The Reform Act was passed by the Contract-with-America Congress to address its perception that securities class actions were reflexive, lawyer-driven litigation that often asserted weak claims based on little more than a stock drop, and relied on post-litigation discovery, rather than pre-litigation investigation, to sort the validity of the claims.  

The Reform Act’s centerpiece is…

Over the years, I’ve bemoaned the lack of “litigation” in “securities litigation.”  In this post, I discuss the same problem in “derivative litigation:” why don’t we litigate derivative cases anymore? 

Derivative litigation – in which a stockholder asserts claims that belong to the company – takes multiple forms: tag-along cases to securities class actions;…

Five years ago, we surveyed a decade’s worth of federal district court decisions on motions to dismiss securities claims brought against development-stage biotech companies to answer an important question: are these cases more likely to survive a motion to dismiss—and therefore riskier to insure against—than other securities class actions, as D&O insurers have traditionally assumed?…

I am evangelical about the importance of defense counsel working collegially with D&O insurers and brokers – the repeat players in securities and governance litigation – in the defense of litigation against our common clients.  In the big picture, this type of collegiality is the key to putting “litigation” back in “securities litigation” and to…

The most frequent question I’ve been asked about the SEC’s proposed SPAC rules concerns the provision that would make unavailable the Private Securities Litigation Reform Act’s safe harbor for forward-looking statements with respect to de-SPAC transactions: would this change increase the risk that SPACs and de-SPACs face in securities litigation?

Not much. Public companies understandably…

This week, my team and I again had the honor of writing for Washington Legal Foundation’s Legal Backgrounders series.

In this article, Zach Taylor, Gen York-Erwin, and I discussed the Second Circuit’s recent decision in Arkansas Pub. Emps. Ret. Sys. v. Bristol-Myers Squibb Co., 28 F.4th 343 (2d Cir. 2022).

Here is a…

In 2012, I started the D&O Discourse blog to have a discussion among the repeat players in securities and corporate governance litigation:  insurers, brokers, mediators, economists, plaintiffs’ counsel, and defense counsel.  I share opinions from the defense-counsel perspective, but I call it like I see it.  For example, in a post in anticipation of the…