April 6, 2012

Appellate Roundup

(1) The Securities Litigation Uniform Standards Act ("SLUSA") precludes certain class actions based upon state law that allege a misrepresentation in connection with the purchase or sale of nationally traded securities. In determining what is meant by "in connection with," the Supreme Court has held that it is sufficient that the alleged misrepresentation "coincide" with a covered securities transaction. The circuit courts have had difficulty, however, in expanding upon this requirement to form a consistent standard (see, e.g., decisions from the Second Circuit, Sixth Circuit, and Seventh Circuit). In Roland v. Green, 2012 WL 898557 (5th Cir. March 19, 2012), the U.S. Court of Appeals for the Fifth Circuit waded into this jurisprudence in a set of cases arising from an alleged Ponzi scheme. After a lengthy analysis of the legal and policy considerations, the court held that the "best articulation of the 'coincide' requirement" is that the fraud allegations must be "more than tangentially related to (real or purported) transactions in covered securities." In the instant cases, the court found that the relationship between the alleged fraud, which centered around the sale of certificates of deposit, and any transactions in covered securities was too attenuated to trigger SLUSA preclusion.

(2) Under the federal securities laws, investors cannot bring "holders" claims alleging that deceit caused them to hold their shares, which they would have sold had they known the truth. These claims are permitted, however, under the laws of many states. In Anderson v. Aon Corp., 2012 WL 1034539 (7th Cir. March 29, 2012) (Easterbrook, J.), the plaintiff brought a holders claim under California law. The U.S. Court of Appeals for the Seventh Circuit found that it was impossible for a retail investor in a security traded on an efficient market to ever establish that the company's failure to disclose information led to any damages. Once the information was disclosed, "the price of [the company's] stock would have fallen before [the plaintiff] could have sold." As a result, the "fraud (if there was one) just delayed the inevitable and affected which investors bore the loss." Without being able to demonstrate that he could have shifted his loss to a different investor had the company disclosed the information earlier, the plaintiff could not establish causation.

Posted by Lyle Roberts at April 6, 2012 9:43 PM | TrackBack
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