine, liability can extend to senior managers, even if they are not regulatory supervisors and have not culpably participated in any misconduct.

…continue reading: Senior Manager Liability for Derivatives Misconduct: The Buck Stops Where?

Court May Expand Officer/Shareholder Liability Resulting from US Customs Violations

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Tuesday March 25, 2014 at 9:19 am
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Editor’s Note: The following post comes to us from Sydney H. Mintzer, partner in the international trade practice at Mayer Brown LLP, and is based on a Mayer Brown Legal Update by Mr. Mintzer and Jing Zhang.

On March 5, 2014, the US Court of Appeals for the Federal Circuit agreed to constitute an en banc panel to reconsider a decision issued by the court in Trek Leather Inc. et al. v. United States. [1] The entire court will reconsider a July 30, 2013 decision issued by a three-judge panel holding that the government had to prove officers and/or shareholders had aided or abetted fraud, or otherwise took actions that justified piercing the corporate veil, in order to hold them personally liable for US customs law violations committed by a corporate entity. [2] If the full court overrules the three-judge panel, the benefits of incorporation would be mitigated with respect to an officer or shareholder’s actions that result in US customs law violations.

…continue reading: Court May Expand Officer/Shareholder Liability Resulting from US Customs Violations

The Governance Structure of Shadow Banking

Posted by Steven L. Schwarcz, Duke University, on Thursday February 6, 2014 at 9:16 am
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Editor’s Note: Steven L. Schwarcz is the Stanley A. Star Professor of Law & Business at Duke University School of Law.

In prior articles (see, e.g., Regulating Shadows: Financial Regulation and Responsibility Failure, 70 Wash. & Lee L. Rev. 1781 (2013)), I have argued that shadow banking is so radically transforming finance that regulatory scholars need to rethink certain of their basic assumptions. In a forthcoming new article, The Governance Structure of Shadow Banking: Rethinking Assumptions About Limited Liability, I argue that the governance structure of shadow banking should be redesigned to make certain investors financially responsible, by reason of their ownership interests, for their firm’s liabilities beyond the capital they have invested. This argument challenges the longstanding assumption of the optimality of limited liability.

…continue reading: The Governance Structure of Shadow Banking

The Alcoa FCPA Settlement: Are We Entering Strict Liability Anti-Bribery Regime?

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday February 5, 2014 at 9:14 am
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Editor’s Note: The following post comes to us from Gregory M. Williams, partner focusing on complex commercial litigation and arbitration and the Foreign Corrupt Practices Act at Wiley Rein LLP, and is based on a Wiley Rein article by Mr. Williams, Ralph J. Caccia, and Richard W. Smith.

“This Order contains no findings that an officer, director or employee of Alcoa knowingly engaged in the bribe scheme.”

There are several notable aspects of aluminum producer Alcoa, Inc.’s (“Alcoa”) recent FCPA settlement. The $384 million in penalties, forfeitures and disgorgement qualify as the fifth largest FCPA case to date. Further, it is remarkable that such a large monetary sanction was imposed when the criminal charges brought by the U.K. Serious Fraud Office against the consultant central to the alleged bribery scheme were dismissed on the grounds that there was no “realistic prospect of conviction.” Perhaps most striking, however, is the theory of parent corporate liability that the settlement reflects. Although there is no allegation that an Alcoa official participated in, or knew of, the improper payments made by its subsidiaries, the government held the parent corporation liable for FCPA anti-bribery violations under purported “agency” principles. Alcoa serves as an important marker in what appears to be a steady progression toward a strict liability FCPA regime.

…continue reading: The Alcoa FCPA Settlement: Are We Entering Strict Liability Anti-Bribery Regime?

Carried Interests: Current Developments

Editor’s Note: Joseph Bachelder is special counsel in the Tax, Employee Benefits & Private Clients practice group at McCarter & English, LLP. This post is based on an article by Mr. Bachelder which first appeared in the New York Law Journal.

The tax status of so-called “carried interests,” held by private equity fund sponsors (and benefitting, in particular, the individual managers of those sponsors) is the subject of this post. A decision by the U.S. Court of Appeals for the First Circuit holding that a private equity fund was engaged in a trade or business for purposes of the withdrawal liability provisions of ERISA (Employee Retirement Income Security Act) has caused considerable comment on the issue of whether a private equity fund might also be held to be in a trade or business (and not just a passive investor) for purposes of capital gains tax treatment on the sale of its portfolio companies. Proposed federal income tax legislation, beginning in 2007 and continuing into 2013, also has raised concern as to the status of capital gains tax treatment for holders of carried interests. The following post addresses both of these developments.

…continue reading: Carried Interests: Current Developments

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