Sunday, September 30, 2012
The U.S. Attorney in Milwaukee says he's considering looking into a possible pattern of civil rights abuses by the Milwaukee Police Department. A video shows an African-American man in police custody pleading for help, and police scolding him. The man later died.
Saturday, September 29, 2012
Little did I appreciate, back then, how mystical that language would be. At A Public Defender, Gideon writes about the Connecticut Supreme Court's decision in State v. Ward.
The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.
Twenty years is not only a long time, but well beyond the statute of limitations in most states. Most, but apparently not all. Connecticut has a tolling provision that provides that the statute doesn't run during the period that a person "has fled from and resided out of this state." "So what," you say. The defendant never "fled" from arrest and prosecution." Ah, that's because you don't have the Connecticut edition of the law dictionary.
To non-lawyers, fled means, well, fled.
The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution.
But to the erudite Yankee judge, it means something entirely different.
We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.
See how that works? Since the untried, unconvicted defendant should have known that he was guilty of a crime, the court can impute motive to his leaving the state to go home, impose a "reason to believe that an investigation may ensure as the result of his actions," and convert his returning to his home in Massachusetts into fleeing the non-existent investigation that may ensue in Connecticut. In other words, he fled, even though he didn't.
And then there's the Kentucky version of the law dictionary, as related by Kevin Underhill at Lowering the Bar.
First, the facts. WKYT reported on Monday that a 55-year-old Jessamine County man had been cited for riding while intoxicated. The man said he was trail-riding with some friends and had stopped to have something to eat "when the deputy arrived and told me to get off my horse." He explained that he is severely diabetic and hadn't eaten, and that is why he staggered after dismounting, not because he was intoxicated.
Certainly a viable explanation, but for the fact that "his blood alcohol level was twice the legal limit, that he was found to be carrying rolling papers and a bag of marijuana, and that his saddle bags contained "several beers and a mason jar which he identified as 'moonshine.'" Remember, this is Kentucky.
As it turns out, Kentucky has a law prohibiting "[o]perating a vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited." So what exactly is "a vehicle not a motor vehicle?" Big Wheel? Check. Razor scooter? Absolutely. Law mower? Why even ask. But horse?
A horse is an animal. A horse isn't operated, but ridden. If one's driving ability is impaired, so what? As every horseback rider, knows, the horse knows the way back to the barn. And if you leave the door open, the horse can even "drive" himself. Do you know any Big Wheels that can do that? I didn't think so.
Yet, the language of Kentucky law prevails.
All very interesting, said no one, but aren't there often statutes that define certain legal terms? Yes, and there's one here. And sadly for Rooster Cogburn, it defines "vehicle" as including "All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth.…" So while I still like my "animal is not a vehicle" argument, Kentucky has precluded it.
While they just could have prohibited drunk horseback riding, the inclusion of the phrase "all agencies" seems to cover a horse, not to mention piggyback rides from a really special agent of the DEA. Almost interestingly, Lawprof Dave Hoffman at Concurring Opinions picks up on Kevin's post to suggest that this statutory interpretation would make a good law school exercise.
Seems like a good example to use in a class on statutory interpretation. Isn’t the obvious question what an “agency” is for the purposes of Kentucky law?
Or maybe a better, though less obvious to a scholar, question would be why can't legislators write laws that say what they mean? In the alternative, another question might be why shouldn't judges refuse to play along with laws that require contorted definitions in order to make sure the state always wins?
Of course, if they taught law students to use words with actual meanings, there would be no need for Black's Law Dictionary and Bryan Garner would have to find a real job, like writing fiction books.
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First Circuit Upholds Dismissal of Securities Fraud Action Based Upon Immateriality of Allegedly Omitted Information
In In re Boston Scientific Corp. Securities Litigation, 2012 WL 2849660 (1st Cir. July 12, 2012), the United States Court of Appeals for the First Circuit affirmed the dismissal of a securities class action lawsuit against Boston Scientific Corporation (the “BSC”). The Court held that the alleged misstatements or omissions were not sufficiently material to support a claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), and that the complaint’s allegations failed to meet the heightened requirements for pleading scienter under the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4 (“Reform Act”). In so holding, the First Circuit reconfirmed that the federal securities laws do not impose an affirmative duty on management to disclose all information that might affect the price of a company’s stock.
BSC manufactures and distributes medical devices. In August 2009, it was alerted to possible compliance violations by its Cardiac Rhythm Management (“CRM”) sales team. BSC initiated an internal investigation and decided to terminate ten CRM sales persons for violations of the company’s code of ethics. This investigation coincided with a subpoena from the U.S. Department of Health and Human Services, received in September 2009, requesting information regarding certain donations to charities made by the CRM group. BSC publicly disclosed the subpoena in November 2009, but did not disclose the dismissals until February 2010 due to the ongoing internal investigation. During this time, BSC continued to make allegedly optimistic statements about earnings and future sales while the firing and subsequent hiring by a competing company of the CRM sales employees, purportedly led to an estimated $100 million in lost revenue and a ten percent drop in the Company’s stock price.
In April 2010, a putative class of BSC investors filed suit in the United States District Court for the District of Massachusetts charging securities fraud in violation of Sections 10(b) and 20(a) of the Exchange Act. Plaintiffs alleged that, by knowingly making misleading statements or omissions regarding the CRM sales team, BSC executives caused the class members to purchase BSC stock at an artificially inflated rate. The district court dismissed the action, holding that none of the statements made in 2009 were materially false or misleading, while the allegations of scienter as to the remaining 2010 statement were inadequate.
The First Circuit affirmed. The Court held that all the alleged misleading statements made in 2009 were immaterial as a matter of law, as a reasonable investor would not have found that the statements “significantly altered the total mix of information made available.” The Court explained that the standard for materiality of omissions does not require companies to immediately disclose all information with the potential to affect stock price at a later time. Such a standard would impose an overwhelming burden on management and a potential competitive disadvantage to the company and its shareholders. Instead, when information merely creates the possibility that an event affecting the company will later occur, materiality will depend upon “a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” The Court went on to examine each of the alleged misrepresentations in turn, finding that the outcome of the investigation was uncertain at the time of each statement made in 2009, whether because the investigation was still ongoing, the decision to fire employees had not yet been made or only a fraction of the firings had occurred. More generally, the Court noted that “the possible or imminent discharge of a tiny fraction of sales personnel for a single line of products remains of minimal expected consequence for a company with global operations and 25,000 employees.”
The Court did find as plausibly material BSC’s failure to disclose the hiring of the fired employees by a competitor in January 2010. The Court held, however, that the complaint did not contain sufficient particularized allegations giving rise to a strong inference that the omission was made with scienter, i.e., an intent to mislead investors or reckless disregard that the omission presented a high risk of misleading investors. Specifically, plaintiffs failed to plead facts to provide a clear indication that when the BSC officer spoke favorably about the company’s sales force in January 2010, he was either dishonest or reckless in not mentioning the salespeople hired by BSC’s competitor. The Court noted further that the omitted information was not “of such powerful importance that a wrongful intent can be reasonably inferred,” given that the salespeople fired were a small percentage of the CRM sales force and an even smaller percentage of the overall sales force at the time the statement was made.
There are three main “take aways” from this decision. First, it confirms that Section 10(b) does not impose a general duty on management to disclose publicly all material information that might affect the price of a company’s stock. Second, it illustrates that in appropriate circumstances, courts will rule on the facial immateriality of allegedly omitted information at the pleadings stage. Third, it reflects that the relative immateriality of allegedly omitted information can bear on the strength of an inference of defendants’ scienter.
Friday, September 28, 2012
Judges Steven E. Drange and Paul A. Nelson retired. One seat will be chambered in Litchfield, the other in Montevideo.
The finalists are:
Stephanie L. Beckman serves as the Meeker County Attorney where she is responsible for the civil work and criminal prosecutions. She previously worked as an Assistant Stearns County Attorney in their civil division. She is a guardian and trustee for Developmentally Delayed Adult and is an executive board member of the Minnesota Alliance on Crime.
Rodney C. Hanson is a partner with Anderson, Larson, Hanson & Saunders P.L.L.P. where he primarily practices in civil litigation. He has maintained a local practice in Willmar since 1985 and is a qualified neutral and arbitrator for the American Arbitration Association.
Keith Helgeson serves as the Yellow Medicine County Attorney where he provides legal counsel to all county departments. He previously served as Assistant Yellow Medicine County Attorney and was a Board of Directors member of the Western Minnesota Legal Services Corporation.
Thomas W. Van Hon maintains a general law practice where he assists individuals and businesses with civil matters and criminal defense. He also serves as the city attorney for Fairfax, and is an Assistant Public Defender for the Minnesota Board of Public Defense.
The Eighth Judicial District consists of Big Stone, Chippewa, Grant, Kandiyohi, Lac Qui Parle, Meeker, Pope, Renville, Stevens, Swift, Traverse, Wilkin and Yellow Medicine Counties.
The US District Court for the District of Columbia has ruled that the National Labor Relations Board's December 22, 2011 rule amending its election procedures is invalid because the Board did not satisfy the statutory quorum requirement in adopting the rule.
Chamber of Commerce v. NLRB (Dist DC 05/14/2012)
Two of the Board's three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote.
As the court put it,
"The NLRB's claim that Hayes was part of the quorum that adopted the final rule, then, is based only on the fact that he was a member of the Board at the time the rule was circulated and thus was sent a notification that it had been called for a vote."
"Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court's decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle."
Arlington family lawyer Betty A. Thompson died Monday at the age of 88.
McLean lawyer Joseph A. Condo, another leading divorce lawyer, confirmed Thompson’s death Tuesday. His announcement of the death on his Facebook page brought accolades from other Northern Virginia lawyers.
Ms. Thompson was recognized by the General Assembly in 2010 for more than 60 years of service to her community and the legal profession. Colleagues describe her as a trailblazer and advocate for the family law bar.
Ms. Thompson was the first woman in the U.S. to be invited to join the International Academy of Trial lawyers in 1983. At that point, she already had been practicing for 30 years.
Her skills and dedication were recognized by the Southern Trial Lawyers Association, the Virginia Trial Lawyers Association and the Arlington County Bar Foundation. She held leadership roles with the Virginia State Bar, the Arlington County Bar Association, the Virginia Bar Association, the Northern Virginia Trial Lawyers Association, and the International Academy of Matrimonial Lawyers. She was a member of the Virginia Family Law Coalition.
“To call her a giant in the profession doesn’t even come close,” said Condo on his Facebook page. “She was a loyal and devoted friend to many, and a mentor to countless others, who stood on her shoulders in elevating respect and recognition for the family law bar.”
“She was trailblazer in our community. Her loss leaves a huge hole,” posted Del. Scott A. Surovell of Mount Vernon, another family lawyer.
“I always learned from her in cases we had, and she was always the most civil opposing counsel I’ve dealt with,” wrote David M. Levy on the Condo Facebook page. “And her sense of style was only exceeded by her enjoyment of life; she could cut a rug on the dance floor! She will be sorely missed,” Levy said.
Thursday, September 27, 2012
The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)
This is a remarkable decision for two reasons.
First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.
Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.
The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.
The US Supreme Court held (7-2) that
"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.
Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."
Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.
NLRB Member Terence F. Flynn submitted his resignation to the President and to NLRB Chairman Mark Gaston Pearce on May 26.
His resignation is effective July 24, 2012. He has immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB.
The NLRB’s Inspector General recently issued two reports on allegations of improper conduct by Member Flynn during the period when he was serving as a Chief Counsel to Member Peter Schaumber.
Flynn was sworn in as a Board Member on January 9, 2012, following a recess appointment by the President.
Flynn's resignation leaves the Board with four Members - three Democrats and one Republican.
A group of female managers who alleged pay discrimination by defendant Dollar Tree Stores Inc. could not save their suit with a claim that their request to amend their complaint tolled the limitations period to file a Title VII claim.
Last week the 4th U.S. Circuit Court of Appeals said the managers missed the 90-day limitation period for filing a Title VII suit after receipt of a right-to-sue letter.
Thirty-four named plaintiffs sued in Alabama federal court in 2008, claiming Dollar Tree paid women less than their male counterparts. When they filed suit, 31 of the plaintiffs had charges pending with the EEOC, and they received right-to-sue letters between Nov. 6, 2008, and April 24, 2009. When the plaintiffs asked to amend their suit 90 days after the first right-to-sue letters were mailed, Dollar Tree objected and argued Virginia was the proper venue for the Title VII claims the plaintiff wanted to add.
On Sept. 30, 2009, the Alabama district court denied the plaintiffs’ first motion to amend as moot and their second motion to amend as futile because of improper venue. The plaintiffs then filed a new Title VII complaint in Norfolk federal court, which the district court dismissed as outside Title VII limitations period.
The managers appealed, arguing their motion for leave to amend equitably tolled the statute of limitations. Equitable tolling did not work in this case, wrote Judge Dennis W. Shedd, as the plaintiffs did not show any “external factors” that hampered their ability to timely file. A panel majority upheld the dismissal.
But the Alabama district judge could not have expected the plaintiffs “would arrive at the Fourth Circuit only to find the courthouse door locked,” said dissenting Judge Andre M. Davis. He also objected to the majority’s characterization of the plaintiffs as failing to take a hint from the Alabama judge about possibly needing to file the Title VII claim where they had proper venue. Davis said the “signaling” by the judge did not have the legal effect of a final decision.
Davis said the majority’s reliance on outside circuit authority compounded the “fundamental injustice.” Denying the plaintiffs their day in court was “unconscionable,” he concluded. The 27-page unpublished opinion is Angles v. Dollar Tree Stores Inc.
The BBC has issued an apology for revealing details of a private conversation one of its reporters had with Queen Elizabeth II in which she expressed concern over why it was so difficult to arrest Abu Hamza al-Masri. The British radical Muslim cleric just lost his fight against extradition to the U.S., where he faces terrorism charges.
Wednesday, September 26, 2012
California Federal District Court Holds That Section 1312(a) of the California Corporations Code Provides the Exclusive Remedy For Minority Shareholders Seeking to Challenge a Proposed Merger
In Dixon v. Cost Plus, Inc., No. 12-2721, 2012 U.S. Dist. LEXIS 90854 (N.D. Cal. Jun. 27, 2012), the United States District Court for the Northern District of California held that Section 1312(a) of the California Corporations Code precluded plaintiff-minority shareholder’s breach of fiduciary duty claim to the extent that the claim relied upon arguments that a proposed merger price was unfair, or that the process employed by the board of directors was inadequate. Nonetheless, the court noted a “recognized exception” to this bar for challenges based upon “the question of an insufficient vote to authorize a merger or consolidation.” In so holding, the court upheld a “unique” California statute which limits the availability of relief for allegations that directors breached their fiduciary obligations in agreeing to merger terms and in the process engaged in self-dealing and other breaches of duty, while also noting an exception to the general bar.
This case centers around a putative class action filed by a minority shareholder of Cost Plus Inc. (“Cost Plus”) in connection with the proposed sale of Cost Plus to Bed Bath & Beyond, Inc. (“BBBY”) (“Merger”). The defendants were Cost Plus, members of the Cost Plus’ board of directors and the Merger Sub and the Parent of BBBY. Plaintiff filed a motion for preliminary injunction to enjoin the tender offer in connection with the Merger. Among other claims, plaintiff argued that the Cost Plus directors breached their fiduciary duty to obtain the best price reasonably available for shareholders in the merger process. Defendants opposed plaintiff’s motion for preliminary injunction, arguing that plaintiff is barred by Section 1312(a) from seeking injunctive relief based upon the “unfair price” and “unfair process” arguments. Specifically, defendants argued that Section 1312(a) provides that an appraisal proceeding is the exclusive remedy for challenges to mergers.
The district court held that California’s “unique” Section 1312(a) limits the availability of relief for allegations of breach of fiduciary duty in mergers. Section 1312(a) provides:
No shareholder of a corporation who has a right under this chapter to demand payment of cash for the shares held by the shareholder shall have any right at law or in equity to attack the validity of the reorganization or short-form merger, or to have the reorganization or short-form merger set aside or rescinded, except in an action to test whether the number of shares required to authorize or approve the reorganization have been legally voted in favor thereof.
The court held that the California Supreme Court had already concluded that Section 1312(a) “acts as a bar” to shareholder suits challenging a merger where the “plaintiff was aware of all the facts leading to his cause of action for alleged misconduct in connection with the terms of the merger prior to the time the merger was consummated but deliberately opted to sue for damages instead of seeking appraisal.” Steinberg v. Amplica, Inc., 42 Cal. 3d 1198, 1214 (1986). Thus, the district court held that plaintiff was barred by Section 1312(a) from seeking monetary damages for breaches of fiduciary duty and fraud in the course of a merger.
Plaintiff also alleged that Cost Plus and the individual defendants violated Section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b), and the Williams Act (Sections 14(d)(4) and 14(e) of the 1934 Act, 15 U.S.C. § 78n(d)(4) and (e)), by omitting material facts from the Schedule 14D-9 Solicitation/Recommendation Statement Cost Plus filed with the Securities & Exchange Commission in connection with the Merger. The District Court held although Section 1312(a) generally bars attempts to enjoin proposed mergers by minority shareholders, there is a “recognized exception” to this bar for challenges based upon “the question of an insufficient vote to authorize a merger or consolidation.” Thus, challenges related to sufficient disclosures made during the course of a proxy vote may be exempted from the remedial bar of Section 1312(a). Nonetheless, the district court did not make a final determination regarding whether plaintiff’s disclosure claim was barred by Section 1312(a) because, even if it were not barred, plaintiff failed to show in her preliminary injunction motion that she was likely to succeed on the merits of her disclosure claim.
This decision recognized and reiterated California’s unique statute which greatly limits a minority shareholder’s remedy in seeking to challenge a proposed merger of a California corporation.
• The Legal Times 150
• The Influence 50
• The Hill Hot List
Tuesday, September 25, 2012
The National Labor Relations Board is inviting briefs from interested parties on the question of whether university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managers.
The case is Point Park University (06-RC-012276). [Case documents] At this Pittsburgh-based university, faculty members petitioned for an election and voted in favor of representation by the Communications Workers of America, Local 38061. However, the university challenged the decision to hold the election, claiming that the faculty members were managers and therefore ineligible for union representation.
The case ultimately was presented to the U.S. Court of Appeals for the D.C. Circuit, which remanded it to the Board for a fuller explanation of its original conclusion that the faculty’s role at the university is not managerial. Specifically, the court asked the Board to identify which of the factors set forth by the Supreme Court in its 1980 decision NLRB v. Yeshiva University are most significant in deciding whether faculty members are statutory employees or managers.
After a new decision by an NLRB Regional Director again concluded that the Point Park faculty members were statutory employees, the Board granted the University’s request to take up the issue once more.
To aid the Board in addressing the matters raised in the court’s remand, the Board has invited briefs. In its Notice and Invitation to File Briefs, the Board listed eight questions that the briefs should address. and invited submissions of empirical and practical evidence. Briefs should be filed with the Board on or before July 6, 2012.
Recently, the Minnesota State Bar Association polled members who were most likely to practice in front of the appellate courts and were “the most knowledgeable” about the candidates in the state’s three contested judicial elections.
The incumbents cruised.
- Incumbent Lorie Gildea received 548 votes; Challenger Dan Griffith received 46.
- Incumbent Barry Anderson received 496 votes; Challenger Dean Barkley received 99.
- Incumbent David Stras received 474 votes; Challenger Tim Tingelstad received 103.
The online poll was voluntary and confidential. It was conducted from Aug. 20 through Sept. 3. A total of 1,874 members were asked to vote and just under a third responded.
The MSBA says the poll is not an endorsement, but an effort to make information available to voters. For more information on the poll, head here.
Protesters in the Middle East and North Africa have demanded an apology from the U.S. government over a video that denigrates the Prophet Muhammad. While even highly offensive speech is protected by U.S. law, that level of protection is quite unique, even among many Western countries.
Monday, September 24, 2012
On Wednesday a government watchdog issued a report finding widespread failures with the government's "Fast and Furious" gun trafficking operation. On Thursday, the watchdog at the Justice Department, Inspector General Michael Horowitz, told a House panel that federal agents and prosecutors failed to protect public safety — and their bosses didn't pay enough attention.
Roanoke Circuit Judge Jonathan M. Apgar has announced he will retire in the spring.
In a letter to Virginia Chief Justice Cynthia D. Kinser, Apgar said he will retire effective April 1, at the end of his current term.
Formerly in private practice in Roanoke, Apgar was elected by the General Assembly to the circuit bench in 1997.
“Being a jurist in the Commonwealth of Virginia has been my most earnest aspiration since 1975, when I was a law clerk to the Hon. William E. Spain, Judge of the Circuit Court for the City of Richmond, Division II,” Apgar wrote in his letter.
On the bench, Apgar gained recognition for his efforts with Roanoke’s drug court program, the first in Virginia. The judge helped produce the award-winning video about the program, “The Arrest is Only the Beginning: How Virginia Drug Courts Succeed.”
Apgar, 61, said after 16 years on the bench, “it just seemed like a good time to move on to other things.” Apgar noted he has two grandchildren.
Apgar said he hopes to continue to serve on the bench as a retired judge.
Sunday, September 23, 2012
Eleventh Circuit Reverses In Part Securities Fraud Judgment Against Clearing Broker in an Action Brought by the SEC
In Securities & Exchange Commission v. Goble, 2012 WL 1918819 (11th Cir. May 29, 2012), the United States Court of Appeals for the Eleventh Circuit held that the recording of a sham transaction in the corporate books did not constitute “securities fraud” in violation of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), and Securities & Exchange Commission (“SEC”) Rule 10b-5, 17 C.F.R. § 240.10b-5, because “a misrepresentation that would only influence an individual’s choice of broker-dealers cannot form the basis for § 10(b) securities fraud liability.” In so holding, the Eleventh Circuit declined “the SEC’s invitation to expand [the] definition of materiality” to capture the misrepresentation.
Richard Goble founded and controlled North American Clearing, Inc. (“North American”), a clearing broker for about forty small brokerage firms which cleared transactions for more than 10,000 customer accounts valued at more than $500 million. During late 2007 and early 2008, North American faced declining revenues, and allegedly struggled to meet its operating expenses and make required contributions to its cash reserve account as required by SEC regulations. Finally, in May 2008, Goble directed the CFO of North American to record a sham transaction — a $5 million money market purchase — to make it appear that North American could withdraw $3.4 million from its cash reserve account. Financial Industry Regulatory Authority, Inc. examiners discovered a discrepancy created by the sham money market purchase and demanded an explanation. An SEC enforcement action followed, charging that North American violated the Customer Protection Rule under Section 15(c)(3) of the Exchange Act, 15 U.S.C. § 78o(c)(3), codified in SEC Rule 15c3-3, 17 C.F.R. § 240.15c3-3, and the Exchange Act’s books and records requirements under Section 17(a) of the Exchange Act, 15 U.S.C. § 78q(a), codified in SEC Rule 17a-3, 17 C.F.R. § 240.17a-3. The SEC also charged Goble with violating Rule 10b-5 (in addition to aiding and abetting the firm’s alleged securities law violations).
The SEC settled with North American, but not Goble personally. After trial, the United States District Court for the Middle District of Florida held that Goble’s actions concerning the sham money market transaction violated Section 10(b) and Rule 10b-5 (in addition to aiding and abetting the firm’s violations). The district court enjoined Goble from future violations of the securities laws and permanently restrained him from seeking a securities license or engaging in the securities business.
On appeal, the Eleventh Circuit reversed the district court’s judgment on the Section 10(b) count, upheld the judgment on the aiding and abetting count and remanded for reconsideration of the injunctive relief and the bar.
The Eleventh Circuit “easily dispatched” the SEC’s allegation that Goble’s recording of a sham transaction was a “material misrepresentation” under the Exchange Act. The Court held that the materiality test focuses on whether a reasonable person would attach “importance” to the fact misrepresented in determining a “course of action.” The Eleventh Circuited noted that it understood this “course of action” to mean an “investment decision — not an individual’s choice of broker-dealers.” Thus, “a misrepresentation that would only influence an individual’s choice of broker-dealers cannot form the basis for a §10(b) securities fraud liability.” The Eleventh Circuit also held that even if Goble had made a “material misrepresentation,” that misrepresentation was not made “in connection with the purchase or sale of securities,” even though it assumed, without deciding, that the money market fund was a security. The Eleventh Circuit also noted that even though the United States Supreme Court has instructed that Section 10(b) be construed “flexibly to effectuate its remedial purposes” (SEC v. Zandford , 535 U.S. 813, 819, (2002)), Goble did not engage in an actual “purchase” of a security for purposes of Section 10(b). Since the only “purchase” was a sham transaction, it was neither a “purchase” nor “the type of fraudulent behavior which was meant to be forbidden by the statute and the rule.”
This decision reflects than an investor’s choice of broker-dealer is not “material” because it does not relate to an “investment decision.” In so holding, the Eleventh Circuit constricted the reach of Section 10(b) of the Exchange Act and tightened the standards for issuing an injunction, precluding “obey the law” orders which have long been a staple of SEC enforcement.
Conventional wisdom says the campaign season in Minnesota heats up after Labor Day. And though judicial are considered “down ballot” and draw nowhere near as much attention from voters as the Presidential Election and the two constitutional amendments so far, there are a few signs of life.
The Hennepin County Bar Association has published a candidate guide for the two contested judicial races in the Fourth District (Hennepin County.)
The guide is available here at the HCBA website.
Marc Berris and Lois Conroy are running for an open seat and so are Elizabeth Cutter and Steve Antolak.
Each candidate was asked the same two questions:
Why do you want to be a Hennepin County Judge? And, why are you qualified to be a Hennepin County Judge?
The HCBA is also doing an online poll for members to vote for their favored candidate. The poll runs through tomorrow.
The Dakota Bar Association is also hosting a candidate forum for the two contested races in the First Judicial District tomorrow night. Judge Kathryn Messerich and Bruce Gravely oppose each other. Judge Diane Hanson and Michael L. Larson oppose each other. All four candidates have been invited to attend the forum.
It starts at 5:15 p.m. with a CLE seminar. The forum starts at 7 p.m. The event will be held at the Old Chicago Restaurant, 14998 Glazier Ave., Apple Valley, MN 55124.