Securities Law Alert

Securities Law Alert In This Edition: • Supreme Court: Federal Courts Have Exclusive Jurisdiction Over Suits “Brought to Enforce” the Securities Exchange Act • Second Circuit: Breach of Contract Can Only Serve as the Basis for a Fraud Claim If There Is Proof of Fraudulent Intent at the Time of Contract Execution • Second Circuit: Criminal Convictions Under Section 206 of the Investment Advisers Act Do Not Require Proof of Intent to Harm • Sixth Circuit: American Pipe Tolling Does Not Apply to Statutes of Repose for Securities Fraud Claims • Southern District of New York: Court Dismisses Securities Fraud Action Against Weight Watchers for Failure to Allege Misleading Opinions Under the Omnicare Standard • Delaware Supreme Court: When Transactions Are Approved by a Fully Informed Majority of Disinterested Stockholders, the Business Judgment Rule Applies and Plaintiffs’ Claims Against Disinterested Directors Must Be Dismissed Absent a Showing of Waste • New York Court of Appeals: Adopting Delaware’s MFW Standard, Court Holds Business Judgment Rule Applies to Going-Private Mergers Conditioned on Independent Committee Approval and the Informed Voluntary Vote of a Majority of Minority Stockholders May 2016 Supreme Court: Federal 28 U.S.C. § 1331, the general federal question statute.1 Merrill Lynch, Pierce, Fenner & Courts Have Exclusive Smith v. Manning, 2016 WL 2842450 (2016) Jurisdiction Over Suits (Kagan, J.) (Merrill Lynch II). Simpson Thacher “Brought to Enforce” the is a “universally well- Securities Exchange Act Background regarded firm” with At issue before the Supreme Court was a a “securities litigation Section 27 of the Securities Exchange Act suit brought by several former shareholders practice [that] covers the confers federal district courts with exclusive of Escala Group alleging Merrill Lynch and whole waterfront.” jurisdiction over all suits “brought to enforce a number of other financial institutions –The Legal 500 any liability or duty created by [the Exchange had devalued Escala stock through “naked” United States 2015 Act] or the rules and regulations thereunder.” short sales. In a standard short sale, “a On May 16, 2016, the Supreme Court held person borrows stock from a broker, sells “the jurisdictional test established by [Section 27] is the same as the one used to decide if a 1. Section 1331 provides federal district courts with “original cases ‘arises under’ a federal law” pursuant to jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Simpson Thacher & Bartlett LLP 1 it to a buyer on the open market, and later Supreme Court Holds Section 27 purchases the same number of shares to Provides for Exclusive Federal return to the broker.” The short seller profits Jurisdiction of Suits “Arising if the stock price declines between the sale Under” the Exchange Act Within and the repurchase. In a “naked” short sale, the Meaning of the General Federal on the other hand, the short seller does not Question Statute actually borrow or otherwise obtain the stock, and thus “never delivers the promised shares Agreeing with the Third Circuit’s analysis, to the buyer.” The SEC “regulates such short the Supreme Court “read § 27 as conferring sales at the federal level” through Regulation exclusive federal jurisdiction of the same suits SHO, which “prohibits short sellers from as ‘aris[e] under’ the Exchange Act pursuant intentionally failing to deliver securities.” to the general federal question statute.” Merrill Lynch II, 2016 WL 2842450. The Escala plaintiffs brought suit in New Jersey state court claiming defendants’ Section 1331’s “arising under” test provides allegedly naked short sales violated New for exclusive federal jurisdiction when Jersey law. While the complaint “referred (1) “federal law creates the cause of action explicitly” to defendants’ alleged violation asserted[,]” or (2) a state-law claim of Regulation SHO, plaintiffs did not assert “necessarily raise[s] a stated federal issue, any claims under the federal securities laws actually disputed and substantial, which or the SEC’s rules. Merrill Lynch removed a federal forum may entertain without the case to federal court, asserting federal disturbing any congressionally approved jurisdiction under both the general federal balance of federal and state power.” Applying question statute (Section 1331) and Section 27 the second prong of this “arising under” of the Exchange Act. The district court denied test to Section 27, the Supreme Court stated plaintiffs’ motion to remand, but the Third that federal courts would have exclusive Circuit reversed. jurisdiction over “a state law cause of action . ‘brought to enforce’ a duty created by The Third Circuit held Section 1331 “did not the Exchange Act because the claim’s very confer jurisdiction of the suit, because all success depends on giving effect to a federal [plaintiffs’] claims were ‘brought under state requirement.” The Court further stated that a law’ and none ‘necessarily raised’ a federal state-law action “could also fall within issue.” Id. (quoting Manning v. Merrill § 27’s compass” if it “necessarily depends on Lynch, Pierce, Fenner & Smith, 772 F.3d 158 a showing that the defendant breached the (3d Cir. 2014)). The Third Circuit further Exchange Act.” held Section 27 “covers only those cases involving the Exchange Act that would satisfy The Supreme Court rejected Merrill Lynch’s the ‘arising under’ test of the federal question contention that Section 27 should be read statute.” Finding no federal jurisdiction under expansively to cover state law actions that either Section 27 or Section 1331, the Third explicitly or implicitly reference Exchange Circuit remanded plaintiffs’ case to New Act violations. The Court found Section 27 Jersey state court. “confers federal jurisdiction when an action is commenced in order to give effect to Merrill Lynch petitioned the Supreme Court an Exchange Act requirement” but “stops for certiorari. On June 30, 2015, the Court short of embracing any complaint that granted certiorari to address the question happens to mention a duty established by the of whether Section 27 “provides federal Exchange Act.” jurisdiction over state-law claims seeking to establish liability based on violations of the [Exchange Act] or its regulations or seeking Supreme Court Holds Section 1331’s to enforce duties created by the [Exchange “Arising Under” Test Applies to Act] or its regulations.” Petition for Certiorari, Section 27 Even Though the Two Merrill Lynch, Pierce, Fenner & Smith v. Provisions Use Different Statutory Manning, No. 14-1132 (U.S. March 17, 2015). Language The Supreme Court acknowledged that the general federal question statute refers to cases “arising under” federal law, while Section 27 addresses cases “brought to enforce” 2 duties or liabilities under the Exchange state-law securities actions, which predictably Act. However, the Court found “the test for raise issues coinciding, overlapping, or § 1331 jurisdiction is not grounded in that intersecting with those under the [Exchange provision’s particular phrasing.” Because Act] itself.” the “arising under” test “does not turn on § 1331’s text,” the Court determined “there is In cases like the one before it, the Court found nothing remarkable” in applying the test to it “hardly surprising” that plaintiffs “alleging “a differently worded statutory provision.” short sales in violation of state securities law . might say the defendant previously The Court rejected Merrill Lynch’s contention breached a federal prohibition of similar that Congress’s use of the phrase “brought conduct.” The Court determined that “it is less to enforce” in Section 27 evinced an intent troubling for a state court to consider such to depart from Section 1331’s “arising an issue than to lose all ability to adjudicate a under” test. The Court explained that suit raising only state-law causes of action.” “caselaw construing § 1331 was for many decades—including when the Exchange The Court held the case before it did not Act passed—highly ‘unruly.’” “Against that “arise under” the Exchange Act within the muddled backdrop,” the Court found it meaning of Section 27, and affirmed the Third “impossible to infer that Congress, in enacting Circuit’s decision remanding the action to § 27, wished to depart from what we now New Jersey state court. understand as the ‘arising under’ standard.” Justices Thomas and Sotomayor, Supreme Court Finds Applying the Concurring, Express Their View “Arising Under” Jurisdictional Test That the “Arising Under” Test to Section 27 Gives Appropriate Does Not Apply to Section 27 Due Deference to State Courts In a concurring opinion joined by Justice In addition to the administrative simplicity of Sotomayor, Justice Thomas expressed his applying Section 1331’s “arising under” test view that Section 27 “does not use the phrase to Section 27, the Court found this approach ‘arising under’ or provide a sound basis “gives due deference to the important role of for adopting the arising-under standard.” state courts in our federal system.” The Court Justice Thomas underscored that Section 27 explained that “when a statute mandates, instead provides federal jurisdiction where rather than permits, federal jurisdiction— a suit is “‘brought to enforce’ Exchange thus depriving state courts of all ability to Act requirements.” He stated that Section adjudicate certain claims—[the Court’s] 27 “establishes a straightforward test: If a reluctance to endorse ‘broad reading[s]’ . complaint

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