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Institutional Investor Class Action Recovery

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The United States is a popular location for securities class actions, due in large part to its reputation as a generally plaintiff-friendly system. 
There have been several recent and interesting updates to the In re Petrobras Securities Litigation, 14-cv-9662 (S.D.N.Y.) that we have discussed several times on this blog.  First, the Second Circuit has decided to accept review of the class certification question. 

Dutch Foundation Dismissed for Inadequate Safeguarding of Members’ Interests

July 14, 2016 | Blog | By Kevin Mortimer, Joel Rothman

On June 29, 2016, the Dutch Court of East Brabant dismissed a foundation’s claims against Rabobank Group for alleged unlawful selling of interest rate swaps because it failed to meet the requirement of the Dutch Claim Code that a foundation sufficiently safeguard the interests of its members.
In January of 2016, this blog commented on the Supreme Court of Canada’s decision in the seminal case of Canadian Imperial Bank of Commerce v. Green. 
Ever since the Supreme Court issued its opinion in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), courts have been making their own interpretations of what Morrison means for whether certain transactions are “domestic” and thus amenable to class-action securities claims. 
As securities litigation becomes increasingly globalized, the Mintz Levin Institutional Investor Class Action Recovery practice is constantly monitoring and participating in jurisprudential developments in a number of countries, both alone and through collaboration with foreign counsel.
We speculated in September that a decision to grant summary judgment against a class member in the long-running In re Vivendi Universal, S.A. Securities Litigation, 02 Civ. 5571 (SAS) (S.D.N.Y.) “could have implications for class members, but more likely for opt-outs.”
The deadline for parties to object to the settlement in the In re Credit Default Swaps Antitrust Litigation, Master Docket No. 13-MD-2476 (DLC) in the Southern District of New York recently passed on February 29, 2016.

Dutch Foundations Negotiate €1.204 billion Settlement with Ageas, formerly Fortis.

March 22, 2016 | Blog | By Kevin Mortimer, Joel Rothman

Following up on our December 15 post on the debate over the best strategy to recover foreign securities losses, a collection of Dutch Foundations (known as Stichtings) negotiated a substantial collective settlement with Ageas SA/NV, the successor-in-interest to Fortis Holdings.
Under the Ontario Securities Act (“OSA”), a statutory right of action exists for secondary market misrepresentation for any person who acquires or disposes of an issuer’s securities within the relevant time period.
A December 22, 2015 decision of the U.S. District Court of the Southern District of Florida in In re Ocwen Financial Corporation Securities Litigation illustrates the impact that an investigation and order of the Securities Exchange Commission (“SEC”) may have on a plaintiff’s ability to allege actionable false statements by an issuer regarding its internal controls.
A January 4, 2016 opinion in the Southern District of Texas by Judge Keith Ellison (“Op.”) in the In re: BP p.l.c. Securities Litigation, MDL No. 4:10-md-2185, has taken up the issue of whether plaintiffs can properly assign their claims to entities created solely for the purpose of litigating those claims.
As a follow-up to our October 15 discussion about challenges to the standing of certain opt-out plaintiffs in the In re Petrobras Securities Litigation, No. 14-cv-9662 (S.D.N.Y.) consolidated litigation, Judge Rakoff has resolved those issues in two decisions.
A recent decision by the Supreme Court of Canada offers both clarity and further questions on the timing of secondary market misrepresentation claims brought under the Ontario Securities Act (the "Securities Act").
Recent doubts have been raised as to the effectiveness of Dutch Foundations, which have become an important vehicle in foreign recoveries. While Dutch Foundations have negotiated settlements in some situations, some foreign commentators have begun to question their utility.
Since its inception, the concept of class action litigation – in a securities context or otherwise – has been met with arguments for and against it. 

Limiting Securities Litigation Risks in EB-5 Offerings: What Regional Centers and Issuers Need to Know

November 29, 2015 | Advisory | By Douglas Hauer, Adam Sisitsky, Francis Earley

The flurry of federal suits filed by the U.S. Securities and Exchange Commission (SEC) in the past few months against several companies and individuals for alleged fraud and false statements in soliciting foreign investors under the EB-5 Immigrant Investor Program shows that the government is taking a tougher approach to enforcement in the EB-5 space.
The Columbia Law Review has recently published an article, Is the Price Right: An Empirical Study of Fee-Setting in Securities Class Action, 115 Colum. L. Rev. 1371 (Oct. 2015), by Professors Lynn A. Baker, Michael A. Perino, and Charles Silver, with the involvement of Cornerstone Research, a litigation consulting firm. 
Recently, in Lawrence E. Jaffe Pension Plan v. Household International, Inc., the United States District Court for the Northern District of Illinois granted the defendants’ Rule 39 motion for appellate costs and ordered the plaintiffs to pay a total of $13,281,282.
Recently, class plaintiffs moved for the preliminary approval of a $1.865 billion settlement of the Credit Default Swap Antitrust Litigation.

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