The U.S. Supreme Court is set to hear Goldman Sachs v. Arkansas next month (oral argument is scheduled for March 29). The questions presented in the case are:
(1) Whether a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson, 485 U.S. 224 (1988), by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality.
(2) Whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.
via 10b-5 Daily
Since the Court’s decision in ATP Tour, a number of commentators have assumed that it applies equally to for-profit, stock corporations.76 The Delaware Supreme Court did not say that in ATP Tour, so this remains an open question. …
Several companies have adopted one-way fee-shifting bylaws in the wake of ATP Tour despite the current uncertainty surrounding their validity. …
Another category of bylaw generating discussion, but not yet litigation in Delaware, is a mandatory arbitration bylaw covering intra-corporate disputes that waives a shareholder’s right to a class action. Some commentators have concluded that a board has the unilateral power to do this after the Boilermakers decision. However, in Boilermakers, then-Chancellor Strine expressly noted that the bylaw at issue did not regulate whether the stockholder may file suit.
via Delaware Litigation Blog
via Professor Bainbridge