we'd like to thank all of our panel
members today and now what we'd like to
do we have about seven minutes remaining
we'd like to give everybody a minute
minute and a half on the panel to go
over what they consider the key
takeaways we would like to do this in
the order of the presentations so we
would start with Mary Eden Mary do you
have some final thoughts so for our
audience
sure um thanks again so with respect to
confidential witnesses I would say that
there are four main points the first of
which is that particularity is obviously
necessary for plaintiffs in crafting a
completing sufficient to withstand the
heightened requirements of the LRA as
interpreted by the Supreme Court but at
the same time the courts that have dealt
with these issues to date have furnished
plenty of grounds for defendants to
challenge those confidential witness
allegations to very good effect so
that's the first point I would make
secondly although there is no rule about
what plaintiff's counsel should or
should not do at this point there are
enough decisions out there critical of
certain practices such that plaintiff's
counsel who do not follow the minimums
best practices set forth by Judge Engle
Mayer are at at some risk at least of
being sanctioned and so it would be to
the extent that it has not become
industry practice it would be a very
good idea for those on the plaintiffs
side of the bar to follow judge angle
Meyers
recommendations thirdly time obviously
will tell how the courts are going to
resolve the issue of how to deal with
recanting witnesses and and when it's
appropriate to do that in the meantime I
think that we can expect defendants to
continue to raise the issue early for
all of the obvious reasons and we can
expect plaintiffs contrariwise to resist
those efforts including on both
procedural grounds and on the basis of
the fact that the PSLRA imposes an
automatic stay as to which there is at
least a certain element of irony and
then lastly I think in fairness to
everyone especially the witnesses who
find themselves quoted in these sorts of
complaints that it would be very
beneficial for the rules community at a
minimum and perhaps Congress to provide
much needed guidance in this area but
we'll have to see what happens what
happens with that as to concurrent
jurisdiction and subject matter
jurisdiction over covered class actions
under the 33 Act and I hope my
presentation that at least made clear
these issues are very very complicated
and there is no straightforward answer
to quote Judge Paul way the statute is
an absolute labyrinth and so it is
unclear at this point which way the
Supreme Court is going to going to rule
secondly you know the opportunities for
with
you even in the meantime remain very
limited orders granting remand are
generally not reviewable and orders
denying remand are non non file nine non
file excuse and so not appealable and so
final judgment at which point they are
of limited utility for the defendant
side so we really do need supreme court
guidance on this issue which hopefully
will come very very soon and either way
it's going to have a very significant
impact on how these cases are litigated
in the future
thank you Mary Eaton I'm not sure if I
issued the sixth secret word so it's
price PR IC e for the attendee seeking
continuing education credit price secret
word number six Ynez Alexander and
Matthew we we're really running short on
time
if please you could take a minute each
for some final thoughts in as you go
first please sure I think that we can
expect to see a continued increase in
item 303 and 503 allegations in 1933 Act
cases and at least until the Supreme
Court resolves in the circuit split in
1934 Act cases so I would counsel
defendants facing such allegations to
continue to focus on the key defenses
which are the actual knowledge
requirement and the requirement that the
known trend or uncertainty is likely to
have a material adverse effect or that
the risk is among the most significant
risks facing the company on the standing
section 11 and 12 standing issue I think
that this is a I do expect that more and
more circuits will
adopt the rules that the ninth and the
First Circuit adopted and century
aluminum and area'd and I would just
encourage all practitioners in this area
to be on alert for the the various types
of things purchases on different dates
other than the offering at different
prices to and not leave that that
argument on the table there's that so
also there's a good reason why these
cases defendants will typically want
them to be in federal court because a
lot of that information appears in the
lead plaintiff certification which
generally is not available in actions
filed in state court and then finally on
CalPERS versus ANZ I think that the
impact of that case is going to be felt
well beyond the 1933 Act it will be used
to try to narrow the application of
American pipe tolling in other contexts
especially cross jurisdictional tolling
and I do think that while it's not
likely to unleash a flood of protection
protective actions we are going to see
more opt outs and the relatively few
class members who are incentive to opt
out will do so sooner which will provide
defendants I think greater certainty as
to their maximum liability and may
facilitate their ability to negotiate a
comprehensive resolution of their
exposure Thank You Ynez Friedman voice
alexander royce yeah two points one
wonder whether practically and
economically the defendants will be
happy about all the results of multiple
jurisdiction litigation as a result of
maybe the vendee and Morrison and I will
see probably the land is being used more
the defense will see a lot more
interventions or other ways of joining
activities some class action to avoid
this reciprocal
argument or lack of reciprocity argument
thank you very much Alexander Royce and
Matthew Aronian please sure quickly I
think take aways that courts are
becoming more critical of the use of the
event study we get to narrow the ability
of defendants to exploit the opening
that halliburton seem to afford them for
plaintiffs they're also facing some
higher hurdles but providing more
additional evidence outside of the event
study might prove critical to them so I
think when use the key thing is that you
have to be doing this carefully and very
transparently and I think it just makes
good sense to consult with an expert
early on
