As Rodney Tonkovic discusses in more detail, the plaintiff in Fried v. Stiefel Labs, 814 F.3d 1288 (11th Cir. 2016), has petitioned the Supreme Court to delineate disclosure duties in the context of trading by private companies.

Richard Fried was the former CFO of Stiefel Labs, which was privately held.  As an employee, he received stock as part of a pension plan.  When he retired, he sold the stock back to Stiefel (I don’t know much about the market for Stiefel stock, but I’m guessing that, since it was privately held, Fried didn’t think he had many alternative options).  Sadly for Fried, shortly after his sale, it was announced that Stiefel was being acquired by GlaxoSmithKline, and that negotiations had been in the works at the time of his sale.  By selling to Steifel instead of waiting for GSK’s acquisition, he missed out on, roughly, an additional $1.62 million.  He sued Stiefel, alleging that Stiefel had been obligated to disclose the negotiations to him at the time of his sale.

This is not something that comes up very often, but the case law that does exist tends to hold that insider trading principles apply both to private…

I attended my first Law and Society meeting this year (made easier by the fact that it was held in New Orleans, my newly-adopted city!)   And as Joan indicated in a prior post, she gave a presentation on her most recent project, tentatively titled “Pillow Talk, The Parent Trap, Sibling Rivalries, Kissing Cousins, and Other Personal Relationships in U.S. Insider Trading Cases.”  And very shortly after she concluded, a news story dropped in my inbox about SEC v. Maciocio, involving two longtime friends charged in an insider trading scheme that lasted for several years. 

The reason the case interests me is that I assume the SEC (and the DOJ in a parallel criminal complaint) are teeing it up in light of the pending Supreme Court case of Salman v. United States. 

According to the SEC’s allegations, Maciocio worked for a pharmaceutical company that engaged in business dealings with several other companies.  Hobson was his longtime childhood friend.  The details of their relationship are described in the SEC’s complaint, including their days of Little League baseball, and daily phone calls and emails.

Hobson, as it turns out, was a securities broker.  So, Maciocio tipped off Hobson…

How much do we trust institutional investors to protect their interests?

Delaware law has gradually been inching toward a recognition that in a stock market dominated by institutional investors, old assumptions – about a dispersed,  uninformed, and rationally passive shareholder base – must give way to a new recognition of shareholder sophistication and incentives.

You can see the tendrils of this growing awareness in, for example, opinions like Corwin v. KKR Fin. Holdings LLC, 125 A.3d 304 (Del. 2015), where the Delaware Supreme Court held that a shareholder vote in favor of a merger would act as a ratification of the directors’ conduct – a ruling that implicitly relied on an expectation of shareholder sophistication.  See id. (“When the real parties in interest—the disinterested equity owners—can easily protect themselves at the ballot box by simply voting no, the utility of a litigation-intrusive standard of review promises more costs to stockholders in the form of litigation rents and inhibitions on risk-taking than it promises in terms of benefits to them.”)  You can see it in then-Vice Chancellor Strine’s opinion in In re Pure Res. S’Holders Litig., 808 A.2d 421 (Del. Ch. 2002), where he held that controlling shareholder tender…

Public companies are required to report certain material events within 4 business days on Form 8-K.  These events include such matters  as the departure of directors or officers, the disposition of assets, or material impairment of assets. 

In their paper Strategic Disclosure Misclassification, Andrew Bird, Stephen A. Karolyi, and Paul Ma find that in their 8-K filings, corporate managers seem to be taking a leaf from Roseanne’s bill paying system:

Specifically, Bird et al. find that companies frequently “misfile” their 8-Ks, categorizing them as miscellaneous “other” rather than properly identifying them in the appropriate category.  “Misfiling” is particularly likely to occur for negative events, and during periods when investor attention is high – suggesting that misfilings are part of a strategic effort to deflect investor attention.  Happily for corporate managers, the strategy is an effective one: misfiled 8-Ks not only receive less traffic, but they also have less stock price impact.

Roseanne would be so proud.

Last week, Chancellor Andre Bouchard dismissed the derivative complaint filed against Walmart concerning the WalMex bribery scandal, on the grounds of issue preclusion:  Earlier, a federal court in Arkansas had dismissed identical claims filed by a different set of plaintiffs. 

The reason that the Arkansas decision came so much earlier than the Delaware decision was, of course, that the Arkansas plaintiffs filed their complaint without first exercising their inspection rights under Section 220.  The Delaware plaintiffs did exercise their rights, as Delaware has repeatedly counseled plaintiffs should do, and fought Walmart for years over it – taking a trip to the Delaware Supreme Court as a result.

Standing alone, then, this case stands for the proposition that Delaware has no way of enforcing its own guidance to plaintiffs that they seek books and records before filing a derivative claim. 

But there’s hope – because this is exactly the kind of destructive competition among plaintiffs’ firms that forum selection bylaws were meant to address.  Had such a bylaw been in place, all of the plaintiffs could have been shunted into a Delaware forum.

Right?

Unfortunately, no.  Because defendants have the freedom to ignore a forum selection bylaw if their interests…

Money Monster, directed by Jodie Foster, is the latest addition to the pop cultural anti-finance zeitgeist.  George Clooney plays – well, Jim Cramer, with Julia Roberts as his long-suffering director.  Their usual television buffoonery is interrupted by a disgruntled investor who lost his life savings by following Clooney’s advice to invest in – well, Knight Capital.  Now he insists on holding Clooney hostage at gunpoint until he can get an explanation for the trading “glitch” that caused his investment to go sour.

Warning:  Below be spoilers, though I’ll try to keep them to a minimum (roughly movie review standards).

The latest example of dramatic institutional failure – that somehow was entirely accidental – comes to us from MetLife.

The story begins with variable annuities, a product that might be suitable if you’re trying to shelter your assets from a lawsuit, but otherwise one whose chief virtue lies in its capacity to serve as a litmus test for the honesty of your broker. 

After the financial crisis, insurance companies decided that their outstanding variable annuities were too good for existing customers, and began offering very high commissions to any brokers who could persuade their clients to exchange an older one for a newer, less generous model.

Enter MetLife.  From 2009 to 2014, MetLife brokers churned $3 billion worth of variable annuities, resulting in $152 million in dealer commissions.  Customers were told that the newer annuity was less expensive or comparable, when in fact, 72% of the time, this was, shall we say, not so much true.   For example, 30% of the replacement applications falsely stated that the new contract was less expensive than the old one.  Applications also failed to disclose benefits and guarantees that the customer would forfeit in making the exchange, understated the value of existing…