Gibbons Law Alert

Gibbons Law Alert

Author: Samuel I. Portnoy

SEC Offers Disclosure Guidance and Extensions of Certain Reporting and Disclosure Deadlines

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Posted in Securities

On March 31, 2020

Recognizing the struggle businesses currently face and will continue to face in satisfying their disclosure obligations amid the uncertainty surrounding this unprecedented crisis, the SEC’s Division of Corporate Finance on March 25 issued disclosure guidance specific to the coronavirus pandemic. In its guidance, the Division acknowledges that it “may be difficult to assess or predict with precision, the broad effects of COVID-19 on industries or individual companies” and that “the actual impact will depend on many factors beyond a company’s control and knowledge.” That said, the Division goes on to encourage “timely reporting,” noting that SEC disclosure requirements apply to a “broad range of evolving business risks” that may not be specifically identified, including the “known or reasonably likely effects of and the types of risks presented by COVID-19.” The Division encourages “tailored” disclosure of “material information about the impact of COVID-19 to investors and market participants … that allow investors to evaluate the current and expected impact of COVID-19 through the eyes of management,” and proactive revision and update of those disclosures as facts and circumstances change. The Division identifies in its guidance a non-exhaustive list of specific issues relevant to assessing and disclosing the evolving impact of COVID-19, including: The expected impact of COVID-19 “on future operating results and near-and-long-term financial condition.” Impact...

The Consequences of What We Say: Minimizing Potential Liability Under the Securities Laws

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Posted in Securities

On March 23, 2020

The business challenges posed by the coronavirus are unique and unprecedented. The pervasive uncertainty, market turmoil, and near constant stream of new information inevitably draws our focus to near-term concerns and demands, and action that must be taken quickly to address them. However, it is in these exact times of crisis and uncertainty that companies cannot afford to lose sight of the very real consequences hastily made statements and disclosures may have in terms of liability under the securities laws. Securities class actions and shareholder derivative actions follow negative market activity like night follows day. And the coronavirus pandemic has created, perhaps more than any crisis before it, a perceived need for companies to provide customers, clients, shareholders, and the general public immediate, real-time updates about plans for navigating the pandemic and its impact on operations. Every person reading this post likely has an inbox brimming with emails regarding coronavirus plans and impact from every company with which they have ever transacted any kind of business. When the dust settles, however, it is these very communications—along with any SEC filings, earnings guidance, investor calls, and other public-facing statements regarding business operations issued during this time period—that will be combed for material misstatements and omissions that might form the basis of a securities class or shareholder...

Coming Soon to an Opposition Brief Near You: U.S. Supreme Court Holds That Disseminators of False or Misleading Statements Face Liability for Securities Fraud Under Rules 10b-5(a) and (c) Even Where They Are Not Subject to Liability Under Rule 10b-5(b)

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Posted in Securities

On April 1, 2019

In a decision that is certain to receive a warm welcome from the securities class action plaintiffs’ bar, last week, in Lorenzo v. Securities and Exchange Commission, the U.S. Supreme Court held that a disseminator of a false or misleading statement, who cannot be liable for securities fraud under Rule 10b-5(b) because he or she was not the “maker” of that statement, nonetheless faces liability under Rules 10b-5(a) and (c) and related securities statutes. Under Rule 10b-5(b), it is unlawful to make any untrue statement of material fact in connection with the purchase or sale of a security. Nearly eight years ago, in Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011), the Supreme Court held that only the maker of a false or misleading statement faces liability under Rule 10b-5(b) and that the maker of a statement is the person with ultimate authority over the statement including its contents and whether and how to communicate it. As a result, in that case, an investment adviser who had participated in drafting a false statement included in the prospectus of its mutual fund client avoided liability for securities fraud because the mutual fund, and not the investment adviser, was the maker of the false statement. The decision was of no small significance. In...

District of New Jersey’s Dismissal of Securities Class Action Reiterates Significant Hurdles to Sufficiently Pleading Scienter

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Posted in Securities

On February 8, 2019

A decision last week from the District of New Jersey is the latest of several recent decisions from the District and the Third Circuit making clear that securities fraud plaintiffs face a high bar in pleading an inference of scienter strong enough to withstand a motion to dismiss. In In re Electronics For Imaging, Inc. Securities Litigation, Plaintiffs brought a securities fraud class action alleging that Electronics For Imaging, Inc. (EFI), and two of its executives, violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. According to Plaintiffs, Defendants falsely assured investors in a Form 10-K and Form 10-Q (and accompanying Sarbanes Oxley certifications) that EFI’s internal controls over financial reporting were functional and effective—including by asserting that those controls had been reviewed, evaluated, and improved. A subsequent press release and amendments to the Form 10-K and Form 10-Q identified material weaknesses in EFI’s internal controls. Plaintiffs filed suit in the wake of a drop in EFI stock price that occurred after the press release was issued. Defendants moved to dismiss for failure to sufficiently plead scienter. In support of scienter, Plaintiffs alleged that Defendants’ record keeping practices so egregiously violated generally accepted accounting principles that Defendants either: (i) lied when they asserted they had previously reviewed and evaluated...

In Affirming Dismissal of Putative Securities Class Action, Third Circuit Provides Important Guidance for Evaluating Sufficiency of Scienter Allegations

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Posted in Securities

On October 4, 2018

A recent precedential decision from the Third Circuit may make it more difficult for putative securities class actions to withstand motions to dismiss and provides useful guidance for district courts in making the often difficult determination whether a complaint adequately pleads the strong inference of scienter necessary to sustain a federal securities fraud claim. In In re Hertz Global Holdings, Inc., certain pension funds brought a securities fraud class action alleging that Hertz Global Holdings, Inc. and certain of its current and former executives violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. Plaintiffs’ complaint relied heavily on a financial restatement Hertz issued with its fiscal year 2014 Form 10-K, which corrected errors to Hertz’s 2011, 2012, and 2013 financial statements. According to the restatement, Hertz had overstated its pre-tax income by a total of $215 million and its net income by a total of $132 million during the three-year period. The restatement explained that “an inconsistent and sometimes inappropriate tone at the top was present under then existing senior management” which “resulted in an environment which in some instances may have led to inappropriate accounting decisions and the failure to disclose information critical to . . . effective review.”  Plaintiffs alleged that the restatement constituted an admission that...

Enough Said: Southern District of New York Decision Reiterates Limits of Disclosure Obligations Under Securities Laws

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Posted in Securities

On April 17, 2018

The Southern District of New York’s recent decision in Employees Retirement System of the City of Providence v. Embraer S.A. may provide useful guidance for companies struggling with disclosure obligations in the midst of ongoing investigations into potential unlawful conduct. Defendant Embraer, S.A., a Brazilian aircraft manufacturer, made a series of disclosures regarding external and internal investigations into potential U.S. Foreign Corrupt Practices Act (FCPA) violations. Specifically, in November 2011, Embraer disclosed investigations by the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) and advised that it had retained outside counsel to conduct an internal investigation. Although the company repeatedly warned that it may be required to pay substantial fines or incur other sanctions, it also stated early in the investigation that it did not believe there was a basis to estimate reserves or quantify any loss contingency. In July 2016, Embraer announced that settlement negotiations with the DOJ and SEC had progressed to a point warranting recognition of a $200 million loss contingency. Nearly three months later, the company announced a settlement that included a fine of over $107 million and disgorgement of nearly $84 million in profits. On December 13, 2016, Employees’ Retirement System of the City of Providence filed an amended class action complaint alleging violations of Securities Exchange Act...

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