United States: The Changing Landscape Of Securities And M&A Litigation

Introduction

This has been an extraordinary year in the world of securities litigation. The US Supreme Court issued a major decision addressing liability for statements of opinion, and the recent death of Justice Scalia has created new uncertainty for business litigants. In Delaware, there was a radical shift in M&A litigation, as the Delaware Chancery Court abruptly started rejecting "disclosure-only" settlements in mid-2015. Finally, the Department of Justice announced a new policy initiative targeting individuals involved in corporate wrongdoing.

The first part of this article addresses recent developments in federal securities litigation. The second part addresses recent trends in M&A litigation. The last part addresses government investigations of corporate wrongdoing.

Federal Securities Litigation

Over the last decade, the US Supreme Court has devoted extraordinary attention to federal securities class actions. The Roberts Court has altered the landscape of federal securities jurisprudence in numerous respects: narrowing the jurisdictional reach of the federal securities laws, limiting claims against secondary actors, redefining pleading and class certification standards, and addressing questions of materiality, loss causation, and the statute of limitations.

Between 2006 and 2014, the Supreme Court issued no fewer than twelve seminal decisions interpreting the federal securities laws. Moreover, this list does not include other equally important Supreme Court decisions affecting public corporations, including class certification standards, commercial arbitration, and employment liability.

In 2015, the Supreme Court issued another landmark opinion – this one an opinion about opinions. In Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund,1 the Court addressed the question of liability under the Securities Act of 19332 for statements of opinion contained in a company's offering documents.

Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund

In Omnicare, the Supreme Court held that a statement of opinion does not constitute an "untrue statement of fact" simply because the stated opinion ultimately proves incorrect.3

Section 114 of the 1933 Act authorizes a purchaser of securities to file a private lawsuit against an issuer of securities if the company's registration statement either "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."5 Omnicare, a pharmacy services company, filed a registration statement in connection with a public offering of common stock. The company's registration statement contained a statement expressing the company's opinion that it was in compliance with federal and state laws. After the federal government filed suit against Omnicare for allegedly receiving kickbacks from pharmaceutical manufacturers, a group of pension funds that had purchased Omnicare stock filed suit under section 11. They claimed that Omnicare's statements constituted "untrue statement[s] of . . . material fact" and that Omnicare "omitted to state [material] facts necessary" to make those statements not misleading.6

The District Court granted Omnicare's motion to dismiss. Because the pension funds had not alleged that Omnicare's officers knew they were violating the law, the court found that the funds had failed to state a section 11 claim.7 The Sixth Circuit reversed, holding that no showing of subjective disbelief was required. Since Omnicare's opinions were objectively false, the Sixth Circuit held that the plaintiff funds had sufficiently pleaded a violation of section 11.8

The Supreme Court held that a "sincere statement of pure opinion is not an 'untrue statement of material fact,' regardless whether an investor can ultimately prove the belief wrong." Writing for the majority, Justice Kagan colorfully explained:

A fact is "a thing done or existing" or "[a]n actual happening." An opinion is "a belief," a "view," or a "sentiment which the mind forms of persons or things." Most important, a statement of fact ("the coffee is hot") expresses certainty about a thing, whereas a statement of opinion ("I think the coffee is hot") does not. . . .

A company's CEO states: "The TVs we manufacture have the highest resolution available on the market." Or, alternatively, the CEO transforms that factual statement into one of opinion: "I believe" (or "I think") "the TVs we manufacture have the highest resolution available on the market." The first version would be an untrue statement of fact if a competitor had introduced a higher resolution TV a month before—even assuming the CEO had not yet learned of the new product. The CEO's assertion, after all, is not mere puffery, but a determinate, verifiable statement about her company's TVs; and the CEO, however innocently, got the facts wrong. But in the same set of circumstances, the second version would remain true. Just as she said, the CEO really did believe, when she made the statement, that her company's TVs had the sharpest picture around. And although a plaintiff could later prove that opinion erroneous, the words "I believe" themselves admitted that possibility, thus precluding liability for an untrue statement of fact.9

The plaintiff pension funds claimed that Omnicare's belief turned out to be wrong—that whatever the company thought, it was in fact violating antikickback laws. But that allegation does not give rise to liability. Section 11 simply does not permit a plaintiff "to Monday morning quarterback an issuer's opinions."10

This did not end the inquiry, however. The Court noted that Omnicare's statements could be misleading under Section 11 if they omitted to state "material facts about the issuer's inquiry into, or knowledge concerning, a statement of opinion."11 The Court explained:

As long as an opinion is sincerely held, Omnicare argues, it cannot mislead as to any matter, regardless what related facts the speaker has omitted. ...

But Omnicare takes its point too far, because a reasonable investor may, depending on the circumstances, understand an opinion statement to convey facts about how the speaker has formed the opinion—or, otherwise put, about the speaker's basis for holding that view. And if the real facts are otherwise, but not provided, the opinion statement will mislead its audience. Consider an unadorned statement of opinion about legal compliance: "We believe our conduct is lawful." If the issuer makes that statement without having consulted a lawyer, it could be misleadingly incomplete. In the context of the securities market, an investor, though recognizing that legal opinions can prove wrong in the end, still likely expects such an assertion to rest on some meaningful legal inquiry—rather than, say, on mere intuition, however sincere. Similarly, if the issuer made the statement in the face of its lawyers' contrary advice, or with knowledge that the Federal Government was taking the opposite view, the investor again has cause to complain: He expects not just that the issuer believes the opinion (however irrationally), but that it fairly aligns with the information in the issuer's possession at the time.12

Whether an omission causes an opinion to be misleading will depend on the context.13 According to Justice Kagan, "[t]hat means considering the foundation she would expect an issuer to have before making the statement."14 To state a claim, an investor "must identify particular (and material) facts going to the basis for the issuer's opinion—facts about the inquiry the issuer did or did not conduct or the knowledge it did or did not have—whose omission makes the opinion statement at issue misleading to a reasonable person reading the statement fairly and in context."15

Neither the district court nor the Sixth Circuit had considered the pension funds' omission theories under the standards articulated by the Supreme Court. Therefore, the case was remanded to the district court for a determination as to whether the plaintiffs have stated a viable omission claim.16

The case is still active at the district court. The plaintiff funds now argue that Omnicare omitted to disclose various attorney warnings that the defendants had received about the alleged kickback transactions. Omnicare counters that plaintiffs' amended complaint "comes nowhere close to meeting the Supreme Court's new pleading standard," which the Court expressly stated would be "no small task."17

An Uncertain Future

Many of the Supreme Court's most important business-law decisions were authored by Justice Antonin Scalia, including securities cases such as Morrison v. National Australia Bank, which limited the territorial reach of the Exchange Act.18 More to the point, Justice Scalia wrote the majority opinion in a number of sharply divided business cases that were decided by a narrow 5-4 or 5-3 vote.19

In the aftermath of Justice Scalia's death, it remains to be seen whether the Court will continue to favor business interests. Perhaps not, at least in the minds of some observers. Dow Chemical, for example, recently announced that it has agreed to pay $835 million to settle an antitrust case pending before the Supreme Court after Justice Antonin Scalia's death reduced its chances of overturning a jury award.20

At the present time, there is considerable uncertainty concerning Justice Scalia's successor. The nominating process is the subject of intense political dispute, and the seat may remain vacant until after the presidential election. In the meantime, the Court hangs in the balance on many important business issues.

M&A Litigation

Until mid-2015, shareholder plaintiffs challenged almost all large US mergers and acquisitions. In 2012, for example, lawsuits were filed in 96 percent of all M&A deals with a value in excess of $500 million.21 This is an astonishing number, signifying that shareholder litigation had become a virtual certainty in the aftermath of a merger announcement. Indeed, most transactions generated multiple lawsuits—an average of 5.4 lawsuits per transaction for deals valued at over $500 million. Smaller deals did not fare much better. Shareholder suits were filed in 93 percent of M&A transactions with a value in excess of $100 million.

In a typical M&A suit, the plaintiff shareholder (on behalf of a class or sometimes derivatively on behalf of the corporation) alleges that the target's board of directors violated its fiduciary duties by conducting a flawed sales process that failed to maximize shareholder value. The plaintiffs' allegations may include attacks on the process used to identify a purchaser (such as the absence of a competitive auction, or a failure to shop the company to other potential bidders), concerns about deal protections that may discourage other competitive bids, or the impact of various conflicts of interest on the part of management or investment bankers. In almost every case, plaintiffs allege that the company failed to disclose important information about the deal to shareholders, thereby depriving shareholders of the ability to make an informed decision in the voting process.

In most cases, it has been these disclosure allegations that drive the lawsuit and form the basis of a settlement. One recent study found that 80 percent of M&A settlements were "disclosure only," with no monetary relief awarded to shareholders.22 A typical "disclosure only" settlement involves an agreement by the company to disclose additional information about the sale process, followed by a fee award to the plaintiffs' attorneys for their efforts in obtaining the additional disclosures.

M&A litigation is hardly new, but the ubiquity of such claims is a fairly recent phenomenon. In 2007, approximately 50 percent of large M&A deals resulted in shareholder claims. And in 2000, only 11 percent of announced M&A offers generated litigation.23 Not surprisingly, the recent proliferation of such claims has created controversy, with numerous commentators and business groups calling for change.24

In 2015, the Delaware Chancery Court signaled an end to the era of disclosure-based settlements. The change was first announced on July 8, 2015, when two different judges refused to approve such settlements. In Acevedo v. Aeroflex, Vice Chancellor Laster rejected a proposed settlement that "[did] not provide any identifiable much less quantifiable benefit to stockholders."25 The court bemoaned the "real consequences, all of them bad,"26 associated with routine approval of these settlements, including:

  • "[O]mnipresent litigation undercuts the credibility of the litigation process. When every deal is subject to dispute, it is easy to look askance at stockholder litigation without remembering that stockholder litigation is actually an important part of the Delaware legal framework."

  • Routine settlements also mean that some—indeed, probably many—cases that should be litigated actually don't get litigated ..."
  • [I]ntergalactic" releases provide "virtually blanket protection against any type of recovery," and far exceed the scope of plaintiffs' due diligence.
  • [W]orst of all, it undercuts Delaware's credibility as an honest broker in the legal realm."

On the same day, Vice Chancellor Noble similarly announced that he has been "struggling" with the concept of disclosure-based settlements, and he wanted some time to reflect on the appropriate scope of the releases given in the context of such settlements.27 Noble explained that "[t]his is something which I have struggled with over many years, and I finally decided this was the one that I wanted to raise the issue in. ... I have approved a lot of settlements where the disclosures were no better or no worse than the disclosures here. But this is more of ... a structural question that I'm struggling with."

Two months later, Vice Chancellor Glasscock reluctantly approved a disclosure-based settlement in light of the parties' "reasonable reliance" on the court's prior approval of such settlements. Glasscock warned, however, that such deference to the parties' expectations "will be diminished or eliminated going forward."28

In January 2016, Chancellor Bouchard put the last nail in the coffin, rejecting a disclosure-based settlement in a lawsuit arising from Zillow's acquisition of Trulia.29 After concluding that the settlement did not provide any "meaningful consideration" to the shareholders, the Chancellor addressed "on a broader level" the "proliferation of disclosure settlements ... [that rarely yield genuine benefits for stockholders and threaten the loss of potentially valuable claims that have not been investigated with rigor."

The Chancellor criticized the filing of stockholder claims after "virtually every transaction," and he lamented that "far too often such litigation serves no useful purpose for stockholders." Instead, such lawsuits serve only "to generate fees for certain lawyers who are regular players in the enterprise of routinely filing hastily drafted complaints on behalf of stockholders on the heels of the public announcement of a deal and settling quickly on terms that yield no monetary compensation to the stockholders they represent." The plaintiffs' leverage is the threat of an injunction to prevent a merger transaction from closing. "Faced with that threat, defendants are incentivized to settle quickly in order to mitigate the considerable expense of litigation and the distraction it entails, to achieve closing certainty, and to obtain broad releases as a form of 'deal insurance.'"

Chancellor Bouchard made it clear that those days are over:

[P]ractitioners should expect that disclosure settlements are likely to be met with continued disfavor in the future unless the supplemental disclosures address a plainly material misrepresentation or omission, and the subject matter of the proposed release is narrowly circumscribed to encompass nothing more than disclosure claims and fiduciary duty claims concerning the sale process, if the record shows that such claims have been investigated sufficiently.30

Even before Trulia, the Chancery Court's decisions in Aeroflex, Intermune, and Riverbed, among others, already had reduced the number of M&A lawsuits filed in recent months. In 2014, 95 percent of merger transactions generated shareholder claims. By the fourth quarter of 2015, the litigation rate had plummeted to 21.4 percent.31

Litigation in Delaware has irrevocably changed. Undoubtedly, fewer cases will be filed. But defendants are also giving up the opportunity to obtain global releases relatively cheaply, and those cases that are filed may be more difficult and expensive to resolve. For now, uncertainty prevails.

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Footnotes

1 Omnicare, Inc. v. Laborers Dist. Council Const. Industry Pension Fund, 135 S. Ct. 1318, 191 L. Ed. 2d 253 (2015).

2 15 U.S.C.A. §§ 77a et seq.

3 Omnicare, 135 S. Ct. at 1321.

4 See 15 U.S.C.A. § 77k.

5 15 U.S.C.A. §77k(a).

6 Omnicare, 135 S. Ct. at 1324.

7 Omnicare, 135 S. Ct. at 1324.

8 Omnicare, 135 S. Ct. at 1324.

9 Omnicare, 135 S. Ct. at 1325-26 (citations omitted).

10 Omnicare, 135 S. Ct. at 1327. The Court emphasized that opinion statements may be actionable if the opinion expressed was not sincerely held, or if the opinions contain embedded statements of untrue facts. Omnicare's sincerity, however, was not contested, and the statements were pure opinion. Omnicare, 135 S. Ct. at 1326-27.

11 Securities Act of 1933 § 11; Omnicare, 135 S. Ct. at 1327-28.

12 Omnicare, 135 S. Ct. at 1328-29.

13 Omnicare, 135 S. Ct. at 1330.

14 Omnicare, 135 S. Ct. at 1332.

15 Omnicare, 135 S. Ct. at 1332.

16 Omnicare, 135 S. Ct. at 1332-33.

17 See "Omnicare Says High Court Ruling Vanquishes Investor Suit," Law360 (March 11, 2016); Omnicare, 135 S. Ct. at 1332.

18 See 15 U.S.C.A. §§ 78a et seq.; Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S. Ct. 2869, 2888, 177 L. Ed. 2d 535, 76 Fed. R. Serv. 3d 1330 (2010) ("Section 10(b) [See 15 U.S.C.A. § 78j(b)] reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States.").

19 See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374, 78 Fed. R. Serv. 3d 1460 (2011) (in 5-4 decision authored by Justice Scalia, Supreme Court held that putative employment discrimination class action involving 1.6 million women failed to satisfy commonality requirements of Fed. R. Civ. P. 23); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) (in 5-4 decision authored by Justice Scalia, Supreme Court held that Federal Arbitration Act preempts state laws barring class action waivers in consumer arbitration agreements); American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 186 L. Ed. 2d 417 (2013) (in 5-3 decision authored by Justice Scalia, Court upheld contractual waiver of class arbitration, even where cost of individual claims exceeds potential recovery).

20 See Dow Chemical Co. Form 8-K dated Feb. 26, 2016 ("Growing political uncertainties due to recent events within the Supreme Court and increased likelihood for unfavorable outcomes for business involved in class action suits have changed Dow's risk assessment of the situation.").

21 See Daines and Koumrian, Shareholder Litigation Involving Mergers and Acquisitions (2013), available at https://www.cornerstone.com/GetAttachment/9d8fd78f-7807-485a-a8fc-4ec4182dedd6/2012-Shareholder-Litigation-Involving-M-and-A.pdf.

22 See Daines and Koumrian, Shareholder Litigation Involving Mergers and Acquisitions (2013), available at https://www.cornerstone.com/GetAttachment/9d8fd78f-7807-485a-a8fc-4ec4182dedd6/2012-Shareholder-Litigation-Involving-M-and-A.pdf.

23 See Krishman, Masulis, Thomas, and Thompson, Litigation in Mergers and Acquisitions (2011), at 53.

24 See, e.g., Jill E. Fisch et al., Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform, 93 Tex. L. Rev. 557 (2015); U.S. Chamber Institute for Legal Reform, The Trial Lawyers' New Merger Tax (2012).

25 Acevedo v. Aeroflex Holding Corp., C.A. No. 7930-VCL (Del. Ch. Jul. 8, 2015) (Transcript), at 64-65. available at http://blogs.reuters.com/alison-frankel/files/2015/07/.

26 Acevedo v. Aeroflex Holding Corp., C.A. No. 7930-VCL (Del. Ch. Jul. 8, 2015) (Transcript), at 67. available at http://blogs.reuters.com/alison-frankel/files/2015/07/.

27 In re Intermune, Inc., C.A. 10086-VCN (Del. Ch. Jul. 8, 2015) (Transcript). available at http://blogs.reuters.com/alison-frankel/files/2015/09/intermune-settlementhearingtranscript.pdf at 32.

28 In re Riverbed Technology, Inc. Stockholders Litigation, 2015 WL 5458041 (Del. Ch. 2015), judgment entered, 2015 WL 5471241 (Del. Ch. 2015).

29 In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016).

30 In re Trulia, Inc., 129 A.3d at 898.

31 Matthew D. Cain & Steven Davidoff Solomon, Takeover Litigation in 2015 (Jan. 14, 2016).

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