SEC Bats 0-for-2 on Insider Trading

A California federal jury sided against the U.S. Securities and Exchange Commission on Friday, June 6, finding the founder of storage device maker STEC Inc. not guilty on insider trading charges.  This is the second insider trading loss in a week for the SEC, following a May 30 defeat in which a New York federal jury rejected insider trading allegations against three defendants, including hedge fund manager Nelson Obus.

In STEC, the SEC alleged that founder Manouchehr Moshayedi made a secret deal with a customer to conceal a drop in demand in advance of a secondary offering.  According to the complaint, Moshayedi knew that one of STEC’s key customers, EMC Inc., would demand fewer of STEC’s most profitable products than analysts expected.  The SEC alleged that he then made a secret deal that allowed EMC to take a larger share of inventory in exchange for a steep, undisclosed discount.

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You Better Forum-Shop Around . . . While You Still Can

On January 31, 2014, Chevron Corporation moved to certify to the Delaware Supreme Court the question of whether exclusive forum bylaws are valid under Delaware law.  Chevron filed its motion before the Honorable Jon S. Tigar of the Northern District of California.  If Judge Tigar certifies the question, it seems likely that the Delaware Supreme Court will affirm a recent Delaware Court of Chancery decision finding such bylaws to be valid under statutory and contractual law, given that the author of that decision, then-Chancellor Leo E. Strine, is now Chief Justice of the Delaware Supreme Court.

In 2013, plaintiffs filed suit in both the Delaware Court of Chancery and the Northern District of California challenging Chevron’s board-adopted forum exclusivity bylaw.  The case in the Northern District was stayed pending the outcome of the Delaware case, since both involved questions of Delaware state law.  The Delaware plaintiffs argued that the forum exclusivity bylaw was statutorily invalid under Delaware General Corporation Law (DGCL), and contractually invalid because it was adopted unilaterally without shareholder consent.  In June 2013, the Delaware Court of Chancery – in a decision by then-Chancellor Strine – found that the bylaw was enforceable, and that the Delaware Court of Chancery should be the sole and exclusive forum for (1)any derivative action brought on behalf of the Corporation, (2) any action asserting a claim of breach of a fiduciary duty, (3) any action asserting a claim arising pursuant to any provision of the DGCL, or (4) any action asserting a claim governed by the internal affairs doctrine. Read More

Tracing Meets Twombly: Ninth Circuit Sets Section 11 Pleading Standards For Aftermarket Purchasers

In a precedent setting decision, the Ninth Circuit affirmed dismissal of a putative class action in In re Century Aluminum Co. Securities Litigation, significantly raising the pleading bar in Section 11 cases. Plaintiffs alleged that Century Aluminum and its underwriters, Credit Suisse and Morgan Stanley, issued false and misleading statements in connection with a secondary offering. The Ninth Circuit applied the Twombly/Iqbal “plausibility” standard, holding that those decisions no longer make it possible for plaintiffs to simply allege without plausible supporting facts that their shares can be “traced” back to a secondary offering. The court’s decision in Century Aluminum may mean that Ninth Circuit plaintiffs filing suit under Section 11 who rely on aftermarket purchases, and cannot otherwise plead plausible facts they purchased in the secondary offering itself, face a near impossible uphill battle at the pleading stage when alleging tracing.

Section 11 provides a remedy to shareholders who purchase securities under “a materially false or misleading registration statement.” When shares are issued under only one such registration statement, this tracing requirement is not a problem. However, when shares are issued under multiple registration statements, tracing back to the allegedly misleading registration statement can be extremely difficult. The court acknowledged that tracing to a secondary offering is “often impossible,” but noted that the tracing requirement “is the condition Congress has imposed for granting access to the ‘relaxed liability requirements’ that Section 11 affords.”

Century Aluminum issued 49 million shares in an Initial Public Offering that were already trading when plaintiffs purchased their shares. In a prospectus supplement on January 28, 2009, an additional 25 million shares entered the market. Plaintiffs alleged they had standing to pursue a Section 11 claim because they “purchased Century Aluminum Common Stock directly traceable to the Company’s Secondary Offering.” In support of their tracing theory, plaintiffs argued that their shares were purchased on dates that showed sharp spikes in trading activity, indicating the flood of new shares as a result of the allegedly misleading prospectus supplement. Read More

Tim Pawlenty To Champion Deregulation at Financial Services Roundtable

On September 20, 2012, the Financial Services Roundtable (FSR), a trade organization representing the 100 largest financial services companies in the country, announced that former Minnesota Governor Tim Pawlenty will become its new President and Chief Executive Officer on November 1. Pawlenty will succeed Steve Bartlett, who announced his retirement plans in March. Pawlenty spent 15 years as a labor lawyer before serving as a state representative and later Governor of Minnesota.

FSR actively lobbies for changes to the Dodd-Frank Act and its supporting regulations. Its goals include defeating Dodd-Frank’s price controls on debit card fees, the Volcker Rule, and whistleblower provisions. Dodd-Frank requires the drafting of over 300 new regulations that will apply to banks and other financial firms. FSR took the lead on past deregulation efforts, including some of the efforts to repeal the Glass-Steagall restrictions on affiliations between banks and insurance companies. FSR has also filed amici briefs in several important financial cases at both the appellate and Supreme Court level. Read More

9th Circuit Says Yes to Restatement, Yes to the SEC, and a Big No to Backdating Maxim CFO

On May 15, 2012, the Ninth Circuit Court of Appeals affirmed the decision of the district court finding in favor of the Securities Exchange Commission (“SEC”) on allegations that Carl Jasper, the former Chief Financial Officer of Maxim Integrated Products, Inc., violated various provisions of the securities laws in connection with the company’s stock options backdating scheme.  SEC v. Jasper, Case No. 10-17064 (9th Cir. May 15, 2012).  The court found that for ten consecutive quarters, Maxim granted backdated options with an exercise price equal to the lowest price of Maxim stock for each quarter.  Read More