On April 28, 2022, a state appellate court for the first time addressed provisions in a public company’s certification of incorporation that designate federal court as the sole forum for the litigation of Section 11 claims. Wong v. Restoration Robotics, Inc., – Cal. Rptr. 3d –, 2022 WL 1261423. Section 11 of the Securities Act of 1933 gives stock purchasers a claim against stock issuers and a broad range of other defendants for materially false or misleading statements in registration statements. (more…)
Securities class actions against life sciences companies are almost always second-order problems. The first-order problem is a business or regulatory setback that, when disclosed by the company or a third party, is followed by a stock price drop. Following the decline, plaintiffs’ class-action attorneys will search the company’s previous public statements in search of inconsistencies between past positive comments and the current negative development. In most cases, plaintiffs’ attorneys will seek to show that any arguable inconsistency amounts to fraud—that is, they will claim that the earlier statement was knowingly or recklessly false or misleading. Where a company makes the challenged statement in a public offering document (that is, a registration statement or prospectus), plaintiffs need only show that the statement was materially false or misleading, not that it was made with scienter, i.e., the requisite state of mind.
Companies that have endured a corporate trauma are often faced with a two-headed monster of litigation: first, a federal securities class action, typically alleging that misstatements or omissions inflated the company’s stock price because the company failed adequately to predict, or disclose the likelihood of, the trauma; and, second, stockholder litigation claiming that the company’s directors (and sometimes officers) breached their state-law fiduciary duties in subjecting the company to the costs of defending or settling the securities litigation. In order to avoid (or at least defer unless and until necessary) the expense and distraction of litigating identical or overlapping issues in two or more fora, defendants often have sought a stay, by agreement or motion, of the fiduciary duty litigation, pending at least resolution of a threshold motion to dismiss in federal court. This approach has proven beneficial for all involved because it allows the parties to concentrate their resources in the federal proceeding that will determine whether viable disclosure claims have been alleged; if those claims fail, then there may no longer be any basis to pursue the state-law fiduciary duty claim and all can save the resources of litigating those claims in the meantime. (more…)
We previously wrote about the MultiPlan Corp. SPAC litigation relating to the de-SPAC merger of Churchill Capital Corp. III (“Churchill”) and its target, MultiPlan Corp. On January 3, the Delaware Court of Chancery issued its long-anticipated decision on the defendants’ motion to dismiss—the first dispositive motion to be briefed and decided in the Delaware courts in the wave of recent SPAC litigation. Below we highlight some key takeaways. (more…)
We previously wrote about the trend of SPAC (special purpose acquisition company) lawsuits filed in the Delaware Court of Chancery, with some combination of the post-merger entity, its board of directors, or the SPAC sponsor named as defendants. Over the course of this year, we have seen this trend continue, with a number of new SPAC lawsuits filed in the Court of Chancery since we last wrote on this topic. Several recent complaints filed in the Court of Chancery exemplify that the same recurring issues discussed in this space previously (e.g., alleged sponsor conflicts of interest, a hasty process to speedily complete a de-SPAC deal, lack of pre-merger diligence) likely will continue to feature prominently in SPAC litigations. (more…)
As commented on in this space previously (here, here, and here), 2020 and the beginning of 2021 have seen an explosion in popularity of Special Purpose Acquisition Company (“SPAC”) deals. As readers know, SPACs have become one of the predominant vehicles for raising funds outside of the traditional IPO. Historically, SPACs have been the target of litigation relatively infrequently, but that trend is changing with the recent SPAC boom and the corresponding increase in public awareness and interest (including from regulators, short sellers, and the securities plaintiffs’ bar). Along with the increase in federal securities suits filed against pre- and post-de-SPAC companies, a trend likewise may be emerging in the Delaware Court of Chancery: a handful of stockholder suits alleging breach of fiduciary duties have been filed against SPAC entities and/or their boards of directors recently. We highlight a few below.
Securities class actions against life sciences companies are almost always second-order problems. The first-order problem is a business or regulatory setback that, when disclosed by the company or a third party, triggers a stock price decline. Following the decline, plaintiffs’ class-action attorneys will search the company’s previous public statements and seek to identify inconsistencies between past positive comments and the current negative development. In most cases, plaintiffs’ attorneys will seek to show that any arguable inconsistency amounts to fraud — that is, they will claim that the earlier statement was knowingly or recklessly false or misleading. Where a company makes the challenged statement in a public offering document — a registration statement or prospectus — plaintiffs need only show that the statement was materially false or misleading, not that it was made with scienter.
Just before year-end, the Delaware Court of Chancery issued a notable decision regarding disclosures around equity incentive plans. On December 16, 2020, the Chancery Court dismissed a stockholder’s direct claim that members of the board of Columbia Financial Inc. (“Columbia” or the “Company”) breached fiduciary duties for failing to disclose purportedly material information regarding equity awards provided to directors. The decision provides guidance on standards for adequate disclosures and affirms the Chancery Court’s willingness to decide questions of materiality at the pleading stage.