Justia Securities Law Opinion Summaries

by
The Second Circuit denied a petition for review, under the Administrative Procedure Act, of Regulation Best Interest, which creates new standards of conduct for broker-dealers providing investment services to retail customers. Petitioners claimed that Regulation Best Interest is unlawful under the 2010 Dodd Frank Wall Street Reform and Consumer Protection Act. The court held that Ford Financial Solutions has Article III standing to bring its petition for review. The court also held that the SEC lawfully promulgated Regulation Best Interest pursuant to Congress's permissive grant of rulemaking authority under Section 913(f) of the Dodd-Frank Act. Finally, the court held that Regulation Best Interest is not arbitrary and capricious, holding that the SEC's interpretation of the scope of the broker-dealer exemption was not so fundamental to Regulation Best Interest as to make the rule arbitrary and capricious, or otherwise not in accordance with law. Furthermore, the SEC gave adequate reasons for its decision to prioritize consumer choice and affordability over the possibility of reducing consumer confusion, and it supported its findings with substantial evidence. View "XY Planning Network, LLC v. Securities Exchange Commission" on Justia Law

by
Wanting to repurchase outstanding shares. AbbVie began its auction at $114. Shareholders offered to sell at or below $114. AbbVie selected the lowest price that would allow it to purchase $7.5 billion of shares. AbbVie hired Computershare to receive all offers. At the end of bidding, AbbVie announced the preliminary result: it would purchase 71.4 million shares for $105 per share. AbbVie’s stock, which had been trading at roughly $100, closed at $103. An hour later, AbbVie announced that it had received corrected numbers from Computershare. Instead of purchasing 71.4 million shares at $105 a share, it would purchase 72.8 million shares at $103 a share. AbbVie’s share price fell to $99 the next day. Walleye contends that AbbVie’s actions violated sections 10(b) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b) and 78n(e). The Seventh Circuit affirmed the dismissal of Walleye’s complaint. A plaintiff bringing section 10(b) claims must plead the fraud with particularity and allegations of scienter must be as compelling as any opposing inference. Walleye has not pleaded that AbbVie made any statement that is false or misleading, much less a statement with the required mental state. AbbVie accurately reported Computershare’s preliminary numbers and was not required to verify third-party data before reporting. The end of the tender offer placed Walleye outside the zone of interests protected by section 14. View "Walleye Trading LLC v. AbbVie Inc." on Justia Law

by
Petitioners solicited foreign nationals to invest in a cancer-treatment center. A Securities and Exchange Commission investigation revealed they misappropriated the funds. The SEC may seek “equitable relief” in civil proceedings, 15 U.S.C. 78u(d)(5). The SEC brought a civil action for disgorgement equal to the amount raised from investors. Petitioners argued that the remedy failed to account for their legitimate business expenses. The Ninth Circuit affirmed an order holding Petitioners jointly and severally liable for the full amount. The Supreme Court vacated A disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief authorized under section 78u(d)(5). Equity practice has long authorized courts to strip wrongdoers of their ill-gotten gains; to avoid transforming that remedy into a punitive sanction, courts restrict it to an individual wrongdoer’s net profits to be awarded for victims. These long-standing equitable principles were incorporated into section 78u(d)(5). If on remand the court orders the deposit of the profits with the Treasury, the court should evaluate whether that order would be for the benefit of investors, consistent with equitable principles. Imposing disgorgement liability on a wrongdoer for benefits that accrue to his affiliates through joint-and-several liability runs against the rule in favor of holding defendants individually liable but the common law permitted liability for partners engaged in concerted wrongdoing. On remand, the court may determine whether Petitioners can, consistent with equitable principles, be found liable for profits as partners in wrongdoing or whether individual liability is required. The court must deduct legitimate expenses before awarding disgorgement. View "Liu v. Securities and Exchange Commission" on Justia Law

by
Petitioners filed suit challenging the SEC's adoption of a Pilot Program, Rule 610T, which was designed to gather data so that the Commission might be able to determine in the future whether regulatory action was necessary. The DC Circuit granted the petitions for review, holding that the SEC acted without delegated authority from Congress when it adopted Rule 610T. The court explained that the Pilot Program emanates from an aimless "one-off" regulation, i.e., a rule that imposes significant, costly, and disparate regulatory requirements on affected parties merely to allow the Commission to collect data to determine whether there might be a problem worthy of regulation. In this case, the Commission acted solely to "shock the market" to collect data so that it might ponder the "fundamental disagreements" between parties affected by Commission rules and then consider whether to regulate in the future. The court held that this was an unprecedented action that clearly exceeded the SEC's authority under the Exchange Act. Accordingly, the court vacated the rule and remanded. View "New York Stock Exchange LLC v. Securities and Exchange Commission" on Justia Law

by
Ginnie Mae (GM), established by 12 U.S.C. 1717(a)(2)(A) to provide stability in the secondary residential mortgage market and promote access to mortgage credit, guarantees mortgage-backed securities (MBS). FMC, a private corporation, was an originator and servicer of government-guaranteed home mortgages and an issuer of MBS in GM’s program. GM learned of FMC actions that constituted the immediate default of the Guaranty Agreements. FMC undertook an investigation and provided the results to GM, while also complying with SEC requests. GM later terminated FMC from its program. The SEC initiated a civil enforcement action, which terminated in a consent agreement, without FMC admitting or denying the allegations but paying disgorgement and penalties. The Consent Agreement provided that it did not affect FMC’s right to take positions in proceedings in which the SEC is not a party but FMC agreed to not take any action or permit any public statement denying any allegation in the SEC complaint FMC later sued, alleging that GM had breached Guaranty Agreements when it terminated FMC from its program and denied violating those Agreements. The Federal Circuit affirmed the Claims Court’s dismissal. FMC’s breach of contract claims are precluded under the doctrine of res judicata. FMC’s action is essentially a collateral attack on the judgment entered in the SEC action. The SEC and GM are in privity for the purposes of precluding FMC’s claims and “successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action.” View "First Mortgage Corp. v. United States" on Justia Law

by
The Second Circuit certified two questions to the New York Court of Appeals: 1) Whether a stock conversion option that permits a lender, in its sole discretion, to convert any outstanding balance to shares of stock at a fixed discount should be treated as interest for the purpose of determining whether the transaction violates N.Y. Penal Law 190.40, the criminal usury law. 2) If the interest charged on a loan is determined to be criminally usurious under N.Y. Penal Law 190.40, whether the contract is void ab initio pursuant to N.Y. Gen. Oblig. Law 5-511. View "Adar Bays, LLC v. GeneSYS ID, Inc." on Justia Law

by
The Ninth Circuit affirmed the district court's dismissal of a putative securities class action under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. Plaintiff alleged that a medical device company misled the investing public about whether the FDA would approve the company's new aneurysm sealing product. The panel held that allegations that are implausible do not create a strong inference of scienter under the Private Securities Litigation Reform Act. In this case, plaintiff failed sufficiently to plead facts giving rise to a strong inference that defendants made false or misleading statements either intentionally or with deliberate recklessness. The panel explained that, under the facts alleged, plaintiff's core theory—that the company invested in a U.S. clinical trial and made promising statements about FDA approval, yet knew from its experience in Europe that the FDA would eventually reject the product—has no basis in logic or common experience. Rather, the more plausible inference is that the company made optimistic statements about its prospects for FDA approval. View "Nguyen v. Endologix, Inc." on Justia Law

by
Section 19(d) of the Securities Exchange Act of 1934 is not available as a means to challenge the reasonableness of generally-applicable fee rules. At issue in this appeal is whether fees that national securities exchanges charge for access to their "depth-of-book" data violate the Exchange Act. The DC Circuit held that section 19(d)'s text does not contemplate challenges to generally-applicable fee rules, and the remedy and notice provisions are incompatible with a challenge to fee rules that do not target specific individuals or entities. The court exercised its jurisdiction under 15 U.S.C. 78y(a) and granted the petitions for review of the Commission's decision, vacated, and remanded for further proceedings. View "The NASDAQ Stock Market, LLC v. SEC" on Justia Law

by
The Second Circuit affirmed the district court's denial of plaintiff's motion to file an amended securities fraud complaint against the manufacturers of an allegedly defective surgical gown. The court held that plaintiff's proposed amendment would be futile, because he failed to raise a strong inference of collective corporate scienter by (1) relying on the knowledge of employees unconnected to the challenged statements or (2) pleading that the challenged statements concerned a key product with which the company's senior management would be expected to be familiar. View "Jackson v. Abernathy" on Justia Law

by
The First Circuit affirmed the judgment of the district court ruling against Paraflon Investments, Ltd. on its state-law misrepresentation claims against Fullbridge, Inc. and its principals, Peter Olson and Candice Olson, holding that there was no clear error in the district court's determinations. Fullbridge sought investments from Paraflon regarding a project involving the production of online training courses. After its investment deteriorated, Paraflon brought suit against Fullbridge and the Olsons in federal district court, alleging federal securities fraud claims and common law claims for, inter alia, negligent misrepresentation,and fraudulent misrepresentation. After the case was transferred to the District of Massachusetts the court ruled against Paraflon, finding that Fullbridge did not knowingly or intentionally make a false statement. Paraflon appealed, challenging the district court's disposition of the state-law misrepresentation claims. The First Circuit affirmed, holding (1) there was no clear error in the district court's determination that Fullbridge had a good faith belief that it had received a lucrative award from a third party related to the project; and (2) there was no clear error in the court's determination that Fullbridge's good-faith belief was objectively reasonable based on its experience with the third-party and what it knew at the time of Paraflon's investment. View "Paraflon Investments, Ltd. v. Fullbridge, Inc." on Justia Law