Salzberg v. Sciabacucchi, 2020 Del. LEXIS 100 (Del. Mar. 18, 2020)

RLF writes:

In the highly anticipated decision of Salzberg v. Sciabacucchi, No. 346, 2019 (Del. Mar. 18, 2020), the Delaware Supreme Court, reversing the Delaware Court of Chancery’s decision, confirmed the facial validity of provisions in the certificates of incorporation of Blue Apron Holdings, Inc., Stitch Fix, Inc., and Roku, Inc. requiring all claims under the Securities Act of 1933 (the “’33 Act”) to be brought in federal courts (“Federal Forum Provisions”). Similar provisions have been adopted by dozens of Delaware corporations and are intended to address the inefficiencies of multi-jurisdictional ’33 Act litigation in light of the increasing number of ’33 Act claims filed in state, rather than federal, courts.

via Richards, Layton & Finger

See also Opinion

附属定款中の強制仲裁条項

 米国で 附属定款の中に強制的な仲裁条項を置くということについて、議論が活発になっています。

 この議論は、比較法の検討としても興味深いです。また、比較法の論点に加えて、会社法や金商法の強行法規性の問題として捉えれば、より本格的な論文のテーマにもなりうるように思います。

 また、この議論は、Sciabacucchi v. SalzbergCyan Inc. v. Beaver County Employees Retirement Fundの影響もあるようで、複眼的に捉えると米国の法制度の特徴が明らかになって面白いように思えます。

via SEC, Jay Clayton, Cooley, Alison Frankel, Bernstein Litowitz Berger & Grossmann LLP, Allen & Overy, Cooley

Supreme Court Nominee Has Taken Skeptical View of Private Securities Fraud Litigation, Agency Deference

On January 31, 2017, President Donald J. Trump announced his nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia nearly a year ago: Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit. Judge Gorsuch has a limited record in private securities litigation cases during his tenure on the Tenth Circuit, but his writing and litigation activity prior to joining the bench give some insight into his views on key issues affecting securities litigants.

Coffee教授による2012年の証券訴訟

Professor Coffee writes:

Given this decline in both filings and settlements, how will private enforcers survive? One answer is that they are moving into related fields. A few (most notably, Grant & Eisenhofer) are specializing in representing opt outs. Others are pursing LIBOR cases, which may not involve any securities law claims. Many smaller firms seem to be specializing in “M&A” class actions in state court.

Why then is the “M&A” field so overpopulated with 5.4 lawsuits for every deal in 2012? The answer probably lies in the fact that the smaller law firm does not need a large institutional client in order to become class counsel in M&A cases. Institutional lead plaintiffs are the ticket of admission for securities class actions in federal court, but not in state court.

If we look not to the aggregate amounts recovered, but to the median and average settlement size, we find that the median settlement in securities class actions rose from \$5.9 million in 2011 to \$10.2 million in 2012―a significant 70% increase.[ix] … From this perspective, the deterrent threat may be growing (but this ignores that the likelihood of a suit has declined, as the number of filings has fallen significantly).

The SEC has become significantly more active in three categories: (1) insider trading cases …; (2) Ponzi schemes …; and (3) financial services misrepresentations and misappropriations ….

via The CLS Blue Sky Blog