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Revisiting Regulation M, Rule 105: Short Selling Initial and Secondary Offerings

Securities and Exchange Commission 17 CFR Part 242. Release No. 34-56206. Short Selling in Connection with a Public Offering.

Current economic conditions lend itself to increased short selling and, consequently, shorting has come under increased scrutiny by the SEC. Rule 105 of Regulation M prohibits purchasing securities as part of an “offering” if that security was also shorted within the five days immediately preceding the “pricing” (or within the period between the registration statement and the pricing, whichever is shorter).

Put another way, two actions have to occur to trigger a violation of Rule 105:

1)Short sale of a stock within the 5 days before it is priced (the “restricted period”) for an initial or secondary offering.

2)Purchase of that stock from an underwriter or broker or dealer participating in the offering.

Before Rule 105 was amended on October 9, 2007, the rule prohibited “covering” a short sale with a stock received as part of an offering, if the short sale took place within the 5 days before pricing. The amended rule replaced the word “cover” with “purchase.” Thus, under the current rule, a mere purchase made as part of an offering triggers a violation – you do not have to complete the short, or cover, to be in violation.

The three exceptions to Rule 105 are the “bona fide purchase exception,” the “separate accounts exception,” and the “investment company" exception. SIFMA provides an explanation of each on its website here.

According to the SEC, the goal of Rule 105 is to maintain the integrity of the offering price by ensuring its is based on market forces (supply and demand) and not “artificial forces" (market manipulations). In the SEC's view, pre-pricing short sales that are covered with offering shares artificially distort the market price. See entire rule, here.


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FINRA Fines Brokerage Firm For Reverse Churning

FINRA fined Robert W. Baird & Co. $500,000 for supervisory violations relating to its fee-based brokerage accounts. FINRA also ordered Baird to return $434,510 in fees to 154 customers. FINRA found that customers were charged fees in accounts that were not generating any activity, otherwise known as “reverse churning.”

According to FINRA Baird failed to adequately review or supervise its fee accounts and allowed numerous customers to remain in the program despite conducting no trades for at least eight consecutive quarters. These accounts paid over $269,000 in fees during the inactive quarters.

According to Andrew Stoltmann at Investmentfraud.PRO, this type of fee based account has become more prevalent in the past 7 years and Baird is only one firm out of many who engaged in so-called reverse churning. Recent actions involving firms such as AXA Advisors, Morgan Stanley, SunTrust Investment and Wachovia Securities ranged from $700,000 to $6.1 million.

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SEC Approves New FINRA Rule Requiring Arbitrators to Provide Explanation

Under the new rule, parties to an arbitration may require an arbitrator to provide an explanation of decision if the request is made jointly (by both parties) 20 days prior to the first scheduled hearing date. An arbitrator must provide a fact-based award stating the general reason(s) for the arbitrator's decision. However, the rule does not require the arbitrator to include legal authorities and/or damage calculations.

The chairperson required to write the explained decision will receive an additional honorarium of $400 and will allocate the cost to one party or between/among all parties. The 20 day deadline coincides with the time that parties must exchange documents and identify witnesses they intend to present at the hearing. In FINRA's view, this establishes a clear deadline, gives the parties sufficient time to request an explained decision, and provides notice to the arbitrators that an explained decision will be required before the hearing begins.

The new rule is likely an attempt by FINRA to appease a common perception among customers that the arbitration process favors the industry. Although FINRA has conducted studies and published results that tend to discredit the validity of industry favoritism, FINRA maintains that the mere perception of inequity is a concern that they are taking steps to eradicate.


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Securities Litigators Suggest It Pays To Fight Proceedings Brought By SEC/FINRA

Two broker-dealer side securities litigators from Sutherland Asbill & Brennan LLP conducted a study that concluded broker-dealers can benefit from fighting proceedings brought by the SEC and FINRA. The study says that firms who fought proceedings brought by the SEC won a dismissal 19% of the time and FINRA complaints that were fought were dismissed 15% of the time. With regard to fines, respondents to SEC charges convinced the judge to lower the fines 83% of the time and FINRA respondents succeeded in reducing fines roughly 50% of the time.

Another interesting but not surprising statistic published by the study is that respondents who hired counsel were overwhelmingly more successful than those that did not. SEC respondents represented by counsel succeeded in getting approximately 22% of charges dismissed, and FINRA respondents with counsel succeeded in getting approximately 19% of charges dismissed. SEC and FINRA respondents without counsel went 0-for-16 from January 2006 through December 2007.


Clearly, the terrible rate of success for pro-se respondents is a testament to the unfortunate pay-to-play factor in our justice system that favors those with resources to hire a lawyer. However, another possible factor not discussed in the study is that a respondent who believes he or she is guilty or liable, may be less likely to fight or spend money on counsel. If true, this factor would slightly skew the pool of pro-se respondents towards a lower “success” rate.

Read the study results here.



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Second Circuit Rules that Class Action Waiver Provision Violates the Federal Arbitrations Act

In In re: American Express Merchants' Litigation, 06-1871-cv, decided on January 30, 2009, the Second Circuit ruled for the first time that the class action waiver provision within a contract between American Express Co. and merchants is unenforceable under the Federal Arbitration Act. The Court held that to enforce this agreement would "grant Amex de facto immunity from antitrust liability by removing the plaintiffs’ only reasonably feasible means of recovery."

The Court did not go so far as to rule that class action waiver provisions are either void or enforceable per se, focusing solely on the provision contained in the specific contract being argued before them.

The Court also held that the authority to determine the enforceability of a class action waiver is a matter for the courts, not the arbitrator.

Plaintiffs - two groups of business operators who have contracts with the company and a trade association that represents independently owned supermarkets - filed suit against American Express, claiming that they were forced to agree to accept all American Express credit and debit cards as a cost of doing business with the company. The agreement prevents the filing of a class action lawsuit. The complaint alleged an illegal 'tying arrangement' in violation of §1 of the Sherman Act.

The District Court had granted American Express’s motion to compel arbitration. The Second Circuit held that "the enforcement of the Card Acceptance Agreement to cover their claims against Amex under federal antitrust statutes would be incompatible with the federal substantive law of arbitration."

The Court recognized the general principle that "the class action device is the only economically rational alternative when a large group of individuals or entities has suffered an alleged wrong, but the damages due to any single individual or entity are too small to justify bringing an individual action." Further, the "record abundantly supports the plaintiffs' argument that they would incur prohibitive costs if compelled to arbitrate under the class action waiver."

"The Card Acceptance Agreement therefore entails more than speculative risk that enforcement of the ban will deprive them of substantive rights under the federal antitrust statutes."

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Third Circuit Decision on the Statute of Limitations

In Alaska Electrical Pension Fund v. Pharmacia Corporation, Case Nos. 07-4500 & 07-4564, 2009WL213095 (3d Cir., Jan. 30, 2009), the court vacated an order from the district court granting summary judgment for defendants based the statute of limitations in a securities fraud class action. The application of the statute of limitations here was keyed to the question of ‘inquiry notice’, the point at which a reasonable investor has a duty to inquire.

Based on doctored versions of a scientific study, Celebrex - an anti-inflammatory drug distributed by the defendants - was claimed to cause fewer gastrointestinal side effects than its competitors. This claim was questioned by the FDA. Months later, following a series of positive statements about Celebrex, a major national paper reported that defendants withheld the full scientific study.

Key to the issue of statute of limitations is when an investor is placed on inquiry notice. A court will examine when the plaintiffs (“reasonable investors of ordinary intelligence”), through reasonable diligence, should have sufficient information of possible wrongdoing by defendants. Inquiry notice functions to deter punitive plaintiffs from sitting on their hands, and is triggered when plaintiffs should have discovered the general fraudulent scheme.

Reasonable investors, following reasonable diligence, are “presumed to read prospectuses, quarterly reports, and other information relating to their investments.” Courts also look to see if investors ignored ‘storm warnings’ (i.e. suspicions of corporate mischief). However, an ordinary investor need not be a scientific expert, with no requirement that an investor shift through lengthy collections of scientific data to determine what happened.

In the present case, the district court held the plaintiffs were under inquiry notice at the time of the initial FDA examination of Celebrex and therefore granted summary judgment to defendants. The Third Circuit disagreed. Merely relying on a good faith scientific disagreement between the company and the FDA was not sufficient to trigger inquiry notice since there was no indication of wrongful conduct or scienter necessary to maintain a securities fraud claim. Inquiry notice occurred months later following the disclosure of the full medical report on Celebrex.

Further, in attempting to calm investors, defendants issued statements to reassure the market following the FDA accusation. This had the effect of dissipating any ‘storm warnings’ and prevented plaintiffs from being put on inquiry notice.


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Interim CEO Of FINRA Testifies Before US House Of Rep Re Madoff

Although Luparello's testimony was comprehensive, the overarching theme was that disparate treatment by fractured regulatory authorities fosters failed oversight. His testimony emphasized the need for "a consistent level of protection no matter which financial professionals or products [investors] choose." See his entire testimony here.

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SEC Approved Another FINRA Proposal

The SEC approved FINRA's proposal to amend the amount in controversy that may be heard by a single arbitrator to 100k.

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Securities Litigators in High Demand

Experienced securities litigation practitioners have been in high demand due to many factors, including the Madoff scandal, poor economy, and changing regulatory environment. According to the Legal Intelligencer (password required), this fact has lead to prominent securities litigators trading their smaller, regional firms to firms with a national or international arena.

The article cites the recent moves of Alexander Bono (previously of Schnader Harrison Segal & Lewis, now Duane Morris), Tim Hoeffner (formerly of Saul Ewing, now DLA Piper), and M. Norman Goldberger (formerly of Hangley Aronchick Segal & Pudlin, now Ballard Spahr Andrews & Ingersoll) (seen here). Bono cites the larger capacity of Duane Morris over his previous firm as a deciding factor in his departure. Bono points to non-litigation support that arise out of securities litigation cases that a major firm can supply, including Sarbanes-Oxley concerns, corporate governance matters, filing regulations and other non-litigation securities assistance.

He also feels that it will become increasingly difficult for smaller firms to manage the work coming from companies as litigation looms. Ralph Wellington, chairman of Schnader Harrison disagrees, stating that clients care mostly about the reputation and strength of the representing firm, not the firm size.



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Fourth Circuit Applies Tellabs

In Cozzarelli v. Inspire Pharmaceuticals, Inc., 549 F.3d 618 (4th Cir. Dec. 12, 2008), the Fourth Circuit applied the strict pleading standards for scienter set forth by the PSLRA and interpreted by the Supreme Court in Tellabs, Inc. v. Makor Issues & Rights, Ltd., ---U.S. ----, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The Court affirmed the District Court’s dismissal, finding that plaintiffs failed to raise a strong inference of wrongful intent required to support their securities fraud claims.

Plaintiff class sued biopharmaceuticals company, Inspire, for violations of the federal securities laws, alleging defendants made false and misleading statements regarding clinical trials of a new drug, diquafasol, a treatment for dry eye disease. Plaintiffs alleged that defendants fraudulently misled investors as to the trial’s likelihood of success in meeting the FDA's standards for approval.


In it’s first application of Tellabs, the Fourth Circuit found that when faced with two competing inferences, based on the facts as a whole, it “must weigh those competing inferences and determine whether plaintiffs' inference of scienter is ‘cogent and at least as compelling’ as defendants' inference of a legitimate business judgment.” Where the inference that defendants acted with non-fraudulent intent is “more powerful and compelling” than the inference that defendants acted with an intent to deceive, there can be no strong inference of scienter and the case should be dismissed. Cozarrelli, 549 F.3d at 618.


Here, the Court considered analyst reports, incorporated in the complaint by reference, as a whole to determine that defendants conduct was intended merely to protect its competitive interests, not to mislead investors. At most, statements made by defendants supported an inference of imprecise or negligent use of language, not an inference of scienter.



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JP Morgan Off The Hook For Enron Related Class Action

Despite the Supreme Court's ruling in Tellabs, the Second Circuit continues to apply its two prong motive and opportunity or strong circumstantial evidence test. In ECA and Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., Case No. 0-1786-cv (2nd Cir. Jan. 21, 2009) the Second Circuit affirmed the District Court’s dismissal for failure to sufficiently plead scienter.

The case addressed the issue of whether the complaint adequately alleged (1) a false statement or omission of material fact, and (2) a strong inference of scienter.

A plaintiff must establish that the defendant made a materially false statement or omitted a material fact, with scienter. The complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(1), (2); Tellabs, 127 S. Ct. at 2508.

The Second Circuit's test required that the complaint allege facts that show either (1) that defendants had the motive and opportunity to commit fraud, or (2) strong circumstantial evidence of conscious misbehavior or recklessness.

The shareholders alleged that J.P. Morgan Chase ("JPMC") defrauded them by downplaying its Enron-related exposure, failing to disclose alleged violations of law in connection with a JPMC entity (Mahonia) and other transactions. More specifically, the shareholders alleged they were defrauded based on JPMC's provision of “disguised” loans to Enron. JPMC essentially created a special purpose entity called Mahonia that borrowed money from JPMC and used that money to buy gas from Enron; Mahonia would then satisfy its debt to JPMC by providing the gas to JPMC, which would resell the gas at a fixed future price back to Enron. In reality, neither the physical commodity nor title to it was ever intended to be transferred.

The court reasoned that the improper classification of the loans as trading assets was immaterial in this case because both quantitative and qualitative factors must be considered in determining materiality. Here, the quantitative factor strongly supported JPMC’s argument that the classification error, if it was one, was immaterial. ECA, Local 134 IBEW Joint Pension Trust of Chicago v. JP Morgan Chase Co., 2009 WL 129911, 11 (2nd Cir. 2009).

The district court said, “[c]hanging the accounting treatment of approximately 0.3% of JPM Chase’s total assets from trades to loans would not have been material to investors.” JP Morgan Chase I, 363 F.Supp.2d at 631.

Because Plaintiffs failed to adequately plead that JPMC made materially false statements or omitted material facts with scienter, the court held that Plaintiffs’ SAC could not survive JPMC’s Fed.R.Civ.P. 12(b)(6) motion to dismiss.




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S.D.N.Y. Granted Plaintiffs’ Request to Lift Discovery Stay in Waldman v. Wachovia Corp.

In Waldman v. Wachovia Corp., 2009 WL 86763 (S.D.N.Y. Jan. 12, 2009), the Court found that maintaining a discovery stay with regard to documents already produced to state and federal authorities would unduly prejudice plaintiffs because the documents could be determinative of plaintiffs’ decision whether to continue pursuing the case.

This case addressed the issue of when a discovery stay reaches the point of undue prejudice.

The PSLRA states that “in any private action arising under [federal securities law], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.” 15 U.S.C. § 78u-4(b)(3)(B).

The Court reasoned that a discovery stay “may be lifted only when the request is sufficiently particularized and when maintenance of the stay would either generate an impermissible risk of the destruction of evidence or create undue prejudice.” 2009 WL 86763, 1 (S.D.N.Y. 2009). A principal purpose of the PSLRA discovery stay, according to the court, is to eliminate the cost of discovery before the potential merit of a case is assessed at the motion to dismiss phase. In this case, there was a settlement reached between defendants and the SEC which afforded compensation to the plaintiff class. The documents at issue, according to plaintiffs, would affect their decision of whether or not to continue pursuing the case in light of the settlement. The Court balanced the burden to defendants against the potential prejudice to plaintiffs, and found that “the balance favors plaintiffs, based on the lack of any cost to defendants to produce those documents and plaintiffs’ unusual need for an early review of crucial records.” Id. at 2.

Thus, the court granted, in part, plaintiffs’ motion to lift the PSLRA discovery stay.

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Third Circuit: Each Element of Federal Rule 23 Must Be Met Before Certifying a Class

In In re Hydrogen Peroxide Antitrust Litigation, No. 07-1689 (3d Cir. Dec. 31, 2008), the Third Circuit vacated a district court’s decision to certify a class in an antitrust lawsuit, and held that the lower court left unanswered disputed elements of Federal Rule of Civil Procedure 23.

The Court stated that the requirements set out in Rule 23 are not mere pleading rules." Szabo, 249 F.3d at 675-77. The court may “delve beyond the pleadings to determine whether the requirements for class certification are satisfied.“ Newton, 259 F.3d at 167.

Plaintiffs moved to certify a class of purchasers of hydrogen peroxide and other chemicals, alleging that the defendant manufacturers had fixed prices in violation of the Sherman Act. The district court granted the motion and defendants appealed arguing that plaintiffs failed to satisfy Rule 23(b)(3)’s requirement that common questions of law or fact predominate.

The Third Circuit held that three key aspects are necessary for class certification. “First, the decision to certify a class calls for findings by the court, not merely a “threshold showing” by a party, that each requirement of Rule 23 is met. Factual determinations supporting Rule 23 findings must be made by a preponderance of the evidence. Second, the court must resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits-including disputes touching on elements of the cause of action. Third, the court’s obligation to consider all relevant evidence and arguments extends to expert testimony, whether offered by a party seeking class certification or by a party opposing it.”

The Third Circuit further explained that a contested requirement is not forfeited in favor of the party seeking certification merely because it is similar or even identical to one normally decided by a trier of fact. Although the district court's findings for the purpose of class certification are conclusive on that topic, they do not bind the fact-finder on the merits.

The Court also analyzed conflicting expert testimony and stated that “weighing conflicting expert testimony at the certification state is not only permissible; it may be integral to the rigorous analysis Rule 23 demands.”

The Court’s analysis relied on the 2003 amendments to Rule 23, which emphasize the need for a careful, fact-based approach, informed, if necessary, by discovery. See Fed.R.Civ.P. 23 advisory committee's note, 2003 Amendments (“[D]iscovery in aid of the certification decision often includes information required to identify the nature of the issues that actually will be presented at trial.”).

The Third Circuit’s holding in In re Hydrogen Peroxide clarified that in order to certify a class the district court must determine by a preponderance of evidence that all of Rule 23’s requirements are met.
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Applying Tellabs, the Ninth Circuit Gives Plaintiffs Two Ways to Prove Scienter

In the Ninth Cirucit, if you don't meet pleading standards under a segmented approach, maybe a "holistic" approach will work.

Rubke v. Capitol Bancorp LTD, 2009 WL 69278 (9th Cir. Jan. 13, 2009) and Zucco Partners, LLC v. Digimarc Corp., 2009 WL 57081 (9th Cir. Jan. 12, 2009) alter the approach to evaluating scienter allegations by first using a segmented analysis, and second using a holistic approach. It appears to give plaintiffs a second bite at the apple.

The complaint alleged that Capitol Bancorp, Ltd. and CEO Joseph Reid misled investors by incorporating two fairness opinions in a registration statement issued to minority shareholders. The plaintiffs also alleged that defendant’s registration statement omitted information related to a prior offer for the holding company’s shares, future income projections, likelihood of a premium on fair value of shares, and a strategy of board members to convince minority shareholders to sell their shares to Capitol.

The district court dismissed the complaint for failure to meet the pleading standards of the Private Securities Litigation Reform Act, and the Circuit court affirmed, stating:

“The First Amended Complaint has also failed to allege with particularity that Capitol made any of the statements or omissions “intentionally or with deliberate recklessness.” Daou, 411 F.3d at 1015. The complaint’s allegations about Pedisich’s telephone calls do not adequately plead that the defendants in this case had the requisite mental state. The complaint’s remaining allegations concerning Capitol’s mental state allege nothing but “motive and opportunity,” which is not enough to create a strong inference of scienter. Silicon Graphics, 183 F.3d at 974…These allegations are hardly indicative of scienter…Even considered holistically, under Tellabs, these motive allegations cannot support a strong inference of scienter.”
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Ninth Circuit Applies Dual Part Test for Pleading Scienter, Implies Tellabs Standard is Less Strict Than Previous Standard

The Ninth Circuit issued its first analysis of Tellabs in Zucco Partners, LLC v. Digimarc Corporations, 2009 WL 57081 (9th Cir. Jan. 12, 2009).

The case was dismissed based primarily on the confidential witnesses' lack of personal knowledge but the interesting part was that the Ninth Circuit seemed to imply that the new Tellabs standard is less strict than the Court's previous standard (or, at least confirmed that Tellabs didn't raise the standard).

They applied a dual part test for pleading scienter: first, a segmented evaluation of each allegation, then a "holistic" evaluation under Tellabs.

Examples of the Court's perspective on the new Tellabs standard compared to the Ninth Circuit's previous standard:

"Tellabs did not materially alter the particularity requirements for scienter claims established in the court's previous decisions, but instead only added an additional "holistic" component to those requirements."

and

"The plaintiffs in this case assume that compiling a large quantity of otherwise questionable allegations will create a strong inference of scienter through the complaint's emergent properties. Although Tellabs instructs us to view such compilations holistically, even such a comprehensive perspective of Zucco's complaint cannot transform a series of inadequate allegations into a viable inference of scienter."

In Zucco Partners, LLC v. Digimarc Corporations, 2009 WL 57081 (9th Cir. Jan. 12, 2009) the court affirmed the district court’s ruling and dismissed, with prejudice, plaintiffs’ complaint for failure to allege scienter with the requisite particularity under the PSLRA’s heightened pleading standard. The 9th Circuit held that the confidential witnesses’ testimony introduced to establish scienter was not described with sufficient particularity to establish personal knowledge.

Zucco addressed the impact that Tellabs had on the Ninth Circuit’s standard for the pleading a strong inference of scienter and the level of particularity that will suffice to establish confidential witness’ reliability and personal knowledge.

The Plaintiff alleged that defendants incorrectly capitalized expenses in order to manipulate the company’s bottom-line. The improper capitalization, among other questionable accounting practices, resulted in a restatement of the company’s financial statements. The district court dismissed the Second Amended Complaint with prejudice and the circuit court affirmed.

Interpreting Tellabs, the Court conducted a dual inquiry: first, determine whether any of the plaintiff’s allegations, standing alone, are sufficient to create a strong inference of scienter; and second, if no individual allegations are sufficient, conduct a “holistic” review of the same allegations to determine whether the insufficient allegations combine to create a strong inference of intentional conduct or deliberate recklessness.

The Second Amended Complaint (SAC) relied on several types of factual allegations to plead the requisite intentional or deliberately reckless conduct, including (1) statements of six confidential witnesses, (2) Digimarc’s April 5, 2005 restatement of earnings, (3) the resignations of Ranjit, two members of the accounting department, and the corporation’s auditing firm during the class period, (4) statements made in filing the corporation’s Sarbanes-Oxley certifications, (5) the compensation packages of the individual defendants, (6) the stock sales of the individual defendants occurring during the class period, and (7) a private placement by the corporation during the class period. We address each of these allegations in turn, and then, as Tellabs instructs, consider the allegations collectively to determine whether the complaint as a whole raises a strong inference of scienter.

Without “other factual information,” such as documentary evidence, the court’s analysis of the CW’s statements hinged on the particularity provided to support the probability that a person in the position of the CWs would possess the information alleged.

“We conclude that the SAC fails to allege with particularity facts supporting its assumptions that the confidential witnesses were in a position to be personally knowledgeable of the information.”

As a whole, the SAC’s plethora of confidential witness statements failed to create an “inference of scienter more cogent or compelling than an alternative innocent inference.”

“Although the allegations in this case are legion, even together they are not as cogent or compelling as a plausible alternative inference-namely, that although Digimarc was experiencing problems controlling and updating its accounting and inventory tracking practices, there was no specific intent to fabricate the accounting misstatements at issue here. Instead, the facts alleged by Zucco point towards the conclusion that Digimarc was simply overwhelmed with integrating a large new division into its existing business.”

The allegations of scienter in the SAC, though voluminous, were not pled with the particularity required to survive a Federal Rule of Civil Procedure 12(b)(6) dismissal under the standards enumerated in Federal Rule of Civil Procedure 9(b) and the PSLRA. Instead, the plaintiffs in the case assumed that compiling a large quantity of otherwise questionable allegations would create a strong inference of scienter through the complaint’s emergent properties. Although Tellabs instructed us to view such compilations holistically, even such a comprehensive perspective of Zucco’s complaint cannot transform a series of inadequate allegations into a viable inference of scienter. 2009 WL 57081 (9th Cir. Jan. 12, 2009)

Thus, the Court affirmed the district court’s dismissal of the Second Amended Complaint.
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Merger Related Class Action, Class Certified

The court in In re Cooper Companies Inc. Securities Litigation, 2009 WL 32568, 13 (C.D.Cal., Jan. 5, 2009) granted Plaintiffs' Motion for Class Certification according to Rules 23(a) and 23(b)(3).

In re Cooper addressed certification of a class alleging false statements regarding the company's overall business condition and the proper time for a court to address the common reliance element of fraud-on-the-market.

Federal Rule of Civil Procedure 23 sets forth two sets to maintain a class action. First, the proposed class must satisfy the four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. FED.R.CIV.P. 23(a).

Second, the party seeking certification must show that the action falls within one of the three subsections of Rule 23(b). In this case, Plaintiffs sought certification pursuant to 23(b)(3), which allows certification where “the court finds that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” FED.R.CIV.P. 23(b)(3).

The original Complaint alleged that defendants issued a series of false statements regarding Cooper’s business condition. Defendants failed to disclose that: (i) Cooper improperly accounted for assets acquired in the Ocular merger, which had the effect of lowering amortization expense; (ii) Cooper’s aggressive earnings guidance reflected the improper accounting for intangible assets and was inflated by the amount of the understated amortization expense; (iii) the merger results touted by defendants were unrealistic; (iv) Ocular channel stuffed its Biomedics products; (v) Cooper’s lack of a competitive product would prevent it from meeting its aggressive growth targets for 2005 and (vi) Cooper and Ocular in fact competed in the two-week lens market.

Analyzing the elements of 23(a), the Court reasoned that: (1) the class’ numerosity was readily apparent given there were thousands of possible members; (2) the major questions in the case-did Cooper misrepresent the condition of the company, and did Defendants know that their statements about the condition of the company were false and misleading-were common to the class members; (3) the class representatives, funds that manage their assets to provide for their workers’ retirements, suffered the same, or greater, losses as the other members of the class and received the same information that other shareholders received; and (4) since the interests of the class representatives were aligned with the rest of the class, and since the class representatives likely had the means and incentives to effectively prosecute the suit, there was little doubt that the class representatives w fairly and adequately represent the interests of the proposed class.

For the second part of the class certification test, 23(b), Defendants attacked the predominance of common reliance. The Cooper Plaintiffs plead the fraud-on-the-market theory by alleging that the Defendants made false overly optimistic financial forecasts and appraisals in analyst calls. These are the types of statements that reasonable investors rely upon when making an investment. It is this common reliance that Defendants argued did not predominate throughout the class.

For example, Defendants argued that officers of Ocular made disclosures and statements prior to the merger that nullified alleged misrepresentations made on a later date by Cooper officials in the merger announcement. The Court dismissed this argument stating: “whether subsequent statements cure any prior omissions or misrepresentations is a question of fact which cannot be appropriately resolved on” a motion for class certification. Unioil, 107 F.R.D. at 621. See also Basic, 408 U.S. at 249 n. 29. FN7

Defendants also argued that certain kinds of investors-short sellers, in-and-out traders, and index holders-are not entitled to the fraud-on-the-market presumption because they cannot show loss causation. Similarly, this argument is misplaced - short sellers may be included in a class at the certification stage. See In re Magma Design Automation Sec. Litig., No. C 05-2394 CRB (N.D.Cal.2007). If Defendants could show that certain proposed class members’ losses were not caused by misstatements, then they should do so at summary judgment or trial. See In re Micron Technologies Inc. Sec. Litig., 247 F . R.D. 627, 634 (D.Idaho)

Finally, Defendants argued that the Ocular shareholders who acquired their Cooper shares in the two companies’ merger should be precluded from membership in the class, or that the Court should deny class certification based upon these individuals’ inclusion. According to Defendants, those individuals allegedly released their claims against Cooper and its officers related to violation of federal securities laws. The question of that settlement’s impact was, again, not one to be determined on a motion for class certification, but on summary judgment or at trial.

Accordingly, the Court ordered certification of the proposed class pursuant to Rule 23(b)(3).
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Intent to Backdate, Causing Slightly Overstated Earnings, Does Not Infer Intent to Defraud

Rosenberg v. Gould, --- F.3d ----, 2009 WL 50721 (11th Cir. Jan 09, 2009).

The district court held, and the 11th Circuit affirmed, that the complaint failed to satisfy the heightened standard for pleading scienter.

This case addressed whether a complaint alleging that a CEO (and the company) who granted and received backdated options in 2000 and 2001, and overstated earnings between 2004 and 2006, satisfied the heightened standard for pleading scienter, under section 10(b), of the Securities Exchange Act, 15 U.S.C. § 78j(b).
The Private Securities Litigation Reform Act of 1995 imposed a heightened standard for pleading scienter. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 2504, 168 L.Ed.2d 179 (2007). A plaintiff must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). “An inference of scienter must be more than merely plausible or reasonable-it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, 127 S.Ct. at 2504-05.

The court reasoned that intent can not be inferred merely because backdating is inherently intentional. Further, any inference that the CEO knew that backdated options in 2000 - 2001 led to overstated earnings several years later was not as compelling as the competing inference that he was unaware that the options had affected financial statements several years later. In support of its conclusion, the court pointed out that the impact on the financial statements was only 0.5 percent of revenue in 2004 and 0.17 percent of revenue in 2005. “The de minimis change in the financial statements did not amount to a glaring “red flag” that would have put the CEO on notice that he was overstating earnings when he announced the quarterly results.” Rosenberg, 2009 WL 50721, 4 (11th Cir. Jan. 9, 2009). The complaint it rested “on speculation and conclusory allegations.” NDC Health, 466 F.3d at 1265, 1266 (quoting Hoffman v. Comshare, Inc. (In re Comshare Inc. Sec. Litig.), 183 F.3d 542, 533 (6th Cir.1999)).

The 11th Circuit affirmed the district court’s dismissal of the shareholders’ complaint with prejudice. ...continue

Sprint Customer? Read on.

A proposed settlement has been reached in the early termination fee class action against Sprint, Nextel and/or Sprint/Nextel. The use of a flat-rate early termination fee (ETFs, not to be confused with Exchange Traded Funds) allegedly violates the Federal Communications Act and consumer protection law of the United States and individual states. Though Sprint/Nextel has denied any liability or wrongdoing, it has agreed to settle the claims under the terms of the Settlement Agreement.

What you need to know:
1) Did you enter into a wireless contract with Sprint between July 1999 and December 2008?
2) During that time, did you cancel your account and were charged an ETF? If so, and you can provide proof, you can receive $90.
3) If you did not cancel due to the ETF, you can receive $35.

You can find all necessary information here. The claim form is easy to fill out and takes no more than 5 minutes. ...continue

The SEC Adopted FINRA’s Limitations on Motions to Dismiss, Expect More Securities Arbitrations

The SEC adopted FINRA’s recommendation to limit motions to dismiss before an investor presents his or her case. Under the new rule, if a party brings a dispositive motion before the claimant has presented, it can only be granted on three grounds: the parties have settled in writing, there is a factual impossibility, or a party doesn’t file a claim within six years of the events at issue.

The Wall Street Journal reported that FINRA proposed the new rule in response to repetitive filings of dispositive motions that raise the cost of arbitration for retail investors. In adopting FINRA’s rule, the SEC has undoubtedly reduced costly motion practice and paved the way for investors to have a hearing of their case on the merits. For more on the rule itself, click here and here.

According to solo practitioner, John Castro, Esq., “the economic downturn and recent corporate scandals, like Madoff, have already increased the amount of investor arbitration claims. It’s even apparent on the New York State Bar Association's listserv; attorneys are sending referrals and asking me advice more and more frequently. This new rule will only add to the number of securities cases brought before an abitrator.”

The SEC approved the rule on Dec. 31, 2008, but FINRA spokesman Brendan Intindola explained that FINRA will publish a regulatory notice within 60 days of the SEC's approval, and the rules rule’s effective date will be 30 days after publication of the notice. ...continue

SEC Sides With Executives Despite Institutional Investors' Efforts To Rein In Compensation

According to a recent Wall Street Journal article, unions and pension funds are attempting to harness executive compensation through shareholder proposals and resolutions. The funds argue that despite shareholders losing millions, executives incur little or no personal monetary loss and often maintain their high salaries, bonuses, and lucrative severance packages.

Charlie Tharp, executive vice president for policy at the Center on Executive Compensation, maintains that compensation decisions are best left to corporate directors: "It would be unwise to usurp the duty of the board to represent the interests of all shareholders rather than the interests expressed by one group of shareholders."

The corporations are resisting the recent push and have successfully persuaded the SEC (in all its infinite wisdom) to block shareholder voting on the proposals that would limit executive pay. To be sure, shareholders are anticipating more support from the SEC once the Obama administration takes the helm. Until then, it's business as usual:

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