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Institutional Investor Class Action Recovery

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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.
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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. 
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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.
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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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Standing of Petrobras Opt-Out Plaintiffs Challenged

October 15, 2015 | Blog | By Terry McMahon

A recent motion to dismiss filed by the defendants in the In re Petrobras Securities Litigation, No. 14-cv-9662 (S.D.N.Y.) consolidated litigation challenges the standing of several institutional opt-out plaintiffs. 
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Section 18 of the Securities Exchange Act, while seldom used in the past, has been increasingly used by institutional investors in suits against banks and other entities.
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As we have mentioned previously, in the wake of Morrison v. National Australia Bank, securities plaintiffs are no longer able to assert claims under the U.S. securities laws to recover potential losses for transactions that occur on non-U.S. exchanges. 
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We previously reported on what we thought at the time were “unusual” arguments from Vivendi Universal, S.A. (“Vivendi”) in its summary judgment motion in opposition to the recovery of certain class-action members in the long-running In re Vivendi Universal, S.A. Securities Litigation, 02 Civ. 5571 (SAS) (S.D.N.Y.).
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The United States Court of Appeals for the First Circuit recently issued a summary dismissal denying a number of objections to the Settlement Agreement reached in Hill v. State Street Corporation.
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The U.S. Court of Appeals for the D.C. Circuit recently reversed the dismissal of a securities fraud class action against Harman International Industries Inc., holding that the “safe harbor” for forward looking statements did not apply to the statements at issue.  In re Harman Int’l Inds., Inc. Sec. Litig., -- F.3d --, No. 14-7017 (D.C.Cir. June 23, 2015).
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Australia - A New Frontier for Plaintiffs?

July 23, 2015 | Blog | By Joel Rothman

With the increasing barriers to successfully prosecuting a securities fraud case in the United States, including the jurisdictional limitations caused by the Morrison decision, institutional investors are sometimes now looking to other jurisdictions to sometime recover their losses. 
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The Southern District of Ohio recently reached an interesting decision that may be relevant to institutional investors in Pharos Capital Partners, L.P. v. Touche, L.L.P. (In re Nat’l Century Fin. Enters.), 905 F. Supp. 2d 814 (S.D. Ohio 2012).
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The United States Court of Federal Claims recently issued an Order in Starr International Company, Inc. v. United States, No. 11-779C, regarding the consequences of an intentional waiver of the attorney-client privilege by the United States Government.
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We posted on June 11 about some novel arguments used by Vivendi Universal, S.A. (“Vivendi”) as part of its defense against Southeastern Asset Management, Inc. (“Southeastern”), a class member in In re Vivendi Universal, S.A. Securities Litigation, 02 Civ. 5571 (SAS) (S.D.N.Y.).
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The long-running In re Vivendi Universal, S.A. Securities Litigation, 02 Civ. 5571 (SAS) (S.D.N.Y.), recently took an interesting turn as defendant Vivendi Universal, S.A. has deployed some unusual arguments in opposing the recovery of certain class-action members.
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A Magistrate Judge for the United States District Court for the District of Massachusetts recently issued a Report and Recommendation ("R&R") on the Lead Plaintiffs’ Motion for Final Approval of Class Action Settlement and Plan of Allocation in Hill v. State Street Corporation.
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On March 19, 2015, in what can be characterized as terse and sternly worded Memorandum Order (the “Order”), Judge Swain of the Southern District denied a Motion to Sever Individual Claims (the “Motion to Sever”) filed by three funds managed by D. E. Shaw & Co (the “D. E. Shaw Funds”). 
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In the context of our representation of institutional investors, our experience reveals that they have been confronting an increasingly difficult process in recovering their losses from alleged violations of securities laws. 
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On June 25, 2013, Delaware Chancellor Strine issued a fulsome opinion upholding the power of Delaware boards to amend corporate bylaws to include binding forum selection provisions.
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A recent federal appeals court decision addressing pleading standards for shareholder suits under Section 11 of the Securities Act of 1933, as amended, highlights the potential dangers of giving broad assurances of legal compliance in registration statements.
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