The United States and Canada both provide an aggrieved investor with redress for securities violations. In the United States, an investor may attempt to recover money damages under section 10(b) of the Securities Exchange Act of 1934, the general antifraud provision of the federal securities laws. In Canada, until recently, an investor’s main recourse was tort law, principally common-law negligent misrepresentation and fraud causes of action. Statutory causes of action for securities misrepresentations have only recently been enacted and are still evolving.
You represent a defendant in a putative class action in federal court. The lead plaintiff’s potential damages are de minimis, although lead plaintiff’s counsel is seeking millions on behalf of the putative class. You believe that if you can defeat the lead plaintiff’s motion for class certification, the (soon-to-be former) lead plaintiff will lose settlement leverage and quickly settle its claim for a trivial amount. After all, you think, now that class certification has been denied, your client no longer has to worry about classwide damages, right? If only it were that easy.
'Halliburton II,' soon to be decided by the U.S. Supreme Court, has sparked speculation about the future of the "fraud on the market" presumption of reliance in private, civil federal securities fraud cases based on affirmative misrepresentations. Commentators have suggested that if the court dispatches that presumption, plaintiffs might fill the void by invoking the so-called Affiliated Ute presumption of reliance—a rebuttable presumption that arises in cases based on material omissions in breach of a duty to disclose.
NEW YORK CITY BAR ASSOCIATION COMMITTEE ON SECURITIES LITIGATION - The U.S. Supreme Court‟s November 15, 2013 decision granting certiorari in Halliburton Co. and David Lesar v. Erica P. John Fund has captured the imagination of the securities bar and economists alike. (contributing author)
The federal government has been heavily criticized for not pursuing legal claims against financial institutions and their senior executives in connection with the financial crisis.
Despite a recent Court of Appeals ruling, significant substantive and procedural protections embedded in New York and federal law will continue to pose formidable challenges to investors and other securities market participants seeking common law relief for securities-related wrongs.