In this Bloomberg BNA Pension & Benefits Daily article, Cohen Milstein Partners Carol V. Gilden and Michael Eisenkraft describe how the antitrust laws and the Commodity Exchange Act, among other laws, can provide additional protection to pension funds’ portfolios in some scenarios where investments may not be protected by the securities laws.
Ms. Gilden and Mr. Eisenkraft explore the two main reasons why this has occurred and then focus on a partial solution for this issue.
From the Class Action Litigation Report
“Pre-dispute arbitration clauses should be restricted because they harm consumer welfare…consumers often don’t grasp the implications of arbitration clauses until they have a dispute and are seeking relief.”
The 1933 Securities Act requires a company, prior to issuing securities via a public offering, to file a registration statement, and § 11 of the Act makes statement issuers liable, via a private right of action, if, inter alia, that statement ‘‘contain[s] an untrue statement of a material fact’’ or ‘‘omit[s] to state a material fact . . . necessary to make the statements therein not misleading.’’ 15 U.S.C. § 77k(a). Section 11 has no scienter requirement, thus the statute makes no mention of an issuer’s intent to mislead.
On Oct. 4, 2013, after the U.S. Court of Appeals for the Sixth Circuit denied its motion to dismiss the plaintiffs’ Securities Act claims (12 CARE 675, 6/20/14), Omnicare Inc. filed a petition for certiorari with the Supreme Court, presenting the following question: ‘‘For purposes of a Section 11 claim, may a plaintiff plead that a statement of opinion was ‘untrue’ merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false— requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held?’’ The Supreme Court granted certiorari March 3, 2014 (12 CARE 1451, 11/7/14) and issued a March 24 opinion by Justice Elena Kagan that delineated the circumstances in which liability can attach to a statement of opinion in a registration statement.
Read Omnicare: Negligence is the New Strict Liability When Pleading Omissions Under the Securities Act
Michael Eisenkraft’s article critically analyzes the reasoning in Stratte-McClure and NVIDIA, explores what this split — on a fundamental issue of securities law — means for both the securities bar and corporations, and provides a prediction as to which way the U.S. Supreme Court would rule should its recent enthusiasm for securities cases extend to resolving this circuit split.
Read Can Silence Keep You Safe? New Debate On 10b-5 Liability
General Motors has recalled over 20 million vehicles in 2014 – more vehicles than it sold last year. Astounding. Even more astounding is that many of these recalls should have occurred long ago, but GM failed to act on information that it was using a defective ignition switch component in many of its vehicles. According to independent safety regulators, that failure to act resulted in the deaths of at least 303 people who were involved in accidents as a result of the defective ignition switches. Given the ever-expanding number of recalls, it is expected that the scope of vehicles recalled will increase, as will the number of injuries and deaths related to GM’s defective vehicles.
This paper was presented by Christine Webber at the National Employment Lawyers Association 2014 Annual Convention, “Blazing the Trail: Courage │Challenge │Change.”
Employer databases contain rich stores of information; understanding how a particular database works and what it contains is the key to unlocking its value as a source of discoverable information.
Before considering common databases in employment litigation, we will provide some down-to-earth explanations of database concepts by examining a something all lawyers are familiar with: billing one’s work. You may not have thought of your time records as constituting a database, but that is exactly what they are. Many of us track our time using practice management software, but database concepts apply equally even if you track your time on paper only. In database parlance, the template or pattern for a time entry is an “object,” and it is generally comprised of several “fields”: the name of the biller, the date the work is performed, the name of the matter, the amount of time, the rate, and a description of the work performed. Each individual time entry that you create is called a “record,” which is a particular instance of the time entry object. The database itself is the collection of all existing time entry records for all cases, for all billers, as well as records for other objects (attorneys, cases, contacts, etc.). When you create an invoice, you are selecting a subset of time entry records from the database for easy presentation to the client or the court. The invoice itself is an example of a “report,” which refers to a snapshot of the database that is used for a particular purpose—here, billing a client. The criteria used to select the pertinent records for a report is called a “query.” By understanding the terms object, record, field, report, and query, you will be well on your way to knowing how to conduct database discovery.
Download Documents v. Data.
Bloomberg BNA Pension & Benefits Daily
By Daniel S. Sommers and S. Douglas Bunch
The Bloomberg BNA Pensions & Benefits Daily article can be read here.
Dougls J. McNamara co-authored, “Reexamining the Seventh Amendment Argument Against Issue Certification,” 34 Pace Law Review, 1041 (2014), along with Blake Boghosian, George Washington University Law School, and Leila Aminpour, Consumer Financial Protection Bureau.
Issue certification is a controversial means of handling aggregate claims in Federal Courts. Federal Rule of Civil Procedure (“FRCP”) 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Issue certification has returned to the radar screen of academics, class action counsel,
and defendants. The Supreme Court’s decision regarding the need for viable damage distribution models in Comcast v. Behrend may spur class counsel in complex cases to bifurcate liability and damages. The successes of tobacco-injury plaintiffs in Florida’s Engle v. Liggett Group cases show that personal injury actions can make use of issue class actions.
While plaintiffs’ securities lawyers are often vilified by the U.S. Chamber of Commerce, elected officials of the Republican party, and other persons and entities associated with the political right, the use of private attorneys to help enforce the nation’s securities laws is actually in synch with a number of the core beliefs typically advocated by those groups.
This use of private attorneys to protect the public constitutes a classic outsourcing of a traditional government function to the private sector, substituting an entrepreneurial group of businesses (private law firms), both motivated and restricted by their need to generate enough revenue to cover their costs, for government employees acting as regulatory enforcers. It also gives investors—including Taft-Hartley pension plans—that most American of privileges: the ability to defend themselves and their property without relying on the government to initiate action.