Monday, November 12, 2018 | 6:00 p.m. – 8:30 p.m.
| Program Chair: |
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 Laura H. Posner |
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A motion to dismiss often proves a decisive event in resolving a federal securities class action, raising the stakes both for defeating or winning the motion. A premier faculty of experienced members of the plaintiff and defense bar will present an overview of the legal issues and strategic considerations that inform the filing of a securities class action and lead plaintiff selection process, the drafting of a securities complaint and the briefing of a motion to dismiss. The panel will address the fundamentals of a securities claim, existing precedent and evolving theories, as seen from both sides of the bar. The panel will also offer practical suggestions to increase each side’s chance of success. The presentation will be particularly useful for litigators who are beginning a securities litigation practice as well as seasoned litigators returning to the practice who would like to refresh their knowledge.
Live Program & Webcast: $179 for Members | $279 for Nonmembers
In-House Counsel: Free for Members | $209 for NonmembersMembers who are Recent Law Graduates, Newly Admitted Lawyers (earliest admission 2016-2018 in any state or country), Judges (and their staff), or attorneys that practice within the Government, Academic or Not-for-Profit sectors attend this program for free.
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Serena P. Hallowell
Labaton Sucharow LLPKayvan B. Sadeghi
Morrison & Foerster LLPStephen Sinaiko
Cohen & Gresser LLP -
6:00 p.m. – 6:05 p.m. Welcome & Introduction 6:05 p.m. – 6:40 p.m. Pre-Motion Issues
Pre-complaint investigation- Parallel proceedings
- 90 day look back & damages
- Morrison & class size
Lead counsel/Lead plaintiff selection
Multiple actions/forums- Calpers v. ANZ Securities impact
- Opt-outs (’33 & ’34 Act claims)
- Removal
Defense issues
- Discovery stay
- Document retention
- Witnesses & whistleblowers
- Coordination with other proceedings
- D&O coverage
- Investigation
Standing
Statute of limitations/Repose- How do 2/5 year limits work
- Arco, 949. F. Supp. 2d 532, 545 (SDNY 2013)(how 2 yr. limit works under Merck, 559 U.S. 633)
- Worshipful, 217 F. Supp. 3d 996, 1002 (ED Ark 2016) (describing circuit split over when 5 yr. begins)
6:40 p.m. – 7:20 p.m. Material Statements and Omissions
Janus- Who is a maker
- Group pleading
Materiality
- Matrixx
- Accounting restatements
- SAB 99
- Puffery
Omnicare & Opinions
Safeharbor/forward looking statements
Non-actionable statements- True statements of historical fact
- No inference re: future performance
- Claims based on non-disclosure of corporate mismanagement
Omissions
- Liability for pure omissions
- Leidos and Reg. S-K Item 303
- SEC investigations/Wells notices
- A duty to disclose wrongdoing
Reliance (only generally)
- Basic/Halliburton
- Affiliated use & class actions
7:20 p.m. – 7:35 p.m. Break 7:35 p.m. – 8:15 p.m. Scienter
What is scienter- Recklessness defined
Pleading scienter: PSLRA and Tellabs
Methods of pleading scienter- Novak & 2 prong approach
Pleading motive
- Personal benefit
- Stock sales & stock plans
Pleading recklessness
- Access to contradictory info
- Duty to monitor & red flags
- Confidential Witnesses
- Supporting/contrary inferences
- Concurrent investigations/settlements
- Employment termination
- SOX certification
- GAAP violations
- Executive position
- Magnitude of error
- Core operations
- Self disclosure
- Stock purchases
- Economic irrationality
- Scienter & omissions
Corporate Scienter
8:15 p.m. – 8:30 p.m. Loss Causation
Dura
Approaches to loss causation- Corrective disclosures
- Materialization of risk
Pleading loss causation
- Rule 9(b) & PSLRA
- Indicia
- Investigations
- Poor earnings
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CLE Credit
NY: 2.5 Professional Practice
NJ: 2.6 General
CA: 2.5 General
PA: 2.0 General
Sponsoring Association Committee: Securities Litigation Committee | Daniel H.R. Laguardia, ChairSponsorship Opportunities are Available! Please Contact:
Angie Avila, Membership Outreach and Sponsorships Manager | (212) 382-6608 | aavila@nycbar.org______________________________________________________________