Justia Securities Law Opinion Summaries

Articles Posted in Securities Law
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The case in question concerns the United States Court of Appeals for the Eleventh Circuit's decision on whether Ibrahim Almagarby and his company, Microcap Equity Group, LLC, violated the Securities Exchange Act of 1934 by buying and selling securities without registering as a "dealer". Almagarby was a so-called “toxic” lender who bought the convertible debt of penny-stock companies, converted the debt into common stock at a discount, and then sold the stock in high volumes. The Securities and Exchange Commission (SEC) filed a civil action against Almagarby, alleging that his conduct constituted dealing, which required registration. The district court ruled in favor of the SEC, ordered Almagarby to disgorge all profits, and permanently enjoined him from future securities law violations and participation in penny-stock offerings.On appeal, the Eleventh Circuit upheld the district court’s ruling that Almagarby was acting as an unregistered “dealer” in violation of the Exchange Act, but found that the district court abused its discretion by imposing a penny-stock ban. The court determined that Almagarby’s high volume of transactions, quick turnaround of sales, and the fact that his entire business relied on flipping penny stocks qualified him as a dealer under the Exchange Act. However, the court ruled that the district court overstepped in enjoining Almagarby from future participation in penny-stock offerings as his actions were not egregious enough to warrant such a bar. The court also rejected Almagarby's claim that the SEC's action violated his due process rights, noting that the Commission did not rely on a novel enforcement theory that contradicted longstanding agency guidance. The court affirmed in part and reversed in part, upholding the judgment against Almagarby but striking down the penny-stock ban. View "Securities and Exchange Commission v. Almagarby" on Justia Law

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In the case before the Court of Chancery of the State of Delaware, the plaintiff, West Palm Beach Firefighters' Pension Fund, filed a lawsuit against Moelis & Company on behalf of itself and other Class A stockholders of Moelis & Company. In 2014, Moelis & Company had entered into a stockholders agreement with three entities controlled by its CEO, Ken Moelis. The plaintiff argued that certain provisions in that agreement, which granted expansive rights to Ken Moelis, violated Section 141(a) of the Delaware General Corporation Law (DGCL).The Court found that the plaintiff's claims were not non-justiciable due to the plaintiff both suing too late and too early. The Court rejected the defendant's arguments that the plaintiff waited too long to file the lawsuit under the doctrine of laches, as the plaintiff's challenge to the legality of the provisions in the stockholders agreement was not time-barred. The Court also rejected the defendant's argument that the plaintiff sued too early, stating that the plaintiff could bring a facial challenge to the legality of the provisions in the agreement.The Court denied the defendant's motion for summary judgment on the basis of laches and ripeness. The Court held that the plaintiff's claim was ripe for adjudication and was not barred by the equitable defense of laches. The Court concluded that neither the passing of time nor the act of purchasing shares could validate a provision that is void as a violation of statutory law. The Court's decision is significant in affirming that claims challenging the validity of provisions in a corporate document that are contrary to statutory law are justiciable and cannot be barred by laches or ripeness defenses. The case now continues for further proceedings. View "West Palm Beach Firefighters' Pension Fund v. Moelis & Company" on Justia Law

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In this case before the United States Court of Appeals for the Second Circuit, the plaintiffs were U.S. investors who purchased Mexican government bonds. They alleged that the defendants, Mexican branches of several multinational banks, conspired to fix the prices of the bonds. The defendants sold the bonds to the plaintiffs through non-party broker-dealers. The defendants moved to dismiss the case for lack of personal jurisdiction, and the District Court granted the motion, concluding that it lacked jurisdiction as the alleged misconduct, price-fixing of bonds, occurred solely in Mexico.Upon appeal, the Second Circuit vacated and remanded the case. The court found that the defendants had sufficient minimum contacts with New York as they had solicited and executed bond sales through their agents, the broker-dealers. The plaintiffs' claims arose from or were related to these contacts. The court rejected the defendants' argument that the alleged wrongdoing must occur in the jurisdiction for personal jurisdiction to exist, stating that the defendants' alleged active sales of price-fixed bonds through their agents in New York sufficed to establish personal jurisdiction. The court remanded the case for further proceedings consistent with its opinion. View "In re: Mexican Government Bonds Antitrust Litigation" on Justia Law

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Trevor Murray worked as a research strategist at UBS, a securities firm. His job involved reporting on commercial mortgage-backed securities markets to current and future customers. Under SEC regulations, Murray was required to certify that his reports were produced independently and reflected his own views. When two leaders of the CMBS trading desk pressured him to make his reports more supportive of their business strategies, Murray told his supervisor about it. The supervisor told Murray not to alienate the trading desk and to write what the business line wanted. He eventually recommended that Murray be removed from his position, despite having recently given him a strong performance review. When the CMBS trading desk did not accept Murray as a transfer, he was fired.Murray argued that he was terminated in violation of the whistleblower protection provision in the Sarbanes-Oxley Act because UBS fired him in response to his internal reporting about fraud on shareholders. He prevailed at trial, but the Second Circuit Court of Appeals vacated the jury’s verdict and remanded for a new trial. It found that the whistleblower protection provision requires an employee to prove retaliatory intent, which a clarifying jury instruction had not properly indicated.The U.S. Supreme Court disagreed, instead agreeing with the Fifth and Ninth Circuits that the whistleblower protection provision does not impose this type of requirement. The Court acknowledged that a whistleblower must prove that his protected activity was a contributing factor in the adverse action against him, but it noted that the text of the statute does not include or refer to a requirement of proving retaliatory intent, which it treated as similar to “animus.” The Court noted that the statute contains a burden-shifting framework, requiring the whistleblower to show that their protected activity was a contributing factor in the adverse action, after which the employer must show that it would have taken the same action anyway. It found that a requirement of proving retaliatory intent would be incompatible with the burden-shifting framework. View "Murray v. UBS Securities, LLC" on Justia Law

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The case involves a whistleblower-retaliation action brought by Tayo Daramola, a Canadian citizen, under the Sarbanes-Oxley and Dodd-Frank Acts. Daramola was employed by Oracle Canada, a subsidiary of Oracle America, and worked remotely from Canada. He alleged that Oracle America and its employees retaliated against him for reporting suspected fraud related to one of Oracle's software products.The United States Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of Daramola's action. The court held that the whistleblower anti-retaliation provisions in the Sarbanes-Oxley and Dodd-Frank Acts do not apply outside the United States. The court applied a presumption against extraterritoriality and concluded that the presumption was not overcome because Congress did not affirmatively and unmistakably instruct that the provisions should apply to foreign conduct.The court further held that this case did not involve a permissible domestic application of the statutes, given that Daramaola was a Canadian working out of Canada for a Canadian subsidiary of a U.S. parent company. The court agreed with other circuits that the focus of the Sarbanes-Oxley anti-retaliation provision is on protecting employees from employment-related retaliation, and the locus of Daramola's employment relationship was in Canada. The court also concluded that Daramola did not allege sufficient domestic conduct in the United States in connection with his Dodd-Frank claim. The same reasoning disposed of Daramola’s California state law claims. View "DARAMOLA V. ORACLE AMERICA, INC." on Justia Law

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A group of 18 pension and retirement funds and other investors alleged that 10 large banks conspired to rig U.S. Treasury auctions and boycott the emergence of direct, "all-to-all" trading between buy-side investors on the secondary market for Treasuries. The alleged conspiracies violated Section 1 of the Sherman Act. The investors failed to demonstrate that the banks formed an anticompetitive agreement, which is necessary to plead their antitrust claims. The allegations of wrongful information-sharing amounted to inconsequential market chatter and their statistical analyses were not sufficiently focused on the defendant banks. The United States Court of Appeals for the Second Circuit affirmed the district court's dismissal of the lawsuit, agreeing that the investors failed to plausibly allege that the banks engaged in a conspiracy to rig Treasury auctions or to conduct a boycott on the secondary market. View "In re Treasury Securities Auction Antitrust Litigation" on Justia Law

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In this case before the United States Court of Appeals For the Second Circuit, two investment firms, held debt securities issued by FriendFinder Networks, Inc., and an affiliate. Several years later, FriendFinder’s founder, through a trust in his own name, unilaterally reduced the securities’ payment terms under the governing Indenture. The investment firms sued, alleging that the Trust Indenture Act (TIA) barred FriendFinder and its founder from changing the payment terms without their consent. The district court dismissed the case, holding that the TIA did not protect this Indenture because the underlying exchange offer was a private placement under the Securities Act of 1933, and the TIA does not apply to private placements. On appeal, the Second Circuit affirmed the district court's decision. The court held that, since the securities were issued through a private offering rather than a public one, the TIA did not apply. Therefore, the no-action clause in the Indenture, which barred the plaintiffs' lawsuit unless certain conditions were met, was not invalidated by the TIA. The court also determined that the plaintiffs' claim did not fall within the payment carve-out from the no-action clause, which allows suit for the enforcement of the right to receive payment of principal or interest on the securities. The court concluded that the plaintiffs' lawsuit was barred by the no-action clause and that the TIA did not invalidate that clause. View "Chatham Capital Holdings, Inc. v. Conru" on Justia Law

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The United States Court of Appeals for the Fifth Circuit reversed and vacated parts of a judgment against EOX Holdings, L.L.C., and Andrew Gizienski ("Defendants") in a case initiated by the Commodity Futures Trading Commission ("CFTC"). The CFTC had accused the defendants of violating a rule that prevents commodities traders from "taking the other side of orders" without clients' consent. The court ruled that the defendants lacked fair notice of the CFTC's interpretation of this rule. The case revolved around Gizienski's actions while working as a broker for EOX, where he had discretion to make specific trades on behalf of one of his clients, Jason Vaccaro. The CFTC argued that Gizienski's actions violated the rule because he was making decisions to trade opposite the orders of other clients without their knowledge or consent. The court, however, ruled that the CFTC's interpretation of the rule was overly broad, as it did not provide sufficient notice that such conduct would be considered taking the other side of an order. The court reversed the penalty judgment against the defendants, vacated part of the injunction against them, and remanded the case for further proceedings. View "Commodity Futures v. EOX Holdings" on Justia Law

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In the case of a contested divorce between Quin Whitman and Douglas F. Whitman, the founder of a once successful hedge fund, the Court of Appeal of the State of California ruled on several issues. The court affirmed that Doug failed to prove he retained any separate property interest in the hedge fund at the time of dissolution, despite an initial $300,000 investment of his own separate funds. The court also ruled that the community was not financially responsible for any of the legal fees Doug incurred to defend against criminal charges brought against him for insider trading or the $250,000 fine imposed on him in that case. However, the court erred in holding the community responsible for the $935,000 penalty imposed by the Securities and Exchange Commission for illegal insider trading. Quin did not demonstrate that the court erred in holding the community responsible for legal fees expended by the hedge fund when it intervened as a third party into these proceedings. The court also concluded that Quin failed to prove her claim that Doug breached his fiduciary duty in connection with the sale of the couple’s luxury home. The court concluded that the couple’s entire interest in the hedge fund is community property, subject to equal division. The court also found that Doug's legal expenses incurred in defending against insider trading charges and the $250,000 fine imposed on him were his separate debts. View "In re Whitman" on Justia Law

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The Court of Chancery of the State of Delaware has selected the Friedlander Team as lead counsel and the NYC/Oregon Funds as lead plaintiffs in a derivative lawsuit against Fox Corporation. After the 2020 presidential election, Fox News broadcasted statements accusing two voting machine companies of facilitating election fraud, leading to defamation lawsuits against the network. Fox Corporation paid $787.5 million to settle one lawsuit, with another still pending. As a result, various stockholders filed derivative complaints, seeking to shift the losses from the corporation to the directors and officers allegedly responsible for the harm. The court was required to choose between two competing teams of attorneys to lead the consolidated actions. After evaluating the teams according to recently amended Rule 23.1, which identifies factors for consideration when resolving leadership disputes, the court selected the Friedlander Team and the NYC/Oregon Funds. The court noted the deliberate, client-driven process through which these entities were chosen, their resources and expertise, and the legitimacy conferred by the involvement of public officials. View "In re Fox Corporation Derivative Litigation" on Justia Law