Mealey's Securities
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October 3, 2018
Divided 2nd Circuit Vacates Dismissal Of Claims In Shareholder Derivative Suit
NEW YORK — A divided Second Circuit U.S. Court of Appeals panel on Oct. 2 ruled that a federal district court erred in holding that a plaintiff’s lack of standing in a shareholder derivative lawsuit after the sale of a nominal defendant to a third party deprived the district court of jurisdiction (Terry Klein v. Qlik Technologies Inc., et al., No. 17-3218, 2nd Cir., 2018 U.S. App. LEXIS 27879).
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October 2, 2018
Musk, Tesla Each To Pay $20M Penalty To SEC For Twitter Posts
NEW YORK — Just two days after the Securities and Exchange Commission sued Tesla Inc. CEO Elon Musk in New York federal court on claims that a series of social media posts he made in August stating that he was considering taking the company private violated federal securities laws, Musk agreed on Sept. 29 to pay a $20 million civil penalty to settle the claims against him (U.S. Securities and Exchange Commission v. Elon Musk, No. 18-8865, S.D. N.Y.).
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October 1, 2018
High Court Review Of Loss-Causation Pleading Standard In Securities Suit Denied
WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 1 declined review of a Sixth Circuit U.S. Court of Appeals ruling in a securities class action lawsuit against for-profit hospital operator Community Health Systems Inc. (CHS) and certain of its executive officers in which CHS claimed that the Sixth Circuit applied a case-by-case loss-causation pleading standard that created a split among the circuits as to the proper application of the pleading standard (Community Health Systems Inc., et al. v. New York City Employees’ Retirement System, et al., No. 17-1453, U.S. Sup.).
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September 28, 2018
Lead Plaintiff’s Securities Claims Against Caterpillar Ruled Not Actionable
CHICAGO — A federal judge in Illinois on Sept. 26 ruled that a lead plaintiff in a securities class action lawsuit against construction, mining and forestry machinery manufacturer Caterpillar Inc. failed to sufficiently plead any actionable misstatements or omissions to support its claims that the company and certain of its senior executives concealed, in violation of federal securities laws, the substantial risk to Caterpillar’s tax position and subsequent governmental investigations into its creation of a Swiss subsidiary (Société Générale Securities Services GmbH v. Caterpillar Inc., et al., No. 17-1713, N.D. Ill., 2018 U.S. Dist. LEXIS 164739).
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September 28, 2018
SEC Sues Tesla CEO Over Tweets Saying He Was Taking Company Private
NEW YORK — The U.S. Securities and Exchange Commission on Sept. 27 sued Tesla Inc. CEO Elon Musk in New York federal court, alleging that a series of social media posts Musk made in August stating that he was considering taking Tesla Inc. private violated federal securities law (U.S. Securities and Exchange Commission v. Elon Musk, No. 18-8865, S.D. N.Y.).
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September 27, 2018
General Partnership Interests Qualify As Securities, Panel Rules
PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel on Sept. 26 ruled that a federal district court properly found that general partnership interests sold by a financial planner and his company were investment contracts and, thus, qualify as securities under federal law and that the financial planner violated federal securities laws by selling unregistered securities and defrauding investors (U.S. Securities & Exchange Commission v. E. Andrew Schooler, et al., No. 16-55167, 9th Cir., 2018 U.S. App. LEXIS 27449).
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September 26, 2018
Failure To Plead Falsity, Scienter Leads To Dismissal Of Netflix Securities Suit
SAN FRANCISCO — A federal judge in California on Sept. 25 ruled that the lead plaintiff in a securities class action against Netflix Inc. and certain of its senior executives failed to sufficiently show that the defendants’ alleged misstatements concealing the financial effects of the company’s enacted price increase on its subscription figures were false or misleading when made (James Ziolkowski v. Netflix Inc., et al., No. 17-1070, N.D. Calif., 2018 U.S. Dist. LEXIS 164641).
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September 26, 2018
Panel Finds ‘No Clear Error’ In Court’s Sentencing Of Ponzi Scheme Operator
NEW YORK — A Second Circuit U.S. Court of Appeals panel on Sept. 25 affirmed a federal district court’s sentencing of a convicted Ponzi scheme operator to 97 months’ imprisonment, ruling that there was “no clear error in the district court’s assessment” of the sentencing guidelines (United States of America v. James E. Neilsen, No. 16-389, 2nd Cir., 2018 U.S. App. LEXIS 27308).
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September 25, 2018
Sentencing In SEC Criminal Suit Affirmed On Appeal Under 11th Circuit Precedent
ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Sept. 21 affirmed a federal district court’s order sentencing a defendant to six months imprisonment followed by 18 months’ supervised release on charges that he violated 12 conditions of his supervised release on a previous sentencing for his role in obstructing Securities and Exchange Commission proceedings, ruling that its review of the appeal is precluded by the invited error doctrine (United States of America v. Robert J. Vitale, No. 18-10683, 11th Cir., 2018 U.S. App. LEXIS 27147).
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September 25, 2018
Trusts’ FINRA Claims Found To Be Not Arbitrable; Injunction Upheld
ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Sept. 24 ruled that a federal district court did not err in enjoining two investment trusts from initiating Financial Industry Regulatory Authority (FINRA) proceedings against a Canadian broker-dealer and eight partners that owned the broker-dealer because the trusts’ claims did not “arise in connection with” the defendants’ business activities and because FINRA rules do not require arbitration (Pictet Overseas Inc., et al. v. Helvetia Trust, et al., No. 17-12279, 11th Cir., 2018 U.S. App. LEXIS 27241).
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September 24, 2018
District Court’s Tellabs Analysis In Securities Suit Found To Be Adequate
PHILADELPHIA — A federal district court properly applied U.S. Supreme Court precedent in its analysis and did not err in dismissing a securities class action complaint against American car rental company Hertz Global Holdings Inc. and certain of its former executive officers because lead plaintiffs failed to properly plead scienter in making their federal securities law claims, a Third Circuit U.S. Court of Appeals panel ruled Sept. 20 (In re Hertz Global Holdings Inc., No. 17-2200, 3rd Cir., 2018 U.S. App. LEXIS 26865).
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September 24, 2018
Investors Found To Have Failed To Plead Securities Claims Against Mining Company
NEW YORK — A federal judge in New York on Sept. 20 ruled that the lead plaintiff in a securities class action lawsuit against a mining company and several of its senior officers failed to state a claim for relief in alleging that the defendants misrepresented the extent of three cyanide solution spills at the company’s mine in Argentina and the remedial measures taken to clean up the spills in violation of federal securities law (In re Barrick Gold Corp. Securities Litigation, No. 17-3507, S.D. N.Y., 2018 U.S. Dist. LEXIS 161081).
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September 21, 2018
Panel Sets Aside SEC ALJ Ruling Based On High Court’s Lucia Ruling
WASHINGTON, D.C. — In a one-page per curiam order, a District of Columbia Circuit U.S. Court of Appeals panel on Sept. 19 set aside a Securities and Exchange Commission order against co-managers of an investment fund for violations of federal securities laws and remanded the action to the SEC for a new hearing before either another administrative law judge (ALJ) or before the SEC itself in accordance with the U.S. Supreme Court’s recent ruling in Lucia v. SEC (Mohammed Riad, et al. v. Securities and Exchange Commission, No. 16-1275, D.C. Cir., 2018 U.S. App. LEXIS 26710).
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September 19, 2018
Altaba To Pay $47 Million In Settlement Of All Yahoo Data Breach Claims
WASHINGTON, D.C. — The rebranded Yahoo Inc. will pay approximately $47 million in a global settlement of all litigation arising from its historic data breach, the company said Sept. 17 in a filing with the Securities and Exchange Commission, which already fined the company $35 million for its handling of the breach.
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September 19, 2018
Panel Affirms Dismissal Of Securities Class Action For Failure To State 10(b) Claim
SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on Sept. 17 ruled that a federal district court judge did not err in dismissing a shareholder class action against a drug company and certain of its former executive officers for failure to plead material misrepresentations or omissions because the information allegedly misrepresented was publicly available prior to the statements being made and was “already part of the total mix of information available to investors” (Wahid Tadros v. Celladon Corp., et al., No. 16-56904, 9th Cir., 2018 U.S. App. LEXIS 26260).
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September 18, 2018
Russian Investor: Fracking Company’s ‘Fraudulent Scheme’ Cost Him $2.6 Million
SAN ANTONIO — A Russian citizen on Sept. 17 sued a hydraulic fracturing company in Texas federal court for securities fraud, seeking damages allegedly caused by the company’s “fraudulent scheme” in which he says the company violated federal laws and “successfully tricked” him into investing $2.6 million (Nikolay Rastorguev v. David Sepiachvili, et al., No. 18-966, W.D. Texas).
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September 14, 2018
U.S. Government Seeks To Reinstate Jury Verdict In Securities, Wire Fraud Suit
NEW YORK — A federal district court’s order granting a defendant in a securities and wire fraud criminal action a new trial pursuant to Second Circuit U.S. Court of Appeals precedent should be vacated because the District Court erred in determining that a witness’ implication that he mistakenly believed that the defendant was his investment agent in residential mortgage-backed securities (RMBS) and owed him a fiduciary obligation ran afoul of the precedent, the U.S. government argues in a Sept. 4 appellant brief filed in the Second Circuit (United States v. Ross Shapiro, et al., No. 18-2007, 2nd Cir.).
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September 14, 2018
Loss-Causation Test Properly Applied In Securities Suit, Lead Plaintiffs Argue
WASHINGTON, D.C. — Review of a Ninth Circuit U.S. Court of Appeals panel’s determination that a general proximate cause test is the proper test for determining loss causation in a securities class action lawsuit brought by shareholders against a solar energy company and certain of its senior executives is not warranted because there is no split among the circuits as to proper application of the test under the U.S. Supreme Court’s ruling in Dura Pharmaceuticals, Inc. v. Broudo, lead plaintiffs argue in a Sept. 5 respondent’s brief filed in the Supreme Court (First Solar Inc., et al. v. Mineworkers’ Pension Scheme, et al., No. 18-164, U.S. Sup.).
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September 14, 2018
Derivative Suit Parties Debate Need For High Court Review Of Due Process Ruling
WASINGTON, D.C. — Parties in a shareholder derivative lawsuit recently asked the U.S. Supreme Court to determine whether review is needed of a Delaware Supreme Court’s ruling dismissing the shareholders’ complaint as precluded by a ruling in a related action in Arkansas federal court comports with the due process clause of the U.S. Constitution (California State Teachers’ Retirement System, et al. v. Aida M. Alvarez, et al., No. 17-1695, U.S. Sup.).
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September 14, 2018
Tech Company, Others Sued By Investor Over Financial Reporting Issues
NEWARK, N.J. — A wireless networking technology provider and certain of its senior executives violated federal securities laws by misrepresenting the company’s financial reporting and internal controls in its financial reporting documents, a shareholder argues in a securities class action complaint filed Sept. 11 in New Jersey federal court (Stéphane Gouet v. USA Technologies Inc., et al., No. 18-13759, D. N.J.).