Insider Trading & Disclosureupdate

October 2018 Volume 4 INSIDER TRADING & DISCLOSURE UPDATE In this Issue: Editors’ Remarks Editors’ Remarks 01 Welcome to the latest issue of the Insider Trading & Disclosure Update, Debevoise’s periodic update focusing on recent legal, compliance and Case Law & Market Updates enforcement developments in the areas of insider trading, the management of Cyan, Inc. v. Beaver Cty. Employees Ret. Fund: Supreme Court’s material nonpublic information and disclosure-based matters. Decision Raises Spectre of More Item 303 Disclosure Claims in In this Update, we highlight the potentially significant implications that the State Court 01 Supreme Court’s Cyan decision could have on securities fraud class actions SEC Spotlight on Cybersecurity 07 United States v. Martoma: Second brought under the Securities Act of 1933. Also figuring prominently in this Circuit Declines Rehearing in Update is the SEC’s continuing focus on cybersecurity and a review of the Case Analyzing Salman’s Scope 09 SEC Enforcement Co-Director continuing fallout from the Supreme Court’s decision in the Salman insider Emphasizes Nonmonetary Relief trading case. in SEC Actions 12 Update on Morrison: Building We hope that you find this Update useful and informative, and we look Section 10(b)’s Border Wall 13 forward to bringing you further news and analyses in future issues. Lucia v. SEC: Supreme Court Rejects Constitutionality of SEC ALJs 15 Sincerely, SEC Adopts Amendments to Simplify and Update Disclosure The Editorial Board Requirements 17 Notes 21 Case Law & Market Updates Cyan, Inc. v. Beaver Cty. Employees Ret. Fund: Supreme Court’s Decision Raises Spectre of More Item 303 Disclosure Claims in State Court In one of the most significant securities-related decisions of the last term, the U.S. Supreme Court in Cyan Inc. v. Beaver County Employees Retirement Fund held that state courts have jurisdiction over class actions alleging violations of only the Securities Act of 1933 (the “1933 Act”) and that defendants are not permitted to remove such actions to federal court.1 The Cyan decision resolved a split among federal and state courts over whether the Securities Litigation Uniform Standards Act (“SLUSA”) deprived state courts of jurisdiction over class actions asserting 1933 Act claims. While it is too early Continued on page 2 www.debevoise.com Insider Trading & Disclosure Update 2 October 2018 | Volume 4 Cyan, Inc. v. Beaver Cty. to assess the full ramifications of the applicable only in federal court.4 But Employees Ret. Fund: Cyan decision, many commentators rather than face the new tightened Supreme Court’s Decision have noted that the decision will likely standards for pleading securities fraud Raises Spectre of More Item 303 Disclosure ignite a race to file 1933 Act claims class actions in federal court, plaintiffs Claims in State Court in state courts. As plaintiffs turn to began filing such claims in state court.5 Continued from page 1 potentially more favorable state court In response to this end-run around the venues, it also seems likely that the legislation, Congress enacted SLUSA Cyan decision will embolden them to in 1998. SLUSA’s amendments to the pursue claims premised on Item 303 1933 Act require certain “covered class of SEC Regulation S-K—a trend that actions” alleging state law securities was already evident in federal court claims to be heard and dismissed in litigation. With state courts wading into federal court.6 But federal and state the complex area of disclosure liability, courts had been split for years over the question of whether plaintiffs can whether covered class actions filed in assert claims based on an omission state court that allege only 1933 Act theory for failing to disclose “known claims also must be heard in federal trends and uncertainties” under Item 303 court. will assume even greater significance for Supreme Court’s Cyan Decision defendants. Investors in Cyan, Inc., a Statutory Underpinnings of Cyan telecommunications company, filed a In the wake of the 1929 stock market class action in California state court crash, Congress enacted two laws after the corporation’s stock declined to promote honest practices in the in value.7 Bringing claims only under securities markets: the 1933 Act and the the 1933 Act, the investors alleged that Securities Exchange Act of 1934 (the the corporation’s offering documents “1934 Act”).2 Federal and state courts contained material misrepresentations. have traditionally shared jurisdiction They did not assert any claims based on over 1933 Act claims, but all suits state law.8 brought under the 1934 Act fall within Cyan then moved to dismiss the the exclusive jurisdiction of federal complaint for lack of subject-matter courts.3 In 1995, the Private Securities jurisdiction, arguing that SLUSA Litigation Reform Act (the “PSLRA”) stripped state courts of power to amended both Acts in an effort to adjudicate 1933 Act claims in “covered stymie perceived abuses of the class- class actions.”9 The investors, in action vehicle in securities litigation. turn, argued that SLUSA left intact The PSLRA included both substantive state courts’ jurisdiction over all reforms, applicable in state and federal suits—including “covered class court alike, and procedural reforms, actions”—alleging only 1933 Act claims. Continued on page 3 www.debevoise.com Insider Trading & Disclosure Update 3 October 2018 | Volume 4 Cyan, Inc. v. Beaver Cty. Siding with the investors, the California emphasized, the substantive protections Employees Ret. Fund: Superior Court refused to dismiss the of the PSLRA (such as the safe harbor Supreme Court’s Decision case, and the California Court of Appeals for forward-looking statements) apply Raises Spectre of More Item 303 Disclosure denied review of this decision. The to all claims under both the 1933 and Claims in State Court Supreme Court subsequently granted 1934 Acts.14 Continued from page 2 the corporation’s petition for certiorari.10 Finally, the Court answered a question In a unanimous opinion authored by raised by the federal government as Justice Elena Kagan, the Supreme Court amicus curiae: whether SLUSA enabled held that “SLUSA did nothing to strip defendants to remove 1933 Act class state courts of their long-standing actions from state to federal court for jurisdiction to adjudicate class actions adjudication.15 The government argued alleging only 1933 Act violations.”11 The that § 77p(c) allowed defendants to Court explained that the background remove 1933 Act class actions to federal rule of § 77v(a) gives state courts court so long as they alleged the kinds concurrent jurisdiction over all suits of misconduct listed in § 77p(b).16 But “brought to enforce any liability or duty the Court found that the most natural created by” that statute. Section 77p, reading of § 77p(c) actually refuted the which bars certain securities class government’s view.17 For this reason, the actions based on state law, controls if Court held that SLUSA did not permit there is a conflict between § 77v(a) and defendants to remove class actions § 77p, but § 77p does nothing to limit alleging only 1933 Act claims from state state court jurisdiction over class actions to federal court.18 brought under the 1933 Act, as it “says nothing, and so does nothing, to deprive Consequences of Cyan state courts of jurisdiction over class Plaintiffs may now strategically actions based on federal law.” 12 The Court bring 1933 Act claims against issuers, explained that both the text and context officers, directors, underwriters and of the statute supported its reading of others involved in the securities the provision. offering process in state court, where they can circumvent some of the Under SLUSA, covered securities class PSLRA’s procedural restrictions and actions based on the 1934 Act must still avail themselves of more plaintiff- proceed in federal court.13 Therefore, friendly standards. The most significant plaintiffs bringing claims pursuant procedural difference between to Section 10(b) of the 1934 Act, in federal and state court is the lack of a tandem with Section 10 and 11 claims meaningful motion-to-dismiss process under the 1933 Act, must bring suit in in state court. For example, in many federal court. Whether brought in state state courts, such as in California, the or federal court, the Supreme Court pleading standard for falsity is vastly Continued on page 4 www.debevoise.com Insider Trading & Disclosure Update 4 October 2018 | Volume 4 Cyan, Inc. v. Beaver Cty. lower than the particularity standard have material effects on the registrant’s Employees Ret. Fund: established by Federal Rule of Civil financial conditions or results of Supreme Court’s Decision Procedure 9(b), requiring no more operations.”22 Notably, Item 303 requires Raises Spectre of More Item 303 Disclosure than notice pleading. This means that the registrant to disclose only those Claims in State Court significantly fewer 1933 Act claims trends, events or uncertainties that Continued from page 3 will be dismissed at the pleading it actually knows of when it files the stage. Moreover, state court judges relevant report with the SEC; it is not may lack the expertise of their federal enough that it should have known of the counterparts in handling complex 1933 existing trend, event or uncertainty.23 Act claims. With respect to materiality, “the complaint may not properly be Impacts on Claims Premised on Item dismissed on the ground that the alleged 303 of Regulation S-K misstatements or omissions are not The Cyan decision also may have a material unless they are so obviously particular impact on the increasing unimportant to a reasonable investor that number of 1933 Act claims premised reasonable minds could not differ on the on Item 303 of SEC Regulation S-K. question of their importance.”24 Sections 11 and 12(a)(2) of the 1933 Act Plaintiffs have increasingly brought impose liability on certain participants Section 11 and 12(a)(2) claims under the in a registered securities offering when 1933 Act based on Item 303 obligations the registration statement or prospectus in federal court with mixed results.

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