This article addresses the lower courts’ application of the Supreme Court’s recent class action securities decision in Halliburton Co. v. Erica P. John Fund, Inc., 134S.Ct. 2398, 2412 (2014), which permits defendants to rebut fraud-on-the-market reliance at the class certification stage. The article will also seek to provide securities litigators with the lay of the land post-Halliburton.
Published by Bloomberg BNA, the treatise covers all aspects of the FINRA arbitration process, including prehearing matters, motion practice, hearings, and awards, and also provides a detailed guide to FINRA investigations and enforcement actions.
The U.S. Supreme Court granted cert on Halliburton’s petition for challenging the Basic v. Levinson precedent on fraud-on-the-market theory. What are the arguments on both sides of this issue and what will the Court likely hold? This article will explore arguments on both sides of this issue and it's potential impact to certification of securities fraud class actions.
In Halliburton Co. v. Erica P. John Fund, Inc., the U.S. Supreme Court will decide whether to overrule or modify the “fraud-on-the-market” presumption of reliance in 10b-5 securities fraud class actions. The fraud-on-the-market presumption has helped plaintiffs surmount the class certification hurdle for over 25 years, and if it is overruled or modified, class certification in securities fraud cases may become a more challenging — and costly — endeavor.
This fifth article in a series exploring trends in class action law examines the ultimate meaning of Comcast as applied to products class actions. It concludes that the Supreme Court may simply be waiting for more circuit courts to weigh in on the meaning of Comcast before issuing a clarifying decision.
Employment class actions are disruptive, and at their worst, can be costly PR nightmares. Recent SCOTUS decisions may ultimately reduce the threat of employment class actions — but this hasn’t quite happened yet.
The Target data breach made headlines across the country and resulted in over fifty purported class action suits against the retailer. This is a warning shot over the bow for other companies. Privacy class actions are on the rise.
Regardless of which side ultimately benefits, the Supreme Court's message for antitrust litigants is clear: Class action is an exception to the usual rule.
Recent Supreme Court decisions have made the arbitration clause a potent weapon against class actions in many areas of the law. Certainly in the wake of Concepcion, Italian Colors, and Oxford, businesses should consider including in their contracts specific language regarding arbitration clauses.
It’s a changed world for class action litigation, thanks to the U.S. Supreme Court – one in which arbitration agreements are powerful, and class certification may be significantly more difficult to achieve. This article contains practice tips for navigating the new, and still evolving, legal landscape.
The recent comScore decision and others allowing privacy cases to proceed in the absence of actual damages may imply that the legal landscape is changing. In fact, comScore suggests that if a lead plaintiff in a purported privacy class action can overcome the standing hurdle by citing statutory damages, then the class certification hurdle may also be manageable.
A discussion about the erroneous predictions made about the outcomes of this case. Why were they made and how can we learn from these examples?
A discussion on how choosing an office space perfectly suited for your firm’s corporate culture can boost morale, productivity, and most importantly the bottom line.
This alert discusses the importance of oral advocacy in any case and what improvements are needed in order save this method of argument from extinction.
A helpful guide for hedge funds to remain compliant and mitigate risk of investigation, specifically under the heavy hand of recent regulatory legislation.
Litigation and Arbitration
The firm handles major cases in federal and state trial and appellate courts, before government agencies, and in a wide variety of domestic and international arbitration settings. Our experience in civil litigation covers a number of substantive areas, including antitrust and unfair competition, bankruptcy litigation and counseling, class action defense, commercial disputes, directors and officers litigation, employment, healthcare litigation, partnership disputes, products liability, real estate litigation, and securities litigation.
Our attorneys have significant experience handling appeals before federal and state appellate courts across the country and regularly represent organizations as amicus curiae in appellate matters presenting legal questions with broad policy implications. The firm has successfully handled appeals in cases where we represented a party in the lower court and in cases where we have specifically been brought in for our appellate proficiency. Our attorneys have clerked for judges on numerous federal district and appellate courts.
With every dispute, in any forum, we offer thoughtful counseling before a decision is made to litigate, and we have substantial experience in negotiating favorable pre-litigation settlements for our clients where appropriate.
If a pre-litigation settlement is not feasible or advisable, we are skilled at using the pretrial process to put our cases in the best posture for disposition by motion, settlement, or trial. Our litigators are first-rate trial lawyers: we have successfully handled hundreds of trials, arbitration hearings, and administrative procedures in state and federal courts across the country and in every major type of arbitration forum. We have an outstanding record in high-stakes, high-profile litigation, including cases involving claimed damages in the hundreds of millions of dollars.
Our trial experience helps us manage the discovery process efficiently and cost-effectively by keeping the focus on the facts that will advance our claims or defenses at trial. And that same focus — along with our intensity, creativity, and negotiating skill — helps us settle cases on excellent terms.
Our litigation and arbitration team has been recognized in leading rankings publications. Legal 500 described the firm’s strong commitment to client service and praised us as “one of the best mid-sized firms.” It also noted that the firm “differentiates itself by the creativity and flexibility it brings to its work, enabling it to handle disputes across an incredibly wide number of subject areas.” Chambers recognized the firm’s strong financial litigation practice, and noted that our attorneys “put themselves in their clients' shoes and use litigation as a tool to advance their clients' causes or solve their problems in a creative, efficient and cost-effective manner.”
We assist clients in a wide range of corporate matters, including mergers and acquisitions, private equity and venture capital financing, fund formation, corporate governance, and securities law compliance. Our attorneys represent public companies, early-stage and late-stage private companies, venture capital and private equity funds, hedge funds, and investment banks. Our clients are involved in (among other things) financial services, technology (hardware, software, and technology services), life sciences (pharmaceuticals, medical devices, biotechnology, and healthcare ), oil & gas, consumer products, construction, manufacturing, real property, and the restaurant industry.
We also serve as outside general counsel to a number of privately held companies and regularly counsel publicly and privately held clients on executive compensation and employment issues.
Antitrust and Competition Litigation
Our Antitrust and Competition Litigation practice includes all aspects of private civil litigation relating to antitrust and competition disputes, representing clients in both civil and criminal enforcement matters, and counseling businesses on a range of antitrust and competition matters integral to their operations, including compliance with applicable regulations. We offer a cross-border perspective, with Antitrust and Competition Litigation team members in New York, Washington, D.C., and Europe.
Our attorneys have decades of experience litigating civil antitrust and competition disputes in trial and appellate courts, including defending clients in class action suits against allegations of cartel behavior, litigating disputes among companies relating to allegations of monopolization and other exclusionary conduct, and defending clients in FTC and DOJ civil enforcement actions. We routinely coordinate with economic experts in formulating litigation strategy and in preparing and presenting claims and defenses.
We regularly assist companies and executives in enforcement proceedings relating to allegations of criminal violations of antitrust and competition law. Our team includes a former trial attorney for the Antitrust division of the U.S. Department of Justice who spent five years handling criminal antitrust cases as well as several other former federal prosecutors. In cooperation with our Chambers and Legal 500-ranked white collar defense team, our antitrust litigators have a superb record in achieving favorable results for clients facing government enforcement actions. Further, we have particular strength in helping companies navigate parallel government and civil actions, working with them to determine the most advantageous litigation strategy when facing multiple actions relating to the same conduct.
Our attorneys also regularly assist companies in evaluating antitrust concerns that arise in the regular course of business or when evaluating potential mergers, acquisitions, and other transactions with competitive implications, and in representing parties to such transactions before the FTC, DOJ, and federal courts, including filing pre-merger notifications under the Hart-Scott Rodino Act.
We regularly draft, implement, and advise on antitrust compliance programs and provide antitrust compliance training for our clients.
Two partners in our Antitrust and Competition Litigation practice have served in leadership roles within the ABA Antitrust Section for years, and our senior attorneys regularly lecture and write on issues of interest to the antitrust community.
Class Action Defense
Our attorneys have extensive class action defense experience. We have represented major public companies – including manufacturers, consumer products companies, and financial services companies – in a broad range of putative class actions, including cases alleging products liability, product defects, consumer fraud, antitrust, false advertising, and securities law claims.
The firm's attorneys have successfully handled the most complex problems facing class action defendants by defeating motions for class certification, successfully arguing for removals and dismissals, enforcing class releases, and negotiating innovative settlements. Our lawyers have defeated class certification in over thirty consumer fraud class actions and have settled hundreds of liability cases on favorable terms.
Our lawyers also counsel clients on initiatives to address litigation risks and exposure, thus reducing the potential for future class actions. We strive to help our clients implement "best practices".
Our Chambers and Legal 500-recognized Commercial Litigation group represents clients in a broad range of complex commercial, business, and financial disputes in districts throughout the United States and in the international arena. We represent clients in lawsuits involving contract disputes, derivatives claims, breach of contract, shareholder disputes, fraud, tortious interference complaints, professional malpractice claims, unfair business practices, and private equity transactions. Our clients span multiple industries, including finance, software and technology, hospitality, and real estate.
Our attorneys employ their extensive trial experience to bring a strategic approach to each claim. We offer thoughtful counseling, and we scrupulously research each matter and are prepared to effectively and vigorously defend our clients at trial. We have successfully handled numerous trials, arbitration hearings, and administrative procedures in state and federal courts across the country and in every major type of arbitration forum. We have an outstanding record in high-stakes, high-profile litigation, including cases involving claimed damages in the hundreds of millions of dollars.
Our attorneys have experience in defending the most complex, sensitive, and high-stakes products liability cases and have an excellent track record of reducing our clients’ exposure, controlling costs, and achieving good results. We develop effective motion strategies to defeat class certification and to dismiss or materially limit claims. We craft successful strategies to deal with complex causation issues, discovery problems, and novel legal claims. And we have an excellent record of success in trials throughout the United States and overseas.
The firm has extensive expertise in all aspects of securities, shareholder, and derivative litigation. We have a deep understanding of complex financial products and the operations of the financial services sector, and we frequently represent broker-dealers, investment advisors, hedge funds, and private equity funds in securities litigation and FINRA arbitrations. Our Chambers and Legal 500-recognized Securities Litigation group has successfully represented clients in connection with the prosecution and defense of claims brought under the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisors Act of 1940, myriad SEC and FINRA regulations, and various state securities laws.
Our recent engagements include the defense of billion-dollar mortgage-backed securities class actions, the successful representation of a major broker dealer in multiple FINRA arbitrations related to the sales and marketing of auction rate securities, the representation of issuers and their senior executives in connection with claims of improper disclosure and securities fraud, and the representation of clients in litigation related to bond offerings. The firm is equipped to effectively handle the most complex securities cases in a manner that provides superior and cost-efficient results for our clients.
In addition to representing clients in over one hundred securities arbitrations, we recently authored a FINRA Arbitration and Enforcement treatise for Bloomberg BNA. It examines proceedings involving FINRA in its dual capacities as a forum for dispute resolution and as a securities industry regulator.
Corporate Governance and Disclosure
The firm’s Corporate group represents public and private companies, boards of directors, board committees, and significant investors in connection with a wide range of corporate governance issues. Our clients turn to us for advice on board composition and independence, audit committee practices, risk management, executive compensation, and other governance matters. We help publicly traded companies comply with NYSE, NASDAQ, Euronext, and other stock exchange listing requirements and prepare for shareholder engagement. We provide counsel to both public and private company boards of directors, special committees, significant shareholders, and management on fiduciary duty and fairness reviews of corporate transactions.
We help public companies comply with SEC reporting requirements, including requirements under the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Sarbanes-Oxley Act, as well as with reporting requirements under the Transparency Directive of the European Union. We assist in the preparation or review of annual, quarterly, and current reports, proxy statements, insider transaction reports, and other documents filed with the SEC or the French Autorité des marchés financiers (AMF), and provide advice on informal disclosure, including press releases, conference calls, and social media communications. We provide advice on the development of equity compensation arrangements that align the interests of management with those of stockholders. Our deep experience enables us to give efficient, pragmatic, and strategically sound advice regarding disclosure and SEC compliance.
Our publicly traded clients include companies incorporated outside the U.S. (often meeting the definition of “foreign private issuer” under SEC regulations), recent IPO companies, and seasoned U.S. and French companies of all sizes. We also assist in the formation of not-for-profit and benefit corporations and advise them on governance and compliance matters.
Mergers and Acquisitions
Our corporate lawyers have deep experience in mergers and acquisitions and regularly represent buyers and sellers in negotiated acquisitions and sales of privately and publicly held companies and businesses. We have cultivated an understanding of client perspectives and goals that helps us to identify issues early in the process and devise practical solutions consistent with our clients’ business strategies.
Our attorneys regularly handle stock and asset purchases, mergers, management buyouts, leveraged acquisitions, cross-border transactions, and roll-up transactions. We also represent companies and shareholders in the purchase and sale of minority and controlling interests and counsel clients in connection with acquisition financing.
Our clients include private equity firms as well as strategic buyers and sellers. We represent clients in the consumer products, energy, entertainment, insurance, banking, financial services, computer software and technology, biotechnology, healthcare, automotive and transportation, luxury products, fashion and cosmetics, travel, telecommunications, e-commerce, retail, beverages, advertising, and print media industries. We are well versed in the markets in which our clients operate, allowing us to maintain a commercial approach that maximizes efficiency, reduces costs, and enhances deal execution. Our M&A practice in France was recently recognized in the 2016 and 2017 editions of The Legal 500 and in the 2017 edition of Chambers Europe.
Private Equity and Venture Capital
We represent private equity and venture capital firms and portfolio companies in financing and acquisition transactions. Our services to funds and their managers include: fund formation; assistance with initial and follow-on investments; corporate governance issues for portfolio companies; and the negotiation and implementation of various exit strategies, such as the sale of the company, an IPO or other public offering, a private refinancing, or the secondary sale of the fund’s investment interest. We counsel funds and their managers with respect to regulatory matters under the Investment Advisers Act of 1940, the Investment Company Act of 1940, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Financial Services and Markets Act (U.K.) and the Alternative Investment Fund Managers Directive (EU), and other financial regulations. We also advise funds and their managers in their various activities and obligations as investors in public and private companies.
We assist managers, funds, and their portfolio companies in transactions with investors and co-investors, and in their strategies for financing and growth, including acquisitions, distressed debt transactions, and public and private offerings.
We also help startup and emerging companies prepare for and negotiate initial rounds of investment and provide advice on all aspects of their business. Our entrepreneurial culture, flexible approach, and understanding of evolving market terms enable us to craft solutions that will meet the needs of growing companies.
Arbitration and Mediation
The firm’s Arbitration and Mediation attorneys advise clients in connection with every aspect of arbitration, mediation, and other alternatives to traditional litigation. We handle substantial matters before a variety of domestic and international arbitration platforms, including the AAA, FINRA, ICC, JAMS, and UNCITRAL. We recognize that arbitration and mediation matters require a different approach from traditional litigation, and we guide our clients through the process in a cost-efficient and streamlined manner.
In addition to the advocacy done by our litigators, our corporate attorneys regularly advise clients on and negotiate arbitration clauses in prospective transactions. We provide advice on clauses relating to every aspect of arbitration, including forum choice, pre-dispute resolution negotiation and mediation, and arbitration rule selection and modification.
Oil and Gas
Our Corporate group includes lawyers with business and legal experience representing companies involved in natural resources, commodities, energy, and oil and gas.
This experience includes working in management positions for international oil and gas companies and representing oil and gas companies in connection with their ongoing business activities, joint ventures, and acquisitions. Our lawyers also have experience representing public utility, mining, and energy companies in public reporting, financing and acquisitions, private investment funds in connection with their energy investments, investment bankers in the analysis of acquisitions of oil and gas companies, and commodities firms in complex commodity derivatives transactions.
Employment Law – U.S.
The firm’s U.S.-based Employment Litigation and Counseling group advocates for employers and executives in state and federal court actions as well as before the Equal Employment Opportunity Commission, the New York State Division of Human Rights, and the New York City Commission on Human Rights. We have successfully handled matters centering on restrictive covenants, trade secrets, wrongful termination, discrimination, wages and benefits, and whistleblowing and retaliation claims.
Our attorneys also have significant experience counseling employers and executives on contractual and business matters. We regularly provide advice regarding reductions in force, separation and termination, employment contracts, executive compensation, confidentiality agreements, restrictive covenants, consulting and work for hire agreements, the Fair Labor Standards Act, and ERISA litigation. We also counsel employers on employment policies and practices to help our clients limit risk, avoid litigation, and increase efficiencies, including drafting employment handbooks, social media and privacy policies, and incident response plans.
The firm was also appointed by the U.S. District Court for the Eastern District of New York to monitor the Fire Department of New York and is helping address its hiring and employment practices, including overseeing the recruitment, testing, hiring, training, and promotion of entry-level firefighters.