Securities Litigation

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Justice Department Makes Concessions In Corporate Prosecution Tactics To Forestall Attorney-Client Privilege Legislation

Faced with continuing Congressional interest in legislation aimed at preventing federal prosecutors and other enforcement attorneys from seeking privileged information, the Justice Department has announced that it will again revise its policy regarding the investigation and prosecution of business organizations.  The DOJ's proposals will restrict the ability of federal prosecutors to seek privileged information from companies, and will have an immediate impact on the ways in which businesses cooperate with government investigations.  The current Principles of Federal Prosecution of Business Organizations, outlined in the "McNulty Memo,"  have been the focus of Congressional and public criticism, and Pennsylvania Senator Arlen Specter has spear-headed legislation ai

Client Alert | July 11, 2008

2008 Mid-Year FCPA Update

The frenetic pace of Foreign Corrupt Practices Act ("FCPA") enforcement set in 2007 has carried through the first half of 2008.  Mid-year prosecutions are up – substantially so – from last year's record-setting totals.  And corporate disclosures and media reports of ongoing investigations evidence that this trend of continually increasing enforcement is here to stay for the near future.  This client update provides an overview of the FCPA and other foreign bribery enforcement activities during the first half of 2008, a discussion of the trends we see from that activity, and practical guidance to help companies avoid or limit liability under these laws.  A collection of Gibson Dunn's publications on the FCPA, including prior enforcement updates and more in-

Client Alert | July 7, 2008

Recent Ninth Circuit Court Decision Reiterates DOJ and SEC Broad Freedom to Conduct Parallel Criminal and Civil Investigations

On April 4, 2008, the United States Court of Appeals for the Ninth Circuit reversed the much-discussed Oregon federal court decision, United States v. Stringer, which had dismissed a criminal indictment due to the government's violation of the defendant's due process rights resulting from "egregious" behavior in conducting a parallel civil-criminal investigation.

Client Alert | April 14, 2008

Subprime-Related Securities Litigation: Where Do We Go From Here?

A WHITE PAPER FROM THE SUBPRIME WORKING GROUP OF GIBSON, DUNN & CRUTCHER LLPNOTE:  This also appeared in the April 2008 issue [PDF] of Insights.I.          INTRODUCTIONIn the last six months, numerous originators, syndicators, insurers and rating agencies involved in the purchase and sale of subprime mortage-backed securities, collateralized mortgage obligations (“CMOs”) and collateralized debt obligations (“CDOs”) have announced significant write-downs or other adverse financial impacts stemming from the ever-widening “credit crunch.”  One published report states that as of early January 2008, over a hundred companies had announced writedowns totaling more than $150 billion, and eventually could approach $300 billion.[

Client Alert | April 1, 2008

Supreme Court Addresses First of Numerous Issues Arising in ERISA “Stock Drop” Litigation

The Supreme Court's decision last week in LaRue v. DeWolff, Boberg & Associates, No. 06-856, slip op. (U.S. 2008), addressed the first of several issues that have divided the courts in ERISA "stock drop" cases, which concern losses to company 401(k) plans resulting from downturns in the company's stock.The defendant employer in the case, DeWolff, maintained a 401(k) plan in which plaintiff LaRue had been a participant.

Client Alert | February 25, 2008

2008 Securities Litigation Reform Forecast: Cloudy, Chance of Rain

New York partners Jonathan C. Dickey and Aric Wu and associate Ross Wallin are authors of "2008 Securities Litigation Reform Forecast: Cloudy, Chance of Rain" [PDF] published in the February 2008 issues of Securities Litigation Report.

Client Alert | February 15, 2008

Supreme Court Reaffirms Narrow Scope of Primary Liability Under Section 10(b): Stoneridge Investment Partners v. Scientific Atlanta, Inc.: The Supreme Court Rejects “Scheme” Liability, Insights, Vol. 22, No. 1

New York partner Jonathan C. Dickey, Washington, D.C. partner Mark A. Perry, and Los Angeles partner Julian W. Poon are authors of "Stoneridge Investment Partners v. Scientific-Atlanta, Inc.: The Supreme Court Rejects 'Scheme' Liability" [PDF] published in the January 2008 issue of Insights.

Client Alert | February 10, 2008

Stoneridge and the Continued Reconceptualization of Implied Private Rights of Action

Washington, D.C. partner Mark Perry is the author of "Stoneridge and the Continued Reconceptualization of Implied Private Rights of Action" [PDF] published in the February 2008 issue of Wall Street Lawyer.

Client Alert | February 1, 2008

U.S. Supreme Court’s Decision Today Limits the Scope of Private Rights of Action Under the Federal Securities Laws

On January 15, 2008, the Supreme Court issued an important decision clarifying the contours of private actions under the key anti-fraud provision of the securities laws.

Client Alert | January 15, 2008

Litigation Against Accountants and Lawyers: The Year of Living Dangerously

Jonathan C. Dickey is the author of "Litigation Against Accountants and Lawyers: The Year of Living Dangerously" [PDF] prepared for the West LegalWorks 17th Annual Litigation and Resolution of Complex Class Actions Workshop, November 1-2, 2007.

Client Alert | November 1, 2007

Securities Litigation and Enforcement Institute 2007 – Current Trends in Federal Securities Litigation

Jonathan C. Dickey is the author of "Current Trends in Federal Securities Litigation" [PDF] prepared for the Practising Law Institute Securities Litigation and Enforcement Institute 2007, October 15, 2007.

Client Alert | October 15, 2007

The FCPA and Analogous Foreign Anti-Bribery Laws–Overview, Recent Developments, and Acquisition Due Diligence

Washington, D.C. partner John Sturc and associate John W.F. Chesley are the co-authors of "The FCPA and Analogous Foreign Anti-Bribery Laws--Overview, Recent Developments, and Acquisition Due Diligence" [link to PDF] published in the September 24, 2007 issue of Capital Markets Law Journal.

Client Alert | September 24, 2007

UK Financial Services Authority Ordered to Disclose Identity of Entities Investigated for, But Not Formally Charged with, Regulatory Breaches

In a previous client update ("UK Court of Appeal confirms that documents created by regulators are not always protected from production in court proceedings"), we discussed a recent Court of Appeal decision confirming the limitations on the statutory protections granted to documents created by the chief regulatory body in the UK, the Financial Services Authority (the FSA), in the course of its confidential investigations into regulated entities for suspected rule breaches.  In particular, the Court of Appeal confirmed that such documents are not always protected from production in subsequent court proceedings, even though this will enable claimants to obtain documents that already contain the benefit of a regulatory body's analysis of facts and to obtain advance indications

Client Alert | September 19, 2007

Private Civil Litigation: The Other Side of Stock Option Backdating

New York Partner Lee Dunst is the author of "Private Civil Litigation: The Other Side of Stock Option Backdating" [PDF], published in the September 3, 2007 issue of the BNA Securities Regulation and Law Report.

Client Alert | September 3, 2007

The FCPA Enforcement Explosion Continues: Nine New Enforcement Actions in 2007 and Approximately 100 Active Investigations

The Foreign Corrupt Practices Act (“FCPA”) is 30 years old this year, and the anniversary is being “celebrated” with an explosion of enforcement activity by both the Securities and Exchange Commission (“SEC”) and the Department of Justice (“DOJ”).

Client Alert | July 26, 2007

Postgraduate Course in Federal Securities Law – Current Trends in Federal Securities Litigation

Jonathan C. Dickey is the author of "Current Trends in Federal Securities Litigation" [PDF] prepared for the ALI-ABA Postgraduate Course in Federal Securities Law, June 28 - 29, 2007.

Client Alert | June 28, 2007

Supreme Court Decision in Rita v. United States Resolves Role for Presumption of Reasonableness in Federal Sentencings

On June 21, 2007, the Supreme Court issued an 8-1 decision in Rita v. United States, No. 06-5754, affirming the ability of appellate courts to use a presumption of reasonableness where the sentences they are reviewing were imposed within the applicable range under the Federal Sentencing Guidelines.

Client Alert | June 25, 2007

Supreme Court Establishes Rigorous Pleading Standard for Investor Suits

On June 21, 2007, the Supreme Court issued an 8-1 decision in Tellabs v. Makor Issues & Rights, No. 06-484, explaining the plaintiff’s burden under § 21D(b)(2) of the PSLRA (15 U.S.C.

Client Alert | June 22, 2007

Latest SEC Reminder About Managing Conflicts within Financial Institutions — Have You Tested Your Walls Lately?

The Securities and Exchange Commission recently provided an important reminder of the need for effective information barriers and procedures to address potential conflicts of interest, including misuse of confidential information, that may exist given the multiple hats increasingly worn by broker-dealers, investment advisers, hedge funds, private equity funds, and other financial intermediaries.

Client Alert | June 11, 2007

Liability Issues for Audit Firms – The Risk of Catastrophic Exposure Prompts Calls for Liability Reforms

Jonathan Dickey and Jeffrey Minnery are authors of "Liability Issues for Audit Firms - The Risk of Catastrophic Exposure Prompts Calls for Liability Reforms," published in the Securities Litigation Report, April 2007.

Client Alert | April 2, 2007

Fifth Circuit Narrows Scope of Liability Under Federal Securities Anti-Fraud Statute, and Rejects Class Certification in Enron Securities Litigation

In a decision having important implications both for the scope of liability under the securities laws and for class certification in general, on March 19, the Fifth Circuit ruled that a securities fraud action against certain financial institutions that participated in transactions with Enron Corporation could not proceed as a class action.

Client Alert | March 22, 2007

UK Court of Appeal Confirms That Documents Created by Regulators Are Not Always Protected from Production in Court Proceedings

Questions have arisen in England concerning the production of documents, created in the context of an investigation by the chief regulatory body in the UK, the Financial Services Authority (the FSA), in subsequent legal proceedings.

Client Alert | March 16, 2007

Insider Trading Prosecutions Return: What Public Companies Should Do Now

On successive days this month, the Securities and Exchange Commission and the Department of Justice announced major enforcement actions alleging insider trading in connection with merger and acquisition activity.

Client Alert | March 15, 2007

Trends in Claims Against Lawyers

Jonathan Dickey and Jeffrey Minnery are authors of "Trends in Claims Against Lawyers," [PDF] published in the Securities Litigation Report, February 2007.

Client Alert | February 1, 2007

Second Circuit Rejects Class Certification in IPO Securities Litigation, Imposing Strict New Standards on Plaintiffs Lawyers

On December 5, 2006, the Second Circuit Court of Appeals dealt a significant blow to the plaintiffs’ bar, issuing an opinion that answered the “surprisingly unsettled” question of what standards govern a district judge in deciding a motion for class certification under Rule 23 of the Federal Rules of Civil Procedure.

Client Alert | December 8, 2006

Delaware Supreme Court Rules on Directors’ Standard of Oversight

Decision has significant implications for option backdating litigationIn a significant decision issued on November 6, 2006, the Delaware Supreme Court ruled on the standard to be applied under Delaware law when assessing the personal liability of corporate directors for failing to adequately oversee the corporation.

Client Alert | November 8, 2006

For litigators, the cry is: ‘Play Ball!’

Washington, D.C. Partner Andrew S. Tulumello and Associate Travis D. Lenkner are authors of "For litigators, the cry is: ‘Play Ball!’" [PDF] published in the October 30, 2006 edition of The National Law Journal.

Client Alert | November 2, 2006

The Antidote To Prolix Securities Fraud Complaints: Federal Rule of Civil Procedure 8

Washington, D.C. partner Andrew S. Tulumello is the author of "The Antidote To Prolix Securities Fraud Complaints: Federal Rule of Civil Procedure 8" [PDF] published in the November 2006 issue of Thomson/West's The Wall Street Lawyer - Securities in the Electronic Age.

Client Alert | November 1, 2006

Briefing – The Stock Option Backdating “Witch Hunt” – What Do I Need to Worry About?

Over the last year or so there has been an increasing number of corporate investigations into alleged stock option backdating activities led primarily by the SEC, the DOJ and the FBI.

Client Alert | October 26, 2006

Litigation and the Director

Jon Dickey and Aric Wu are authors of "Litigation and the Director," published in the Securities Litigation Report, July/August 2006. Reprinted with permission, Securities Litigation Report, copyright 2006 West Legalworks.

Client Alert | August 30, 2006

Current Trends in Federal Securities Litigation

Jonathan C. Dickey, Daniel Floyd and Paul J. Collins are authors of "Current Trends in Federal Securities Litigation" prepared for the ALI-ABA Course of Study Postgraduate Course in Federal Securities Law: Current Developments, July 20-22, 2006.

Client Alert | July 20, 2006

Recent Court Decisions Suggest Greater Latitude for ERISA Fiduciaries to Retain Company Stock as Investment Option

Two recent court decisions make important contributions to the developing caselaw on the obligation that ERISA fiduciaries may have to remove company stock from employee benefits plans when the stock is declining in value. In Summers v. State Street Bank & Trust Co., Nos.

Client Alert | July 7, 2006

Former Senior Enforcement Official Discusses SEC Expectations, Enron, SRO Consolidations and the Pros and Cons of Cooperating with Regulators

Gibson Dunn partner Barry Goldsmith, the former Executive Vice President for Enforcement of NASD and Chief Litigation Counsel at the SEC, is interviewed in "Former Senior Enforcement Official Discusses SEC Expectations, Enron, SRO Consolidations and the Pros and Cons of Cooperating with Regulators," published in the June 2006 issue of Securities Litigation Report.

Client Alert | June 30, 2006

Federal Court of Appeals Vacates SEC’s Regulation of Hedge Funds

The Court's DecisionThe Federal Court of Appeals for the D.C. Circuit has vacated the SEC's rule regulating hedge funds under the Investment Advisers Act.

Client Alert | June 26, 2006

Audit Committee Liability: Recent Actions Against Audit Committee Members

Gibson Dunn partner Jon Dickey and associate Daniel Muino are authors of "Audit Committee Liability: Recent Actions Against Audit Committee Members," prepared for a July 19, 2006 PLI Audit Committee Workshop.    

Client Alert | May 31, 2006

“Principles-Based” Accounting Standards – An Accident Waiting to Happen?

Jonathan C. Dickey and Michael J. Scanlon are authors of "'Principles-Based' Accounting Standards - An Accident Waiting to Happen?" published by Insights in February 2006.Reprinted with permission, copyright 2006, Insights

Client Alert | February 28, 2006

Recent Decisions Concerning the Right of Advancement of Defense Costs

Jonathan C. Dickey is the author of "Recent Decisions Concerning the Right of Advancement of Defense Costs" published in Securities Litigation Report, February 2006.This article originally was printed in the February 2006 issue (vol.

Client Alert | February 28, 2006

Blue Ribbon Commission Issues Recommended Best Practices for Directors

On December 7, 2005, a blue ribbon commission of the National Association of Corporate Directors issued a report that discusses the current legal liability environment for directors and recommends best practices for directors to safeguard against personal liability.

Client Alert | December 20, 2005

Be Careful What You Ask For: Unintended Consequences and Unfinished Business Under the Class Action Fairness Act

Partner Jarrett Arp is the author of "Be Careful What You Ask For: Unintended Consequences and Unfinished Business Under the Class Action Fairness Act," published in the Fall 2005 issue of Antitrust magazine, a publication of the ABA Section of Antitrust Law.

Client Alert | December 19, 2005