Justia Securities Law Opinion SummariesArticles Posted in Labor & Employment Law
NOELLE LEE V. ROBERT FISHER, ET AL
Plaintiff brought an action against The Gap, Inc. and its directors “derivatively on behalf of Gap.” Plaintiff’s action alleged that Gap violated Section 14(a) of the Securities Exchange Act of 1934 (the Exchange Act) and Securities and Exchange Commission (SEC) Rule 14a-9 by making false or misleading statements to shareholders about its commitment to diversity. Gap’s bylaws contain a forum-selection clause stating that the Delaware Court of Chancery “shall be the sole and exclusive forum for . . . any derivative action or proceeding brought on behalf of the Corporation.” Lee nevertheless brought her putative derivative action in a California district court. The district court granted Gap’s motion to dismiss Lee’s complaint on forum nonconveniens ground. The Ninth Circuit affirmed the district court’s judgment. The en banc court rejected Plaintiff’s argument that her right to bring a derivative Section 14(a) action is stymied by Gap’s forum-selection clause, which alone amounts to Gap “waiving compliance with a provision of [the Exchange Act] or of any rule or regulation thereunder.” The en banc court explained that the Supreme Court made clear in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220 (1987), that Section 29(a) forbids only the waiver of substantive obligations imposed by the Exchange Act, not the waiver of a particular procedure for enforcing such duties. McMahon also disposes of Plaintiff’s argument that Gap’s forum-selection clause is void under Section 29(a) because it waives compliance with Section 27(a) of the Exchange Act, which gives federal courts exclusive jurisdiction over Section 14(a) claims. View "NOELLE LEE V. ROBERT FISHER, ET AL" on Justia Law
Quinn v. LPL Financial LLC
After the enactment of AB 5 and the filing of Proposition 22 but before the effective date of AB 2257—Plaintiff filed suit against LPL Financial LLC under the Private Attorneys General Act (PAGA). LPL is a registered broker-dealer and registered investment adviser registered with Financial Industry Regulatory Authority, Inc. (‘FINRA’) and the Securities Exchange Commission. Plaintiff and all allegedly aggrieved individuals (the ‘Financial Professionals’) were ‘securities broker-dealers or investment advisers or their agents and representatives that are registered with the Securities and Exchange Commission or the Financial Industry Regulatory Authority. The parties stipulated that on its face, Labor Code Section 2750.3(i)(2) makes the exemption set forth in Section 2750.3(b)(4) retroactive, such that it would cover the entire proposed PAGA period in this action. However, Plaintiff claimed both of those sections are unconstitutional and thus unenforceable. The parties did not stipulate the results of these two tests—the ABC test versus the Borello test. LPL moved for summary adjudication. The trial court upheld the statute as constitutional. The Second Appellate District affirmed and held that the challenged provisions are constitutional. The court explained that Plaintiff maintains the registration aspect of the exemption creates a nonsensically narrow classification. The court held that legislation may recognize different categories of people within a larger classification who present varying degrees of risk of harm and properly may limit regulation to those classes for whom the need for regulation is thought to be more important. Further, the court wrote that, unlike the situation with equal protection law, there may be a large divergence between state and federal substantive due process doctrines. View "Quinn v. LPL Financial LLC" on Justia Law
Murray v. UBS Securities
Plaintiff claimed that UBS Securities, LLC and UBS AG (together “UBS”) fired him in retaliation for reporting alleged fraud on shareholders to his supervisor. Plaintiff sued UBS under the whistleblower protection provision of the Sarbanes-Oxley Act (“SOX”), 18 U.S.C. Section 1514A, and he ultimately prevailed at trial. The Second Circuit vacated the jury’s verdict and remanded to the district court for a new trial. The court explained that the district court did not instruct the jury that a SOX anti-retaliation claim requires a showing of the employer’s retaliatory intent. Section 1514A prohibits publicly traded companies from taking adverse employment actions to “discriminate against an employee . . . because of” any lawful whistleblowing act. 18 U.S.C. Section 1514A(a). Accordingly, the court held that this provision requires a whistleblower-employee, like Plaintiff, to prove by a preponderance of the evidence that the employer took the adverse employment action against the whistleblower-employee with retaliatory intent—i.e., an intent to “discriminate against an employee . . . because of” lawful whistleblowing activity. The district court’s legal error was not harmless. View "Murray v. UBS Securities" on Justia Law
Cobbs, Allen & Hall, Inc., and CAH Holdings, Inc. v. EPIC Holdings, Inc., and McInnis.
Cobbs, Allen & Hall, Inc. ("Cobbs Allen"), and CAH Holdings, Inc. ("CAH Holdings") (collectively,"CAH"), appealed the grant of summary judgment entered in favor of EPIC Holdings, Inc. ("EPIC"), and EPIC employee Crawford E. McInnis, with respect to CAH's claims of breach of contract and tortious interference with a prospective employment relationship. Cobbs Allen was a regional insurance and risk-management firm specializing in traditional commercial insurance, surety services, employee-benefits services, personal-insurance services, and alternative-risk financing services. CAH Holdings was a family-run business. The families, the Rices and the Densons, controlled the majority, but pertinent here, owned less than 75% of the stock in CAH Holdings. Employees who were "producers" for CAH had the opportunity to own stock in CAH Holdings, provided they met certain sales thresholds; for CAH Holdings, the equity arrangement in the company was dictated by a "Restated Restrictive Stock Transfer Agreement." For several years, McInnis and other individuals who ended up being defendants in the first lawsuit in this case, were producers for CAH, and McInnis was also a shareholder in CAH Holdings. In the fall of 2014, a dispute arose between CAH and McInnis and those other producers concerning the management of CAH. CAH alleged that McInnis and the other producers had violated restrictive covenants in their employment agreements with the aim of helping EPIC. Because of the dispute, CAH fired McInnis, allegedly "for cause," and in November 2014 McInnis went to work for EPIC, becoming the local branch manager at EPIC's Birmingham office. After review, the Alabama Supreme Court affirmed the circuit court's judgment finding CAH's breach-of-contract claim against McInnis and EPIC failed because no duty not to disparage parties existed in the settlement agreement. EPIC was not vicariously liable for McInnis's alleged tortious interference because McInnis's conduct was not within the line and scope of his employment with EPIC. EPIC also was not directly liable for McInnis's alleged tortious interference because it did not ratify McInnis's conduct as it did not know about the conduct until well after it occurred. However, the Supreme Court disagreed with the circuit court's conclusion that McInnis demonstrated that he was justified as a matter of law in interfering with CAH's prospective employment relationship with Michael Mercer. Based upon the admissible evidence, an issue of fact existed as to whether McInnis gave Mercer honest advice. Therefore, the judgment of the circuit court was affirmed in part, reversed in part, and the matter remanded for further proceedings. View "Cobbs, Allen & Hall, Inc., and CAH Holdings, Inc. v. EPIC Holdings, Inc., and McInnis." on Justia Law
Goldfarb v. Solimine
Plaintiff Jed Goldfarb claimed defendant David Solimine reneged on a promise of employment after Goldfarb quit his job to accept the promised position managing the sizeable investment portfolio of defendant’s family. The key issue in this appeal involved whether plaintiff could bring a promissory estoppel claim because he relied on defendant’s promise in quitting his prior employment even though, under New Jersey’s Uniform Securities Law of 1997 (Securities Law or the Act), he could not bring a suit on the employment agreement itself. The New Jersey Supreme Court determined the Securities Law did not bar plaintiff’s promissory estoppel claim for reliance damages. The Court affirmed the liability judgment on that claim and the remanded for a new damages trial in which plaintiff would have the opportunity to prove reliance damages. The Court found he was not entitled to benefit-of-the-bargain damages. To the extent that the Appellate Division relied on an alternative basis for its liability holding -- that a later-adopted federal law “family office” exception had been incorporated into the Securities Law -- the Court rejected that reasoning and voided that portion of the appellate court’s analysis. View "Goldfarb v. Solimine" on Justia Law
Daly v. Citigroup Inc.
Plaintiff filed suit against Citigroup, alleging gender discrimination and whistleblower retaliation claims under several local, state, and federal statutes, including the Dodd‐Frank and Sarbanes‐Oxley Acts.The Second Circuit affirmed the district court's judgment and held that the district court appropriately compelled arbitration of all but plaintiffʹs Sarbanes‐Oxley claim, including her Dodd‐Frank whistleblower retaliation claim, because her claims fall within the scope of her employment arbitration agreement and because she failed to establish that they are precluded by law from arbitration. The court also held that plaintiff's Sarbanes‐Oxley claim was properly dismissed because the district court lacked subject matter jurisdiction over it inasmuch as plaintiff failed to exhaust her administrative remedies under the statute. View "Daly v. Citigroup Inc." on Justia Law
Wallace v. Andeavor Corp.
Plaintiff filed suit against his employer, alleging a claim under the anti-retaliation provision of the Sarbanes-Oxley Act. The district court concluded that the employer's decision to fire plaintiff was not prohibited retaliation and that plaintiff did not have an objectively reasonable belief that a violation of reporting requirements had occurred. The Fifth Circuit affirmed the district court's grant of summary judgment for the employer, holding that the district court did not abuse its discretion in finding that paragraph 22 of the declaration of plaintiff's witness was impermissible expert testimony. Therefore, there was no genuine issue of material act as to whether plaintiff's purported belief that his employer was misreporting its revenue was objectively reasonable in light of the undisputed facts. View "Wallace v. Andeavor Corp." on Justia Law
Jackson County Bank v. DuSablon
JCB, an Indiana state-chartered bank, had an agreement with INVEST, a registered broker-dealer, to offer securities to JCB customers. In 2017, JCB assigned DuSablon to assist in identifying and establishing an investment business with a new third-party broker-dealer. DuSablon failed to do so and abruptly resigned. JCB learned that DuSablon had transferred customers’ accounts from INVEST into his own name and had started a competing business. JCB sought a preliminary injunction, asserting violations of the Indiana Uniform Trade Secrets Act, breach of contract, breach of fiduciary duty, tortious interference, unfair competition, civil conversion, and computer trespass. DuSablon moved to dismiss, arguing that JCB lacked standing and that Financial Industry Regulatory Authority (FINRA) rules barred the suit; he removed the case, asserting exclusive federal jurisdiction under 15 U.S.C. 78aa and the Securities and Exchange Act. Although JCB did not plead a federal claim, DuSablon contended that JCB’s response to his motion to dismiss “raises a federal question as all of [JCB’s] claims ... rest upon the legality of direct participation in the securities industry which is ... regulated by the [Securities] Act.” The district court remanded,, concluding that it lacked jurisdiction and that removal was untimely, ordering DuSablon to pay JCB costs and fees of $9,035.61 under 28 U.S.C. 1447(c). The Seventh Circuit dismissed an appeal. DuSablon lacked an objectively reasonable basis to remove the case to federal court. View "Jackson County Bank v. DuSablon" on Justia Law
In Re Investors Bancorp, Inc. Stockholder Litigation
In this appeal, the issue before the Delaware Supreme Court was the limits of the stockholder ratification defense when directors make equity awards to themselves under the general parameters of an equity incentive plan. In the absence of stockholder approval, if a stockholder properly challenges equity incentive plan awards the directors grant to themselves, the directors must prove that the awards are entirely fair to the corporation. But, when the stockholders have approved an equity incentive plan, the affirmative defense of stockholder ratification comes into play. Here, the Equity Incentive Plan (“EIP”) approved by the stockholders left it to the discretion of the directors to allocate up to 30% of all option or restricted stock shares available as awards to themselves. The plaintiffs alleged facts leading to a pleading-stage reasonable inference that the directors breached their fiduciary duties by awarding excessive equity awards to themselves under the EIP. Thus, a stockholder ratification defense was not available to dismiss the case, and the directors had to demonstrate the fairness of the awards to the Company. The Supreme Court reversed the Court of Chancery’s decision dismissing the complaint and remanded for further proceedings. View "In Re Investors Bancorp, Inc. Stockholder Litigation" on Justia Law
Flynn v. SEC
A disinterested observer could not reasonably conclude that the Commission violated SEC Rule of Practice 900(a). Although Rule 900(a) sets timelines by which the Commission would ideally adjudicate cases, the permissive language of the text could not lead an employee to reasonably conclude that failing to meet such aspirational guidelines would amount to a "violation." Plaintiff petitioned for review of the Board's decision affirming the ALJ's determination that plaintiff was not entitled to relief under the Whistleblower Protection Enhancement Act, 5 U.S.C. 2302(b)(8). After plaintiff was fired from his position at the SEC, plaintiff claimed that his supervisor terminated him in reprisal for raising concerns about his section's alleged chronic inefficiency. The Second Circuit held that the ALJ did not err in rejecting plaintiff's Rule 900(a) claim and that the ALJ more than adequately explained why an employee in plaintiff's position could not have reasonably concluded that Rule 900(a) was violated. Because the ALJ did not actually analyze plaintiff's claims that he made protected disclosures when he raised concerns that Adjudication violated Rule 900(b), the court remanded the issue to the ALJ. Finally, the court declined to address plaintiff's claims of evidentiary and discovery error. Accordingly, the court denied in part, granted in part, and remanded for further proceedings. View "Flynn v. SEC" on Justia Law