Legal Series: International Securities Litigation
More globalized securities markets will offer different and challenging enforcement actions and private damage actions. It is therefore essential that companies and their lawyers should be in the know with respect to the latest strategies available when they are caught up in international securities litigation.
The Knowledge Group has assembled a panel of thought leaders to help companies understand the fundamentals and the recent developments in international securities litigation. In a live two-hour webcast, key experts will offer their substantive viewpoints to help you learn effective ways and means of international securities litigation. A live interaction with the speakers and several role playing scenarios are also included in this event.
Richard Mancino , Partner,
Willkie Farr & Gallagher LLP
- Post-Morrison developments, including what it means to “purchase” or “sell” a security within the United States in off-exchange transactions.
- Other avenues plaintiffs may have to get into U.S. courts and to avoid the reach of Morrison, such as by asserting state common law claims, and possible responses by issuers to such efforts
- Applicability of Morrison to other statutory schemes
Mark Gelowitz, Partner, Litigation,
Osler, Hoskin & Harcourt LLP
- Canadian securities class action environment – statutory and common law claims for misrepresentations affecting primary and secondary market share purchases – “leave to commence” and class certification requirements under Canadian legislation
- Distinctions between Canada and the U.S. in securities class actions – procedural framework – carriage motions to select lead plaintiff – documentary and oral discovery – liability issues on intentional vs. negligent misrepresentation – statutory damages caps
- Class Action Motion to Compel Denied: Franco v. Arakelian Enterprises, Inc., No. B232583 (California Court of Appeal, 11/26/2012)
- Cross-border “copycat” phenomenon – need for coordinated counsel on both sides of the border – avoiding duplication and sychronizing efforts in parallel cases – sequencing issues
Robert Patton, Senior Consultant,
NERA Economic Consulting
- Recent trends in US securities class actions against non-US issuers
- Recent trends in US-Canada cross-border securities class actions
- Time permitting, I will also discuss considerations in calculating damages in cross-border securities class actions, in particular US-Canada cross border cases.
Alexander Reus, Managing Partner,
a. Morrison v. NAB reference (but covered by Richard Mancino)
b. Statistics of lawsuits involving foreign securities in US class actions pre/post NAB (maybe covered by NERA)
c. Vivendi and Alstom decisions on (lack of) res judicata as powerful (but currently underutilized) tool to knock out foreigners from US class actions against US issuers under the requirement that FRCP 23 has to be the superior procedural method to resolve disputes
a. Relevance criteria: recurring problems or high likelihood of securities fraud, volume of trading, number and size of companies and market cap, legal and procedural aspects
b. Common issues: need to be actively involved (opt in), no success fees, high court fees, high adverse party cost risk, no discovery, short SoL
c. Common solutions: funded litigation, adverse party cost insurance, parallel litigation and §1782 access to US discovery in aid of foreign proceeding
a. Netherlands (RDS, Converium, Fortis, etc.)
b. Germany (HRE, Porsche/VW)
c. Japan (Olympus, Toyota, Tepco)
d. UK (RBS, BP, Lloyds)
- Maturation of U.S. securities litigation and restrictive jurisdiction over cases with foreign aspects
- Developing the need for non-U.S. alternatives in relevant countries
- Emerging countries and first experiences with non-U.S. investor protection
Who Should Attend:
- General Counsel
- Business Lawyers
- Senior Managers
Richard Mancino specializes in corporate and commercial litigation, representing US and international clients on a wide variety of matters, including complex insurance and reinsurance disputes, securities litigation, and alter ego and corporate veil litigation. Mr. Mancino was lead counsel for Converium Holding AG (now Scor Holding (Switzerland) AG)) in securities fraud class action litigation in which the district court, in an opinion that presaged the Supreme Court’s decision in Morrison v. National Australian Bank, excluded the claims of most foreign investors because the alleged fraudulent scheme was, according to plaintiffs, masterminded and implemented in Switzerland, not in the United States. (Earlier this year, the Amsterdam Court of Appeal authorized the use of the Dutch collective-settlement statute to settle the claims of Converium’s foreign investors on a classwide, opt-out basis.) Recently, he persuaded the Fourth Circuit Court of Appeals to uphold an order compelling arbitration of international insurance disputes in Sweden and to hold that the McCarran-Ferguson Act does not empower state law to reverse-preempt the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
Richard Mancino specializes in corporate and commercial litigation, representing US and international clients on a wide variety of matters, including …
Mark A. Gelowitz is a partner in the Litigation Department of Osler, Hoskin & Harcourt LLP. He is the Chair of the firm’s National Corporate Governance and Securities Litigation Group and Co-Chair of the firm’s International Commercial Arbitration Group. Mark’s practice covers a wide variety of issues in corporate and commercial law including mergers and acquisitions litigation, directors’ liability, corporate governance and securities, product liability and securities class actions.
Mark completed two judicial clerkships, first with the late Chief Justice E.D. Bayda of the Saskatchewan Court of Appeal in 1986-1987 and subsequently with the late Justice John Sopinka of the Supreme Court of Canada in 1989-1990. He completed the B.C.L. degree at Oxford University in 1989, between his clerking experiences. Mark has had a number of legal publications including a book co-authored with the late Justice Sopinka entitled The Conduct of an Appeal, Third Edition (Butterworths 2012, forthcoming).
Mark A. Gelowitz is a partner in the Litigation Department of Osler, Hoskin & Harcourt LLP. He is the Chair …
Mr. Patton is a Senior Consultant in NERA’s Securities and Finance Practice. He holds a master’s degree from the London School of Economics and a bachelor’s degree from the University of Michigan, and is a Chartered Financial Analyst (CFA) charterholder.
A significant focus of Mr. Patton’s work is consulting on cross-border litigation and disputes. He has performed economic analyses assessing damages and related issues in complex securities and commercial litigation brought in the US and elsewhere involving companies domiciled and/or traded in the United Kingdom as well as Canada, China, France, Italy, Ireland, Kazakhstan, and South Korea. He has testified and submitted affidavit evidence in Ontario Superior Court in a proposed cross-border securities class action against a US issuer.
Mr. Patton has also undertaken examinations of market efficiency, materiality, loss causation, liability, damages, and settlement prediction in numerous securities class actions. His assignments have included cases involving subprime and credit crisis allegations, accounting restatements, insurance-related issues, backdating of employee stock options, public offerings, and mergers and acquisitions, in claims brought by bondholders and options traders as well as by shareholders.
Mr. Patton is a Senior Consultant in NERA’s Securities and Finance Practice. He holds a master’s degree from the London …
Alexander Reus, J.D. (Germany/USA), LL.M. is a Board Certified International Lawyer with German and U.S. law degrees who is licensed as a U.S. attorney-at-law (NY, DC, FL), as a UK solicitor (Law Society of England & Wales) and as a European attorney (Frankfurt Bar Association). He has over 20 years of experience in international litigation and dispute resolution matters on behalf of institutional investors and is the founding partner of DRRT.
Mr. Reus focuses his practice on cross-border investor protection and loss recovery for global institutional investors. As a partner in both small and large international law firms, Mr. Reus has worked on many complex international corporate and litigation matters. Currently he is involved in over 10 multi-billion dollar lawsuits across 4 continents seeking compensation on behalf of institutional investors with over $8 trillion in assets under management.
Mr. Reus has been published widely in Europe, the Middle East and the United States and is a frequent lecturer and speaker on various topics of international law, practice and procedure, relating mostly to investor rights and protection as well as corporate governance in public companies.
Alexander Reus, J.D. (Germany/USA), LL.M. is a Board Certified International Lawyer with German and U.S. law degrees who is licensed …
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About Willkie Farr & Gallagher LLP
Willkie Farr & Gallagher LLP is a leading international law firm that provides strategic legal representation and counsel to market-leading public and private companies worldwide. Founded in 1888, the firm has approximately 600 lawyers based in key financial centers: New York, Washington, Paris, London, Milan, Rome, Frankfurt and Brussels.
About Osler, Hoskin & Harcourt LLP
Osler, Hoskin & Harcourt LLP is a leading business law firm practising nationally and internationally from offices across Canada and in New York. Clients include industry and business leaders in all segments of the market and at various stages in the growth of their businesses.
Osler litigators have extensive experience representing public and private clients of all sizes in corporate governance, mergers and acquisitions and securities matters before the courts and provincial securities commissions. They have been at the forefront of the development of legal principles governing a number of critical aspects of modern corporate law. As a result, they are intimately familiar with the potential risks involved in pursuing a course of action and can advise on the best approach to dealing with a litigious matter.
About NERA Economic Consulting
NERA Economic Consulting (www.nera.com) is a global firm of experts dedicated to applying economic, finance, and quantitative principles to complex business and legal challenges. For over half a century, NERA’s economists have been creating strategies, studies, reports, expert testimony, and policy recommendations for government authorities and the world’s leading law firms and corporations. With its main office in New York City, NERA serves clients from more than 20 offices across North America, Europe, and Asia Pacific.
DRRT is an international law firm and litigation funder, which assists global institutional investors with the recovery of losses resulting from misstatements by public companies. DRRT helps its clients generate “legal alpha” through shareholder litigation in the form of securities (class or private) actions, shareholder derivative suits, appraisal disputes in merger or take-over situations, and other loss recovery methods throughout the world. DRRT has represented or is representing investors in major international securities litigation cases against companies such as Enron, Bank of America, Merck, Citigroup, Olympus, Toyota, Fortis, Vivendi, Royal Dutch Shell, BP, AOL/Time Warner, General Motors, and in connection therewith has recovered over $1 billion.