Securities Law Alert
In This Edition:• Second Circuit: Securities Fraud Claims Predominantly Foreign Where the Transaction Implicated Only
the Interests of Two Foreign Companies and a Foreign Country• Ninth Circuit: Projected Timelines Concerning a New Product Are Forward-Looking Statements• Central District of California: Securities Fraud Claims Dismissed Where Plaintiff Failed to Allege That
Defendants Would or Could Have Known the Extent of the Pandemic• Southern District of New York: Disclosures in Wake of Cyberattack Defeated Securities Fraud Claims• Delaware Supreme Court: Post-Merger Standing Exists if Merger Fairness Is Challenged Due to Failure to
Secure a Pending Derivative Claim’s Value
February 2021

Second Circuit: Securities
Fraud Claims Predominantly
Foreign Where the Transaction
Implicated Only the Interestsof Two Foreign Companies anda Foreign Country“Recognized for its‘world class lawyering,’
Simpson Thacher &Bartlett LLP has a leading
litigation practice withwide-ranging capabilities.”–Legal 500

Simpson Thacher & Bartlett LLP

On January 25, 2021, the Second Circuit
affirmed the dismissal of a securities fraud
lawsuit against a Bermudan holding company
operating out of New York and its controller,
alleging that defendants had misrepresented
the holding company’s fee arrangement
before plaintiff, a Bermudan corporation, hadpurchased shares in the holding company ina private offering. Cavello Bay Reinsurance
v. Shubin Stein, 986 F.3d 161 (2d Cir. 2021)(Jacobs, J.). The Second Circuit held that evenassuming, without deciding, the transaction
was “domestic” under Absolute Activist Value
Master Fund v. Ficeto, 677 F.3d 60 (2d Cir.
2012), the claims were so predominantly
foreign as to be impermissibly extraterritorial
under Parkcentral Global HUB v. Porsche,
763 F.3d 198 (2d Cir. 2014).

Principles Determining theExtraterritorial Reach of
Section 10(b)Plaintiff asserted claims under the Securities
Exchange Act, including for rescission under
Section 29(b) and for securities fraud under
Section 10(b) and Rule 10b-5. Beginning
its extraterritorial analysis, the court stated“Section 10(b) of the Securities Exchange Act
does not apply beyond U.S. borders. But, ina mostly border-less economy, a plaintiff isallowed some room for a foreign dimension
to its claims.” Citing to the Supreme Court’s
bright-line rule in Morrison v. National
Australia Bank, 561 U.S. 247 (2010), thecourt stated that “[u]nless a security islisted on a domestic exchange, a domestictransaction is a necessary element of a
§ 10(b) claim.” However, the court explained“the presence of a domestic transaction
alone cannot satisfy the statute’s geographic
requirements,” and under Parkcentral,“claims must not be so predominantly foreign
as to be impermissibly extraterritorial.”
The court explained that under Morrison,courts are “to use the ‘focus’ of the statute todetermine whether a case involves a domestic

application of § 10(b).” The court continued
that “[t]he focus is upon purchases and salesof securities in the United States, not upon
the place where the deception originated.”
Id. The court noted that the Supreme Court
later clarified in RJR Nabisco v. European
Community, 136 S. Ct. 2090 (2016) that “ifthe conduct relevant to the focus occurredin a foreign country, then the case involves
an impermissible extraterritorial application
regardless of any other conduct that occurredin U.S. territory.” Citing to Second Circuit
precedent, the court stated that, “[p]ut
differently, courts must evaluate whether
the domestic activity involved implicates the‘focus’ of the statute.” The court cautionedthat “even if a transaction occurs in the
United States, the features and incidentsof the transaction may nevertheless be so
foreign that it is not regulated by § 10(b).”For example, “Parkcentral ruled thatthe complaint stated an impermissibly
extraterritorial claim despite the presenceof a domestic transaction.”

Plaintiff Failed to Plead a Domestic
Application of Section 10(b)Applying these principles, the court concluded
that plaintiff “has failed to plead a domestic
application of § 10(b).” The court explainedthat “[t]he claims here are based on a privateagreement for a private offering between
a Bermudan investor [] and a Bermudanissuer [,]” and that plaintiff “purchased
restricted shares in [the holding company]
in a private offering.” Further, the court
continued that “[t]he shares reflect only aninterest in [the holding company], and they
are listed on no U.S. exchange and are nototherwise traded in the United States.”

law by a party that has made the purchasein a way that avoids regulation by theUnited States.” The court pointed out thatplaintiff “provides no reason to think an
SEC registration requirement—contingent
and future—triggers some U.S. interest orother interest that the statute is meant toprotect . . . .” The court observed that plaintiff“seeks access to a domestic forum and judicial
resources; but the transaction is structured to
avoid the bother and expense (and taxation)of U.S. law.” The court concluded that “[t]hetransaction implicates only the interests of
two foreign companies and Bermuda.”

Alleged Contacts With Territoryof the U.S. Did Not Relate to thePurchase and Sale of Securities
The court further deemed that plaintiff’s
allegations against the holding company(that it made the misstatement from New
York; that the funds were to be invested in
U.S. insurance services; that its principal
place of business, CEO, and directors werein New York; and that it was managed by a
U.S. company) were “not enough.” Instead,the court stated that the contacts withthe territory of the U.S. “that matter are
those that relate to the purchase and saleof securities.” Addressing the allegations
that the parties’ communications executing
the agreement were between New Yorkand Bermuda, the court stated that “actsevincing contract formation do not resolve thequestion whether the claims are neverthelessso predominantly foreign.”

The Agreement’s SEC Registration
Requirement Not Enough to Trigger
Interests That Section 10(b) Is
Meant to Protect
The court described the main connection of
the shares to the U.S. as “the subscription
agreement’s restriction clause requiring[plaintiff] to register the shares with the SEC(or meet an exemption) should [plaintiff]wish to resell them.” The court reasoned
that “[w]hile that clause may set up a future
invocation of U.S. law, it operates as amere contractual impediment to resale,conditioning resale on the invocation of U.S.
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Ninth Circuit: Projected
Timelines Concerning a New
Product Are Forward-Looking
Statements
On January 26, 2021, the Ninth Circuit
affirmed the dismissal with prejudice of aputative securities fraud class action alleging
that a car company and two of its officers
misled investors about the company’s
progress in building production capacity for
its first mass-market electric vehicle. Wochos
v. Tesla, 2021 WL 246210 (9th Cir. 2021)(Collins, J.). The court held that none of the
15 statements at issue were actionable as they
were protected as forward-looking statements
under the Private Securities Litigation ReformAct (“PSLRA”), or to the limited extent thatthey were not so protected plaintiffs failed toadequately plead falsity.
Plaintiffs in this case alleged that the company
announced production goals for its new
vehicle for “the end of 2017 that it knew it
would not be able to achieve, and it repeatedly
reaffirmed that it was on track to reach thosetargets, even as the end-of-the-year deadline
drew closer and as delays grew increasingly
significant.”

Unadorned “On Track” Statements
Are Forward-Looking Statements
Discussing the relevant standard, the court
noted that “the PSLRA carves out a safe
harbor for forward-looking statements byadding § 21E to the Securities Exchange Act.”
After reviewing the company’s statements,
the court found that the company’s “goalto produce 5,000 vehicles per week isunquestionably a forward-looking statement
under § 21E, because it is a plan or objectiveof management for future operations, andthis plan or objective relates to the productsof [the company].” The court further foundthat “[the company’s] various statements that
it was on track to achieve this goal and that
there are no issues that would prevent [thecompany] from achieving the goal are likewise
forward-looking statements.” The court
reasoned that “[b]ecause any announced
objective for future operations necessarilyreflects an implicit assertion that the goal isachievable based on current circumstances,
an unadorned statement that a company is on
track to achieve an announced objective, ora simple statement that a company knows of
no issues that would make a goal impossible
to achieve, are merely alternative ways ofdeclaring or reaffirming the objective itself.”
The court pointed out that “[t]he statutory
safe harbor would cease to exist if it could be
defeated simply by showing that a statement
has the sort of features that are inherent inany forward-looking statement.”

Assumptions Underlying or
Relating to a Declared Goal Are
Forward-Looking Statements
The court then explained that the issue “iswhether [p]laintiffs have sufficiently pleaded
that any of the challenged May statements
went beyond the mere declaration of theyear-end goal in a way that include[d]a non-forward-looking statement.” Thecourt then reiterated “that it is not enoughto plead that a challenged statement rests
on subsidiary premises about how various
future events will play out over the timeframe
defined by the forward-looking statement.”
Citing the safe harbor, the court explainedthat “such statements of the assumptions
underlying or relating to a declared objective
are also deemed to be forward-looking
statements.” The court determined that“[t]his reasoning precludes [p]laintiffs’
theory that [the company’s] year-end goal
rested on scheduling assumptions that [thecompany] knew it was unlikely to meet.” Thecourt concluded that “[a]ny such schedule
about how future production would play out
on the way toward the announced goal issimply a set of the assumptions about future
events on which that goal is based.” Thecourt continued, stating that “[l]ike the goal
itself, such projected timelines are forwardlooking statements.”

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Central District of California:
Securities Fraud Claims
Dismissed Where Plaintiff
Failed to Allege That
Defendants Would or Could
Have Known the Extent of thePandemic
On January 25, 2021, the Central Districtof California dismissed a putative classaction lawsuit alleging that a real estate
finance company, certain of its officers anddirectors, and its private equity sponsor
made misrepresentations and/or omissionsof material fact in the company’s offering
documents. Berg v. Velocity Fin., 2021
WL 268250 (C.D. Cal. 2021) (Klausner,J.).1 Notably, this is the first decision on a
motion to dismiss in a securities class action
involving allegations related to COVID-19,
according to Stanford University’s Securities
Class Action Clearinghouse.

No Plausible Inference That
Defendants Anticipated the Growthof Nonperforming Loans
Plaintiff alleged that defendants “failed
to disclose that at the time of the IPO the[c]ompany’s non-performing loans had
dramatically increased in size from thefigures provided in the [o]ffering [m]aterials,
as measured by both the amount of unpaid
principal balance and as a percentage ofthe [c]ompany’s overall loan portfolio.” Thecourt held that “[t]aken together, there isno plausible inference that [d]efendants
anticipated the rate of nonperforming loans
to have increased to the extent that it didprior to the IPO.” The court concluded that“[i]nstead, the [investor call] transcript
supports the inference while some growthof nonperforming loans was expected, there
was also an unexpected increase due to thecoronavirus pandemic.”
Plaintiff further alleged that “[d]efendants
failed to disclose the potential impact ofa brewing pandemic on [the company’s]
business and operations.” Specifically, thecompany stated in its offering materials that“[w]e believe that there is a substantial anddurable market opportunity for investor
real estate loans . . . .” The court held
1. Simpson Thacher represents defendants in this action.

that the company’s “statement about thereal estate market [is] no different fromthe nonactionable statements in Police
Retirement System.”2 The court explainedthat the company’s statement in this case “islike the company in Police Retirement System
stating, ‘that there is potential growth in thedVP market.’” The court continued that “[i]nboth cases, the companies propound thefavorable state of their respective markets,and the companies’ ability to capitalize on
them.” The court concluded that “thesestatements cannot form the basis of a Section
11 securities claim.”

Item 303 Disclosure Not Required
if Plaintiff Failed to Allege That
Defendants Would or Could Have
Known the Pandemic’s Extent
Plaintiff alleged that defendants also violated
Item 303 of Regulation S-K because theoffering materials failed to disclose that “abrewing pandemic presented uncertainty thatwas likely to adversely affect the economy
and real estate market.” The court explainedthat “Item 303 requires disclosure when
there is knowledge of an adverse trend,material impact, and that the future material
impacts are reasonably likely to occur fromthe present-day perspective.” With respect
to these allegations, the court found that“[p]laintiff does not allege that [d]efendants
would or could have known the extent of thecoronavirus pandemic, or even the presenceof the disease in America, at the time of the[January 2020] IPO.” The court then heldthat “[t]hus, there would have been no needfor [d]efendants to include any disclosure
about the pandemic in its offering materials.”No Need for Specific Item 105
Disclosure if Plaintiff Failed toAdequately Allege How Defendants
Would Have Known About
Coronavirus Risks
Plaintiff alleged that defendants also violated
Item 105 of Regulation S-K by failing to“adequately warn purchasers of common
stock in connection with the IPO of the issues[the company] was then facing as a resultof the coronavirus.” The court explainedthat “Item 105 requires a discussion of thematerial factors that makes an investment in
2. Police Ret. Sys. of St. Louis v. Intuitive Surgical, 759 F.3d
1051 (9th Cir. 2014).
4

the registrant or offering speculative or risky.”
The court pointed out that “[a]t minimum,[d]efendants disclosed that its business may
be affected by changes in national, regional or
local economic conditions or specific industry
segments, which may be caused by ‘acts ofGod.’” The court found that “[p]laintiff has
not adequately alleged how [d]efendants
would have known about the coronavirus
risks at the time of the IPO to be able toinclude a more specific warning.” The court
then concluded that “[d]efendants did notneed to include more specific disclosuresabout the coronavirus pandemic.”

cyberattack] had substantially delayed, rather
than accelerated, the integration of [thesubsidiary] into [the company].” Plaintiff
claimed these facts demonstrated that“[d]efendants lacked a reasonable basis fortheir positive statements about the [c]ompany
and its prospects, including its ability to meetthe [subsidiary’s] [i]ncome [i]mprovement[t]arget.”Southern District of New York:
Disclosures in Wake ofCyberattack Defeated
Securities Fraud Claims
On February 4, 2021, the Southern Districtof New York dismissed with prejudice asecurities fraud class action against aninternational package delivery company andcertain of its officers and directors alleging
that the company misrepresented the statusof its recovery from a significant cyberattack.
In re FedEx Sec. Litig., 2021 WL 396423(S.D.N.Y. 2021) (Abrams, J.). The court heldthat “plaintiff fail[ed] to adequately plead thefalsity of [the company’s] statements about
its recovery from [the cyberattack] because
those same statements were accompanied bynumerous disclosures about the difficulties
faced and expenses incurred by [thecompany] in that process.”

BackgroundIn 2016, the company acquired a subsidiary
to expand its presence in Europe. In 2017,
the company announced that this subsidiary
had been impacted by a cyberattack thattook the form of a computer virus. Plaintiff
pension fund alleged that the company
misrepresented the status of its recovery
from the cyberattack. Plaintiff claimed thecompany’s statements concerning its recovery“were materially misleading because theyfailed to disclose 1) that [the subsidiary’s]
international service was largely disabled
for six months due to the virus; 2) that [thesubsidiary] was losing a significant proportionof its high-margin customers due to its failure
to operate internationally; and 3) that [theNumerous Disclosures Belied Claim
That Cyberattack Damage Was
Belatedly Disclosed
The court stated that “[e]ven accepting[p]laintiff’s allegations as true, [it]conclude[d] that the challenged statements,
when considered in their full context, would
not mislead a reasonable investor as to [thecyberattack’s] effect on the [c]ompany or as
to the status of [its subsidiary’s] integration.”
The court stated that “[the company’s]
numerous disclosures during the [c]lass[p]eriod belie [p]laintiff’s contention that[it] belatedly disclosed to the market thedamage [the cyberattack] had caused tothe [c]ompany and . . . [its subsidiary] inDecember 2018.” The court continued that“[u]nder those circumstances, [d]efendants’professed optimism about [the subsidiary]in the wake of the [] attack is an insufficientbasis for securities fraud, even thoughhindsight suggests that such optimism may
have been misguided.”

Cautionary Statements,
Often Bolded and Italicized,
Warned Investors
The court explained that “an examinationof [the company’s] statements in theirfull context illustrates the inadequacy of[p]laintiff’s fraud allegations.” The court
noted that “[e]ach of the quarterly reports[,]
5

from which [p]laintiff has selected allegedly
misleading statements[,] contained
language, often bolded and italicized foremphasis, that warned investors about thepotentially lingering effects of the June 2017
cyberattack.” For example, the court pointed
to the company’s December 2017 10-Q reportthat was filed six months after the attack,which stated that the cyberattack’s “ongoing
impact could negatively affect our
results of operations and financial
condition in the future, particularly
if our continuing recovery efforts do
not proceed as expected.” The court
stated that “[t]hese cautionary statements
exemplify [d]efendants’ repeated disclosureof the [c]ompany’s difficulties in recoveringfrom [the cyberattack].” In light of these
disclosures, the court “conclude[d] that[p]laintiffs have failed to allege sufficient
facts to establish that [the company’s] more
optimistic statements misled the investing
public.” The court further stated that “[e]ven
accepting the allegedly omitted facts astrue, none of the categories of statements
challenged by [p]laintiff was actionably false
or misleading under the securities laws.”

exceptions, a merger extinguishes an equity
owner’s standing to pursue a derivative
claim against the target entity’s directors orcontroller.” However, the court held that “thesame plaintiff has standing to pursue a postclosing suit if they challenge the validity of themerger itself as unfair because the controller
failed to secure the value of a material asset—
like derivative claims that pass to the acquirer
in the merger.”

Background
After a $3.3 billion “roll up” of minority-heldunits involving a merger between an acquiring
corporation and a limited partnership,
plaintiff (a former minority unitholder of thelimited partnership) lost standing to litigate
his alleged $661 million derivative suit on
behalf of the limited partnership against its
general partner. Subsequently, plaintiff filed
a new class action complaint alleging that themerger exchange ratio was unfair because thegeneral partner had agreed to a merger that
did not reflect the material value of plaintiff’s
derivative claims. The Court of Chancery
granted the general partner’s motion todismiss plaintiff’s new class action complaint
for lack of standing, applying the three-part
test from In re Primedia, Inc. S’holders Litig.,
67 A.3d 455 (Del. Ch. 2013).

The Court Reiterates the Three-Part
Primedia Test

Delaware Supreme Court:
Post-Merger Standing Exists if
Merger Fairness Is Challenged
Due to Failure to Secure a
Pending Derivative Claim’s
Value
On January 22, 2021, the Delaware Supreme
Court reversed the Court of Chancery’s
dismissal, due to lack of standing, of postmerger claims challenging a merger’s fairness
for the controller’s failure to recoup thevalue of derivative claims. Morris v. Spectra
Energy, 2021 WL 221987 (Del. 2020) (Seitz,
C.J.). The court explained that “[w]ith limited

The court stated that “[t]he main issue on
appeal is whether the Court of Chancery
stayed true to the standard of review ona motion to dismiss for lack of standing.”
The court then announced that the lower
court “strayed from the proper standardof review, and [plaintiff] had standing topursue his post-merger complaint.” Thecourt stated that in this case, “we thinkthat the Primedia framework provides areasonable basis to conduct a pleadings-based
analysis to evaluate standing on a motion todismiss.” The court explained that “[f]irst,
the court must decide whether the underlying
derivative claims were viable, meaning theywould survive a motion to dismiss.” The court
noted that “[m]eritless derivative claims
would have no impact on the merger price.”
The court stated that “[s]econd, the derivative
claim recovery as pled must be material in
relation to the merger consideration.” Thecourt stated that “[a]n immaterial derivative
claim would have little or no impact on the6merger price.” Third, the court stated that“the court should also assess whether thecomplaint alleges that the acquirer would notassert the underlying derivative claim and did
not provide value for it.”

The Chancery Court Did Not Draw
All Reasonable Inferences in
Plaintiff’s Favor; Should Not Have
Applied a Further Litigation Risk
Discount
Applying this standard, the court stated that“the parties do not dispute the viability of thederivative claim.” This was because plaintiff’s
derivative claim had survived a motion todismiss before that lawsuit was ultimately
dismissed by stipulation of the parties after
the merger closed. The court also stated thatthe parties “did not dispute that [the generalpartner] secured no value for the derivative
claim, and [the acquiring corporation] would
not assert the claim post-merger.”
Turning to materiality, the court stated that
there were “two errors in the [lower] court’smateriality analysis at the motion to dismissstage of the proceedings.” The court explainedthat “[f]irst . . . the court must accept[plaintiff’s] factual allegations as true anddraw all reasonable inferences in his favor.”
The court stated that “it was reasonably
conceivable that the [g]eneral [p]artner acted
in subjective bad faith.” The court continued
that “[i]t was also reasonably conceivable that,had [plaintiff] succeeded in the derivative
suit challenging the reverse drop downtransaction, the recovery could have been atleast $660 million.” The court concluded that“[a]pplying a further litigation risk discountat the pleading stage was inconsistent withthe court’s standard of review on a motion todismiss for lack of standing.”

The Chancery Court Did Not Use theProper Calculation to Determine if
the Derivative Claim Was Material;
Should Not Have Applied a
Percentage-Based Risk Reduction
The court stated that the second error wasthat “even if it was proper to discount the$660 million in damages alleged in thecomplaint to reflect the public unitholders’interest in the derivative recovery, tomaintain equivalence, the court should havecompared the $112 million pro rata interestin the derivative claim recovery to the public
unitholders’ proportional interest in themerger consideration.” The court determinedthat “[u]nder this calculation, the derivative
claim was material at the motion to dismissstage.” The court noted that “[i]n any event,on a motion to dismiss for lack of standing,
we are not addressing the likelihood of
success on a preliminary injunction record.”
Further, the court stated that “[a] percentagebased risk reduction should not be applied at
this stage of the proceedings.”

This edition of the
Securities Law Alert was edited byPeter E. Kazanoffpkazanoff@stblaw.com / +1-212-455-3525,
Meaghan A. Kelly
mkelly@stblaw.com / +1-202-636-5542,
and George S. Wang
gwang@stblaw.com /+1-212-455-2228

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