The Guessing Game

In the early days of the Private Securities Litigation Reform Act and its new heightened pleading standards, courts regularly dismissed complaints that engaged in "puzzle pleading" (i.e., failed to specify the exact corporate statements that were false and the basis for their alleged falsity). Although plaintiffs quickly learned to be more careful, puzzle pleadings are still sometimes filed and the consequences can be severe.

In In re 2007 Novastar Financial, Inc. Sec. Litig., 2009 WL 2747281 (8th Cir. Sept. 1, 2009), the court considered a complaint against a subprime lender that "over the course of thirty-six pages . . . reproduced, either in their entirety or lengthy excerpts from, nineteen communications-including press releases, SEC filings, and conference call transcripts-issued by Novastar and the individual defendants during the class period that were allegedly false or misleading." What the complaint did not do, however, is give "any indication as to what specific statements within these communications are alleged to be false or misleading."

Although the lead plaintiff identified some specific false statements in his appellate brief, the court found that this did not "excuse" the "failure to comply with the pleading requirements under the PSLRA." The court also agreed with the district court's decision to deny leave to amend, noting that the lead plaintiff "never submitted a proposed amended complaint to the district court, nor did he proffer the substance of such an amended complaint until he filed his appellate brief."

Holding: Dismissal affirmed.

Quote of Note: "[E]ven after the district court dismissed [the lead plaintiff's] complaint and denied his request to amend the complaint, [the lead plaintiff] failed to file a motion under Federal Rules of Civil Procedure 15(a)(2), 59(e), or 60(b), seeking leave to file an amended complaint. As we have noted before, 'the district court [i]s not required to engage in a guessing game' as a result of the plaintiff's failure to specify proposed new allegations."

Snowbird Jurisdiction

Time to catch up on a decision from a couple of weeks ago that might add some incentive for the Supreme Court to take up the issue of foreign-cubed cases. In In re CP Ships Ltd. Sec. Litig., 2009 WL 2462367 (11th Cir. Aug. 13, 2009), a class member objected to the proposed settlement because it covered certain foreign investors, some of whom might be prevented from participating in a related Canadian securities class action brought against the company. CP Ships is a Canadian company whose shares are traded on both the NYSE and Toronto Stock Exchange.

The court found, in contrast to the Second Circuit's decision in the National Australia Bank case, that the "conduct test" for subject matter jurisdiction was satisfied. Although the false financial statements were issued abroad as in the Second Circuit case, "not only did the manipulation and falsification of the numbers occur in Florida, the executives with responsibility for ensuring the accuracy of the accounting data operated from Florida."

Holding: District court properly exercised subject matter jurisdiction over the claims of foreign purchasers.

The Groves Of Academe

There is nothing unusual about a court reducing the requested attorneys' fees as part of its approval of a securities class action settlement. That said, it is rarely accompanied by the written fireworks found in the recent opinion in the UnitedHealth Group options backdating case.

The case settled last year for $895 million (later increased by payments from individual defendants to a combined class fund of $925.5 million). In In re UnitedHealth Group PSLRA Litig., 2009 WL 2482029 (D. Minn. Aug. 11, 2009), Judge James Rosenbaum granted final approval to the settlement, but reduced the requested attorneys' fees from $110 million (11.92% of common fund) to $64.785 million (7% of common fund).

The court was sharply critical of lead counsel's reliance on the fee agreement with its client, which (a) had been entered into after the denial of the motion to dismiss, (b) was not the product of competitive bidding, and (c) had an escalating schedule that increased the percentage paid in attorneys' fees as the recovery increased. The court found that it was not bound by the agreement and "any risk that declining percentages will force class action counsel to settle 'too early and too cheaply' is overstated."

As for the lodestar check, the court rejected lead counsel's calculation of its expended fees, finding that "the submissions reflect rates far beyond those charged in the Twin Cities market, as well as considerable time billed by staff which is properly counted as overhead." Based on the court's recalculation, the awarded fees resulted in a 6.5 multiplier. The court did graciously note in a footnote, however, that if lead plaintiff wished "to divide its aliquot portion of the recovery between itself and its lawyers as provided in their fee agreement, this Opinion should not be read to suggest any opposition."

Thanks to Securities Docket for the link to the opinion.

Quote of note: "[Lead counsel] supports its request with the expert report of Professor Charles Silver, who asks, 'Can judges do better than lead plaintiffs when it comes to setting fees?' He believes not, because '[j]udges have neither better information, better access to markets, nor better incentives.' His argument rests on Adam Smith's premise that the self-regulated market knows best, and 'prices are best set by buyers and sellers bargaining in a competitive environment.' Seldom have the groves of academe and the ivory towers sheltered within their leafy bowers seemed farther from reality. A lecture on the virtues of the unrestrained free market sounds a bit hollow in light of the parties', this Nation's, and indeed the world's, experiences with the beauties of self-regulated financial markets during a period remarkably coterminous with the existence of this case. The Court rejects the proffered expert's opinion."

Fatally Flawed

While it may be relatively easy to plead loss causation in the Fifth Circuit, things become a lot more difficult for plaintiffs when it comes time to offer proof. This week, in Fener v. Belo Corp., 2009 WL 2450674 (5th Cir. Aug. 12, 2009), the court considered a case where the corrective disclosure made by the company attributed a decline in newspaper circulation to three separate sources. Only one of the sources, however, was related to the alleged fraudulent conduct.

On appeal from the lower court's denial of class certification, the Fifth Circuit found that the plaintiff's expert report was inadequate. Notably, the plaintiff's expert failed to distinguish between the three different disclosures in conducting his event study, thereby making it impossible to conclude that the alleged fraud caused a significant amount of the post-disclosure stock price decline.

Holding: Denial of class certification affirmed.

Quote of note: "As the district court correctly held, [plaintiff's expert] testimony was fatally flawed; he wedded himself to the idea that the press release was only one piece of news and conducted his event study based on that belief. We reject any event study that shows only how a 'stock reacted to the entire bundle of negative information,' rather than examining the 'evidence linking the culpable disclosure to the stock-price movement.' Because [plaintiffs' expert] based his study on that incorrect assumption, it cannot be used to support a finding of loss causation."

Restoring Aiding And Abetting Liability

The big news item from last week was the introduction of congressional legislation that would create a private action for the aiding and abetting of securities violations. The bill (which is being sponsored by Senator Specter) effectively would overturn the Central Bank and Stoneridge decisions. Investors would have an enhanced ability to bring claims against "secondary" actors in the securities markets - e.g., lawyers and investment banks.

The key provision in the bill amends Section 20(e) of the Securities Exchange Act of 1934 to include the following: "For purposes of any private civil action implied under this title, any person that knowingly or recklessly provides substantial assistance to another person in violation of this title, or of any rule or regulation issued under this title, shall be deemed to be in violation of this title to the same extent as the person to whom such assistance is provided."

Senator Specter's remarks upon introducing the bill can be found here. The public commentary on the bill includes a sharply critical Wall Street Journal editorial and academic assessments from Bainbridge and Smith.