Bill Lerach gave the best motion to dismiss oral argument I’ve ever seen.  Using a stock-price chart with key events and allegations plotted along the alleged class period, he told the complaint’s story with a wooden pointer and his superb narrative skill.  Far too often, plaintiffs’ and defense lawyers get bogged down in the nitty-gritty of the allegations and fail to analyze whether the case hangs together structurally.  And they often fail to understand the interrelatedness of all of the elements – for example, weak causation tends to show the challenged statements aren’t fal ..read more

I started the D&O Discourse blog in October 2012 to generate discussion among the repeat players in securities and corporate governance litigation:  insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel.  While I share opinions from a defense-counsel perspective, I call it like I see it.   Here are five of my favorite posts – well, there are actually more than five because two are a multi-part series (with links to the rest of the series): Good Communication is Key to Improving Securities Litigation Outcomes (2022) Putting “Litigation” Back in ..read more

The Reform Act was passed by the Contract-with-America Congress to address its perception that securities class actions were reflexive, lawyer-driven litigation that often asserted weak claims based on little more than a stock drop, and relied on post-litigation discovery, rather than pre-litigation investigation, to sort the validity of the claims.   The Reform Act’s centerpiece is its set of high hurdles plaintiffs must clear to avoid dismissal: heightened pleading standards for falsity and scienter and a safe harbor for forward-looking statements.  Together, these pleading st ..read more

Five years ago, we surveyed a decade’s worth of federal district court decisions on motions to dismiss securities claims brought against development-stage biotech companies to answer an important question: are these cases more likely to survive a motion to dismiss—and therefore riskier to insure against—than other securities class actions, as D&O insurers have traditionally assumed? The answer was a resounding no: our analysis showed that securities claims brought against small, clinical-stage biotech companies were actually more likely to be dismissed at an early stage than other types of ..read more

I am evangelical about the importance of defense counsel working collegially with D&O insurers and brokers – the repeat players in securities and governance litigation – in the defense of litigation against our common clients.  In the big picture, this type of collegiality is the key to putting “litigation” back in “securities litigation” and to improving the effectiveness and efficiency of securities litigation defense, through better case evaluation and strategic and economic planning.  But, of course, the big picture is made up of individual cases, and each individual case com ..read more

The most frequent question I’ve been asked about the SEC’s proposed SPAC rules concerns the provision that would make unavailable the Private Securities Litigation Reform Act’s safe harbor for forward-looking statements with respect to de-SPAC transactions: would this change increase the risk that SPACs and de-SPACs face in securities litigation? Not much. Public companies understandably believe that the Reform Act’s safe harbor protects them from liability for their guidance and projections if they simply follow the statute’s requirements. But, as a practical matter, the safe harbor is not so ..read more

This week, my team and I again had the honor of writing for Washington Legal Foundation’s Legal Backgrounders series. In this article, Zach Taylor, Gen York-Erwin, and I discussed the Second Circuit’s recent decision in Arkansas Pub. Emps. Ret. Sys. v. Bristol-Myers Squibb Co., 28 F.4th 343 (2d Cir. 2022). Here is a link to the full article: Three Key Takeaways from Second Circuit’s Latest Section 10(b) Securities Class-Action Decision After discussing the court’s important rulings on falsity and scienter, we identified three key takeaways: “Bristol-Myers provides several insights that are hel ..read more

In 2012, I started the D&O Discourse blog to have a discussion among the repeat players in securities and corporate governance litigation:  insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel.  I share opinions from the defense-counsel perspective, but I call it like I see it.  For example, in a post in anticipation of the Supreme Court’s decision in Halliburton II, I advocated for the usefulness of the fraud-on-the-market presumption of reliance at a time when fellow defense counsel sported pitchforks.  My palms were sweaty, literally, wh ..read more

Since 2014, I have had the privilege of working with D.C. public-interest law firm and policy center Washington Legal Foundation on several securities litigation amicus briefs, including in Omnicare, and numerous articles on key securities litigation issues. In our latest collaboration with WLF, my colleagues Zachary Taylor and Genevieve York-Erwin and I write about the Ninth Circuit’s recent decision on Section 11 standing in the Slack Technologies securities class action: Pirani v. Slack Technologies, Inc., et al.: Ninth Circuit Cuts Securities Plaintiffs Slack on Standing ..read more

It was a great honor to moderate a Professional Liability Underwriting Society D&O Symposium panel on the ability of Contingent Liability (CL) insurance to improve outcomes in securities class actions (SCA). Randy Hein, President of Berkley Transactional (Berkley Professional Liability), pioneer of CL for SCAs; Kara Altenbaumer-Price, executive risk broker at McGriff; Paul Bessette, co-chair of King & Spalding‘s securities litigation group; and Elizabeth Neumann, AXIS‘s head of professional liability claims, discussed how SCA outcomes are worsening for defendants and how CL for SCAs ca ..read more