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September 2012


From the editors of CCH Federal Securities Law Reporter, CCH Blue Sky Law Reporter and the securities publications of Aspen Publishers, this update describes important developments covered in these publications, as well as timely topics of interest generally to federal and state securities practitioners. This update includes a preview of IPO Vital Signs, an advanced IPO research analysis tool, for IPO professionals and pre-IPO companies. New this month is a preview of RBsource, an all-in-one online securities law resource, powered by the Securities Redbook. Finally, please see the “Hot Topic of the Month,” for research tips and references to CCH and Aspen source material on point.

 To view past issues of the Securities Update, please visit

 If you have questions or comments concerning the information provided below, please contact me at


Financial Reform Resources



CCH Federal Securities Law Reporter

CCH Federal Securities Law Reporter

SEC Adopts Disclosure Rules for Conflict Minerals and Resource Extraction. The SEC approved long-awaited new rules that will govern disclosure about an issuer’s use of conflict minerals that originate in the Democratic Republic of the Congo, and disclosure by resource extraction issuers about payments made to the United States or foreign governments. The rulemaking was called for by Dodd-Frank Act Sections 1502 and 1504. SEC Chairman Mary Schapiro explained in opening remarks that the conflict minerals rulemaking includes many changes in response to the comments that were received, including revised guidance for complying with the rules. The initial proposal sparked more than 400 distinct comment letters, and SEC officials have held approximately 140 meetings with external stakeholders. In addition, noted the SEC, the “complicated and technical nature” of the issues also contributed to delays.

The staff described the cost benefit analysis which it conducted and noted that the costs stem from a Congressional mandate. The conflict minerals provision was not intended to provide a direct benefit to issuers and their investors, but to society. The views on costs that were submitted by commenters varied widely, so the staff included a combination of the analyses that it received. The costs will be substantial and may range from $3 billion to $4 billion initially, with ongoing costs of over $200 million.

The final rule would apply to reporting companies that use tantalum, tin, gold or tungsten and the minerals are necessary to the functionality or production of a product manufactured or contracted to be manufactured by the company. A company would be contracting to manufacture a product if it has any influence over the product’s manufacture. A company that uses any of the designated minerals would be required to conduct a reasonable country of origin inquiry to determine whether any of its minerals originated in the covered countries or are from scrap or recycled sources. If a company knows that the minerals did not originate in the covered countries or are from scrap or recycled sources, it must disclose its determination, provide a brief description of its inquiry and report the results of the inquiry on a new Form SD. Companies that are required to file a conflict minerals report would have to exercise due diligence on the source and chain of custody of their conflict minerals. The due diligence measures must conform to a nationally or internationally recognized due diligence framework, such as the due diligence guidance approved by the Organisation for Economic Co-operation and Development (“OECD”). The first specialized disclosure report on Form SD will be filed on May 31, 2014 for the 2013 calendar year, and annually on May 31 for each subsequent calendar year. The requirements apply equally to domestic and foreign issuers. Release No. 34-67716 is reported at ¶80,136, and Release No. 34-67717 is reported at ¶80,137.

Also see the July 25, 2012 CCH Analysis by N. Peter Rasmussen, Conflicts Over “Conflict Minerals” The SEC, the GAO and the Chamber of Commerce

SEC Proposes to Permit General Solicitations and Advertising Pursuant to JOBS Act. The SEC proposed amendments to Rule 506 of Regulation D and Rule 144A under the Securities Act of 1933 to implement Section 201(a) of the Jumpstart Our Business Startups (JOBS) Act. The JOBS Act directed the Commission to amend Rule 506 to permit general solicitation or general advertising in offerings made under Rule 506, provided that all purchasers of the securities are accredited investors. The proposed amendment to Rule 506 would provide that the prohibition against general solicitation and general advertising contained in Rule 502(c) of Regulation D would not apply to offers and sales of securities made pursuant to Rule 506, provided that all purchasers of the securities are accredited investors. The proposed amendment to Rule 506 would also require that, in Rule 506 offerings that use general solicitation or general advertising, the issuer take reasonable steps to verify that purchasers of the securities are accredited investors. The proposed amendment to Rule 144A(d)(1) would provide that securities may be offered pursuant to Rule 144A to persons other than qualified institutional buyers, provided that the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are qualified institutional buyers. The Commission also proposed to revise Form D to add a separate check box for issuers to indicate whether they are using general solicitation or general advertising in a Rule 506 offering. Release No. 33-9354 will be reported at ¶80,139.

2nd Circuit Defines “Substantial Assistance” Standard. The 2nd Circuit discussed what the SEC must prove in order to establish aiding and abetting liability. In order for a defendant to be liable as an aider and abettor in a civil enforcement action, the SEC must prove: (1) the existence of a securities law violation by the primary (as opposed to the aiding and abetting) party; (2) knowledge of this violation on the part of the aider and abettor; and (3) “substantial assistance” by the aider and abettor in the achievement of the primary violation. The 2nd Circuit rejected the lower court’s holding that an aider and abettor must have proximately caused the harm on which the primary violation was predicated, holding that “to satisfy the “substantial assistance” component of aiding and abetting, the SEC must show that the defendant in some sort associated himself with the venture, that he participated in it as in something that he wished to bring about, and that he sought by his action to make it succeed” (internal citations omitted).

The U.S. District Court for the District of Connecticut had previously dismissed SEC charges of aiding and abetting against Joseph F. Apuzzo, the chief financial officer of Terex Corp., a heavy equipment manufacturer. As alleged, Apuzzo aided and abetted the violation of securities laws by Michael J. Nolan, the former CFO of United Rentals, Inc. Nolan allegedly committed securities fraud by inflating profits and by prematurely recognizing revenue from the sale of used equipment.

According to the SEC, the sales were structured in a way that took advantage of favorable accounting treatment. However, URI had made a series of interlocking agreements, among which was an agreement to assume Terex’s remarketing obligations and to indemnify it for any losses. The SEC argued that under GAAP, URI could not record revenue during the period at issue because it was under a continuing obligation to Terex. The SEC alleged that Apuzzo substantially assisted Nolan and URI in concealing the nature of the agreements and in concealing the indemnification payments, which allegedly allowed URI to inflate its profits from the transactions.

While finding that Apuzzo plausibly knew of a primary violation of the securities laws, the trial court found that the SEC failed to allege substantial assistance by Apuzzo. The lower court noted that Nolan structured the transactions and brought the parties together. Apuzzo was also not responsible for URI’s accounting decisions. While there was a “but for” causal relationship between Apuzzo’s conduct and the primary violation, the court concluded that the allegations did not “support a conclusion that Apuzzo’s conduct proximately caused the primary violation.”

The 2nd Circuit, in an opinion authored by U.S. District Judge Jed Rakoff (sitting by designation), observed that Apuzzo’s proximate cause construction of substantial assistance “ignores the difference between an SEC enforcement action and a private suit for damages.” Private plaintiffs need to show proximate cause to connect their injuries to the defendant’s conduct. However, “in an enforcement action, civil or criminal, there is no requirement that the government prove injury, because the purpose of such actions is deterrence, not compensation.” Under Apuzzo’s definition, according to the 2nd Circuit, many aiders and abettors would escape liability since “the activities of an aider and abettor are rarely the direct cause of the injury brought about by the fraud, however much they may contribute to the success of the scheme.” Applying the standard defined by Judge Learned Hand in a 1938 case, U.S. v. Peoni, the appeals court concluded that “it is clear that the [c]omplaint plausibly alleges that Apuzzo provided substantial assistance to the primary violator in carrying out the fraud.” SEC v. Apuzzo (2ndCir) is reported at ¶96,962.

Investor’s Market Manipulation Claims Failed. A 2nd Circuit panel affirmed a district court’s dismissal of market manipulation claims brought against Merrill Lynch & Co. The action arose out of Merrill Lynch’s role as an underwriter of offerings of auction rate securities (“ARS”). The investor alleged that Merrill engaged in deceptive and manipulative activities in connection with ARS auctions to give an appearance of “ready and regular liquidity” in the market. Merrill allegedly manipulated the ARS market by placing support bids in the auctions for its own account in order to prevent auction failures, without fully disclosing this practice to investors. When Merrill discontinued its practice of placing support bids, the market for the affected ARS failed and never recovered. The investor asserted that it relied on the appearance of liquidity manufactured by Merrill’s actions when it made its investment decisions. The investor alleged further that it relied on ratings assigned to the ARS by two credit rating agencies that the agencies should have known were undeserved.

The panel found that the complaint failed to state a claim for violation of the federal securities laws because its generalized and conclusory allegations were not “well-pleaded.” The panel noted that it had recently rejected a substantially similar claim brought against Merrill and alleging market manipulation. In that case, the appellate court held that disclosures on Merrill’s website, made pursuant to a 2006 SEC order, contained sufficient information about Merrill’s ARS practices to preclude a market manipulation claim. The panel concluded that this case alleged no facts that would dictate a result contrary to the earlier case.

The investor argued that its allegations were distinct from those found insufficient in the earlier case, but the panel was not persuaded and held that the earlier case controlled the outcome here. The panel noted one difference, that the investors made one of its purchases one month prior to the website disclosure, but concluded nonetheless that this claim failed because the SEC order, which was issued prior to the sale, put the investor on notice that Merrill’s ARS auctions might be affected. The panel noted further that the investor held on to these ARS for a full year after the website disclosure was made. Next, the panel dismissed the state law claims against Merrill for failing to allege an injury occurring in California or that any of the relevant conduct happened there. The panel finally dismissed the negligent misrepresentation claims against the ratings agencies for failure to state a claim under New York law. The Anschutz Corporation v. Merrill Lynch & Co., Inc. (2ndCir) is reported at ¶96,974.

Price Recovery Did Not Negate Inference of Economic Loss. The fact that the price of a stock recovered soon after a drop did not defeat an inference of economic loss and loss causation at the pleading stage, a 2nd Circuit pane held. An investor in a petroleum company alleged that it misled investors about its earnings, oil reserves, and internal controls, and that these misrepresentations about its financial health and prospects artificially inflated the stock price. The truth was revealed through a series of corrective disclosures, and the stock price dropped in the trading days after each disclosure. The district court granted the company’s motion to dismiss for failure to plead economic loss. According to the court, the investor had foregone several opportunities to sell its shares at a profit after the final disclosure and had therefore not suffered a loss.

The company argued that the investor’s allegations were not sufficient to allege economic loss because the stock price rebounded on certain days after the final disclosure to a point that the lead plaintiff could have sold its holdings and avoided a loss. The panel disagreed, holding that the price recovery did not negate an inference of economic loss. The panel wrote that the district court’s limitation on damages, and the other district court decisions upon which it relied, was inconsistent with the traditional “out-of-pocket” measure of damages and the PSLRA “bounce back” provision which refines the traditional measure by capping recovery based on the mean price over the look-back period. The court declined to resolve why the stock price rebounded and assumed that the price rose for reasons unrelated to the initial drop.

The panel explained that “a share of stock that has regained its value after a period of decline is not functionally equivalent to an inflated share that has never lost value.” That is, “it is improper to offset gains that the plaintiff recovers after the fraud becomes known against losses caused by the revelation of the fraud if the stock recovers value for completely unrelated reasons.” As described by the 2nd Circuit, this analysis takes two snapshots of the plaintiff’s economic situation and equates them without taking into account anything that happened in between. This approach assumes that if there are any intervening losses, they can be offset by intervening gains. At this stage in the litigation, the panel was unable to determine whether the price rebounds represented the market’s reaction to the disclosure of the fraud or if they represented unrelated gains resulting from some other fact, condition, or event. The panel accordingly concluded that the recovery did not negate the inference that the investor suffered an economic loss and vacated the district court judgment and remanded the case for further proceedings. Acticon AG v. China North East Petroleum Holdings Limited, (2ndCir) is reported at ¶96,953.

Expert Failed to Show Loss Resulting from Florida Real Estate Crash. A district court grant of judgment as a matter of law in favor of a defendant company was affirmed by an 11th Circuit panel. An institutional investor brought this fraud action alleging that a bank holding company and its management had misrepresented the risk associated with commercial real estate loans held by a subsidiary. A jury returned a verdict partially in favor of the investor, and the company moved for judgment as a matter of law under FRCP 50. The district court found an inconsistency between two of the jury’s interrogatory answers and granted the motion on the basis of the remaining findings.

The appellate court found that the district court’s grant of the motion was in error. According to the panel, when considering a motion for judgment as a matter of law, the jury’s findings are irrelevant, and only the sufficiency of the evidence matters. Despite this, the panel concluded that the evidence was insufficient to support a finding of loss causation and affirmed the judgment. The court observed that the investor’s only evidence of loss causation and damages was an event study that attempted to isolate the amount of loss attributable to the alleged fraud, as opposed to other company- and industry-specific factors. The panel found that the district court was in error when it relied on the perceived inconsistency of two of the jury’s answers to interrogatories instead of considering whether the evidence was sufficient to support a verdict in favor of the investor.

The panel affirmed, however, because it found that the investor failed to introduce evidence sufficient to support a finding in its favor on the element of loss causation, and the jury thus lacked a sufficient evidentiary basis to conclude that the fraud was a substantial contributing factor in bringing about the class’s losses. According to the court, the investor’s expert testified that the entire decrease in the company’s stock price on a specific date was the result of the materialization of the risk that the subsidiary’s commercial real estate portfolio would deteriorate. The expert’s event study, however, failed to account for the effects of the collapse of the Florida real estate market in 2007. The court explained that the expert used the NASDAQ Bank Index as a means to separate the effect of company-specific factors from industry-wide trends, but this was inappropriate because Florida financial institutions make up only a small portion of the index. The subsidiary’s assets were concentrated in loans tied to Florida real estate, so the defendants were particularly vulnerable to any deterioration in the Florida real estate market. None of the evidence presented by the investor, the court concluded, excluded the possibility that the losses were the result of warned-of market forces that would have affected any bank with a significant credit portfolio in Florida commercial real estate. The court accordingly found that the company was entitled to judgment as a matter of law. Hubbard v. Bankatlantic Bancorp, Inc., (11thCir) is reported at ¶96,944.


CCH Blue Sky Law Reporter  

Washington Amends Accredited Investor Definition to Include Indebtedness on Investors’ Primary Residence. The definition of an accredited investor in Washington’s Regulation D exemption previously included, among the listed entities and persons, any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of the purchase exceeds $1 million, excluding the value of the primary residence of the natural person. Washington, through expedited rule-making by the Department of Financial Institutions, is the first state to replace “excluding the value of the primary residence of such natural person” with a more fleshed-out exception to the net worth calculation that factors in the amount of indebtedness on the primary residence up to its estimated fair market value, and sets forth the instances when indebtedness is and is not included as a liability in the net worth calculation. ¶61,752.

Montana: Tenant-in-Common Investments in Commercial Real Property Constituted Securities. In Redding v. Montana First Judicial Court, the Supreme Court of Montana held that tenant-in-common (TIC) investments in commercial real property constituted securities under the Montana Securities Act. Under the scheme at issue, the promoter had acquired title to real property and then sold the same property in shares to a number of investors. The promoter then required the investors to execute a lease agreement with the promoter in which the owners leased the property back to the promoter. As the “master tenant,” the promoter leased the properties to commercial tenants, acting as a property manager for the owners. The investors were promised a fixed rate of return, with annual increases, while the promoter kept any profits above that amount.

Although the defendants argued that the scheme did not involve an investment contract, and hence a security, because there was no common venture, the court reasoned that horizontal commonality existed because the resources of several investors were pooled to purchase a given property, while each investor each shared in the profits and losses according to their contribution to the investment. Moreover, both broad and narrow vertical commonality existed because the investors’ returns were dependent upon the expertise or efforts of the promoter, and there was a direct relation between the success or failure of the promoter and the success or failure of the investors. The investors’ expectations of profit were also dependent upon the entrepreneurial and managerial efforts of others, the state high court held, because the promoter’s managerial efforts were the undeniably significant ones that affected the success of failure of the enterprise. Finally, the defendants’ argument that the TICs were not securities at the time they were sold failed, based upon the investment documents provided to the plaintiff at the time of sale as well as the facts and circumstances surrounding the transactions. Accordingly, the TICs constituted securities under Montana law. Redding v. Montana First Judicial Court is reported at ¶74,988.


Aspen Federal Securities Publications  

Meetings of Stockholders by Jesse A. Finkelstein, R. Franklin Balotti, and Gregory P. Williams. The 2012 Supplement is now available online. Over the years, the SEC has increasingly used proxy rules as a mechanism for implementing policies and adjusting the rights of shareholders and management. This latest supplement to Meetings of Stockholders reflects statutory, case law, and other developments in the area of stockholders’ meetings and contains updates to many of the discussions regarding these meetings including: Selection of the Meeting and Record Dates and Notice of the Meeting has been updated to include discussion of Goggin v. Vermillion, Inc. and selection of the meeting date, and selection of the record date (see Chapter 2); Preparation of Proxy Materials has been revised and updated to include discussion of new developments relating to directors, executive officers and board committee information, say-on-pay, relationship with independent accountants, electronic disclosure of proxy materials, electronic shareholder forums, electronic voting and shareholder meetings, and practical considerations, among others (see Chapter 4); Institutional Investors and Shareholder Activism has been updated to include discussion of issues at the shareholder’s meeting and examination of likely future developments (see Chapter 5); and The Voting Process has been updated to include discussion of quorum (see Chapter 9).


IPO Vital Signs

IPO Vital Signs, an advanced IPO research analysis tool, assists IPO professionals and pre-IPO companies satisfy their most challenging research needs and answers hundreds of mission critical questions for all the players in the IPO process. IPO Vital Signs’ tabular data analyses focus on issues surrounding client advisement, deal negotiation, and prospectus disclosure.

IPO Week in Review, a weekly e-newsletter to keep professionals up to date with recent filing and going public activity, is an important element of the IPO Vital Signs system or is available by separate subscription. Coverage includes a monthly feature article on recent trends in going public in the U.S.

To see how an IPO Vital Sign works click on the Vital Sign title below:

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#172 - IPO Investment Banks
Review 2012 IPO investment bank activity by...

  • Investment Bank
  • IPOs as Lead Manager
    • Count
    • Percentage of Total
    • Aggregate Offering Amount
  • IPOs as Co-Manager
    • Count
    • Percentage of Total
    • Aggregate Offering Amount
  • IPOs as a Member of the Syndicate
    • Count
    • Percentage of Total
** equal credit joint underwriting mandates **


Tip! Click on For the period at the top of the table to open a calendar function and use the drop down boxes to select a date range, then click the [REFRESH] button to update the Vital Sign table of data. After the table is updated you can click [CLOSE] to close the calendar function and maximize the viewable area.

Click on blue numbers to drill down for more information. Click Column headings to re-sort the table’s data. 



A new research tool powered by the Securities Redbook (Securities Act Handbook), RBsource offers you securities laws, rules, regulations and forms together with related SEC guidance and interpretations. With RBsource, you will have SEC guidance related to a specific law, regulation or rule at your fingertips without the need of further searching or browsing. RBsource uniquely associates related content, going beyond the limits of standard searching making research more streamlined and productive. This intuitive research tool will drastically reduce your research time and provide the unparalleled confidence expected from the trusted Securities Act Handbook.

Legislative Update

President Obama, on August 10, 2012, signed into law the Iran Threat Reduction and Syria Human Rights Act of 2012 (Pub. L. No. 112-158). The Act imposes significant new sanctions on Iran’s government and weapons programs, and sanctions Syria for human rights abuses. The Act also added Exchange Act Section 13(r) to establish reporting and notice requirements for issuers who knowingly engage in specified activities with respect to Iran. The SEC must, upon receipt of notice from an issuer, promptly transmit the issuer’s report to the president and to the relevant Congressional committees. The SEC also must publicly post the information contained in the issuer’s disclosure and notice on the Commission’s Internet website.

On August 16, 2012, President Obama signed into law an act To Prevent Harm to the National Security or Endangering the Military Officers and Civilian Employees to Whom Internet Publication of Certain Information Applies, and for Other Purposes (Pub. L. No. 112-173). The Act amends the compliance requirements for certain persons under the Stop Trading on Congressional Knowledge (STOCK) Act of 2012 (Pub. L. No. 112-105). The STOCK Act, which became law April 4, 2012, revised Exchange Act Section 21A.

SEC Rulemaking Activity

  • 34-67716—Conflict Minerals (August 22, 2012).


The Commission adopted Exchange Act Rule 13p-1 and Form SD to implement Dodd Frank Act Section 1502. The Act added Exchange Act Section 13(p) to require issuer disclosure of due diligence efforts regarding the source, chain of custody, and manufactured products related to conflict minerals that originate in the Democratic Republic of the Congo.

  • 34-67717Disclosure of Payments by Resource Extraction Issuers (August 22, 2012).


The release implements Dodd-Frank Act Section 1504, which added Exchange Act Section 13(q), to require resource extraction issuers to annually disclose their payments to the federal government, or to a foreign government, to commercially develop oil, gas, or minerals. These issuers must comply with Exchange Act Rule 13q-1 and provide the specialized disclosure report on Form SD.

  • 34-67405A—Extension of Interim Final Temporary Rule on Retail Foreign Exchange Transactions; Correction (August 10, 2012).

The correcting release amends the SEC’s prior interim final temporary rule, which amended Exchange Act Rule 15b12-1T to extend its expiration date from July 16, 2012 to July 16, 2013. The correcting release added a comment due date and important addresses.

  • 33-9353 —Adoption of Updated EDGAR Filer Manual (August 29, 2012).


The Commission formally updated the EDGAR filer Manual to, among other things, accommodate the submission of confidential draft registration statements under JOBS Act Title I and other filings by foreign private issuers pursuant to policies of the Division of Corporation Finance.

The Road Ahead

Upcoming rulemaking activity will continue to reshape the securities regulation landscape. The item(s) below are a selection of expected near-term regulatory actions. The SEC’s schedule is subject to change at any time. RBsource includes daily updates to securities regulations affected by final Commission action.

JOBS Act Proposal.—The SEC voted 4-1 on August 29, 2012 to propose rules to implement Title II of the Jumpstart Our Business Startups (JOBS) Act (See Release No. 33-9354). The proposal would implement JOBS Act Title II by removing the ban on general advertising or solicitation for certain offerings under Securities Act Regulation D and Rule 144A, provided that buyers of these securities are either accredited investors or qualified institutional buyers. Significantly, the proposal would retain the existing Securities Act Rule 506 framework to allow non-general solicitations to up to 35 non-accredited investors in Regulation D offerings as an alternative to the general solicitation regime created by the JOBS Act.

RBsource will update the applicable securities regulations once the SEC has adopted final rules to implement JOBS Act Title II.


Hot Topic of the Month

This month’s hot topic is fraud on the market. Under this doctrine, proof of reliance on particular misrepresentations is not required in an action alleging a deception which inflates the price of stock traded on an efficient market. In the impersonal stock exchange context, causation is adequately established by proof of the purchase and the materiality of the misrepresentations. Materiality circumstantially establishes the reliance of some market traders and hence the inflation in the stock price. The theory in effect creates several different rebuttable presumptions. The first is that the misrepresentations, omissions or fraud affected the market price. There is also a presumption that plaintiff relied on the price of the stock as indicative of its value and that the reliance was reasonable.

The requirement that plaintiffs prove reliance directly has been eliminated in these cases because it imposes an unreasonable and irrelevant evidentiary burden. An investor who buys and sells stock at the price set by the market does so in reliance on the integrity of that price. Because most publicly available information is reflected in the market price, an investor’s reliance on any public material misrepresentations, therefore, may be presumed for purposes of an antifraud action. The presumption of reliance may be rebutted, however, by any showing that the purchase price was not affected by the misrepresentations or that the investor did not trade in reliance on the integrity of the market.

The fraud on the market presumption is available only with regard to securities that trade in an efficient market. The question of whether or not a market for a stock is efficient is a question of fact. Courts have often used the factors listed by the U.S. District Court for the District of New Jersey in a 1989 decision, Cammer v. Bloom. That decision set forth five characteristics of a company and its stock that indicate the efficiency of a particular market. The factors are 1) whether the stock trades at a high weekly volume, 2) whether securities analysts follow and report on the stock, 3) whether the stock has market makers and arbitrageurs, 4) whether the company is eligible to use short-form registration and 5) whether there are “empirical facts showing a cause and effect relationship between unexpected corporate events or financial releases and an immediate response in the stock price.”

In the class action context, the fraud on the market presumption allows the class to demonstrate predominance without the necessity of proving that each individual plaintiff relied on the defendant’s alleged misrepresentation. The 2nd Circuit recently reversed a decision by a lower court to deny certification of a class for settlement purposes. The district court held that the class could not be certified for settlement purposes because the “fraud on the market” presumption did not apply to the claims, and the district court found that individual questions of reliance would preclude a finding of Rule 23(b) predominance. According to the 2nd Circuit, the inability of a class to avail itself of the fraud on the market reliance presumption primarily threatens class certification by creating “intractable management problems” at trial. Because the settlement of the case eliminated the need for a trial, it was not necessary for the class to demonstrate that the fraud-on-the-market presumption applied to its claims in order to satisfy the predominance requirement.

We publish information in a wide range of resources (e.g., Federal Securities Law Reporter, SEC Today, Securities Regulation - Loss & Seligman, etc.), and document types (cases, laws, regulations, newsletter articles, treatise discussion). For example:

  • Federal Securities Law Reporter
  • Report letters (e.g., “Absence of “Fraud on the Market” Did Not Preclude Class Certification” (8-23-12)
  • In re American International Group, Inc. Securities Litigation (2ndCir), at ¶96,971
  • Cammer v. Bloom (DC NJ), at 1990 CCH Dec. ¶95,211
  • CCH Explanations (e.g., ¶22,773.040
  • SEC Today, “SEC Asks Supreme Court to Decide the Status of Rule 10b-5 Loss Causation at Class Certification Stage” (1-6-12)
  • Securities Regulation – Loss, Seligman & Paredes (e.g., Chapter 11.C.4)
  • Regulation of Securities: SEC Answer Book – Levy (e.g., Q17:23)
  • Jim Hamilton’s World of Securities Regulation (e.g., 6-6-11)