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CALIFORNIA CORPORATE & SECURITIES LAW

What Do You Know? Bill Proposes To Eliminate Scienter

Corporations Code Section 25401 is California’s basic securities antifraud statute: It is unlawful for any person to offer or sell a security in this state, or to buy or offer to buy a security in this state, by means of any written or oral communication that includes an untrue statement of a material fact or…

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Bill Aims To Negate Scienter

You can thank the Romans for science and the English for knowledge The etymon of “scienter” is sciens which is the present participle form of the Latin verb meaning to know (scire).  The English word “know” is derived from the Old English verb, cnāwan, the present participle of which is cnāwende.  The roots of cnāwan can be traced back to…

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California Reverts To Former Securities Anti-Fraud Statute

Readers of this blog will recall my chariness of a 2013 amendment to California’s basic securities anti-fraud statute.  See California Creates Complete Chaos By Rewriting Anti-Fraud Statute, But “We Are Against Fraud Aren’t We?”  Although I identified a host of issues, my fundamental concern was that by rewriting California Corporations Code Section 25401, the legislature…

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Ninth Circuit Requires Particularity In All Elements Of Securities Fraud Pleading

Sometimes, I find it useful to take a step back and review the legal standard applicable to securities fraud claims under Section 10(b) and Rule 10b-5.  To stay in court, and securities litigation all about surviving motions to dismiss, a plaintiff must allege all of the following: A material misrepresentation or omission; Scienter; A connection…

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The Securities Fraud Device That The Legislature Devised To Omit

Last year, Senator Jerry Hill authored a bill, SB 538, which rewrote Corporations Code Section 25401.  As I posted, the underlying premise was fanciful at best – that California’s statute “has failed to keep up with similar language in federal anti-fraud statutes”.   By metamorphosing Section 25401 from a statute based on Section 12(a)(2) of…

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Die Verwandlung: How The Legislature Likely Raised The Bar On Securities Fraud Actions

With the availability of a private cause of action under SEC Rule 10b-5, is there any reason to include a cause of action under California Corporations Code Sections 25401 and 25501?  Until the most recent legislative session, there were significant differences between the federal rule and the California’s securities laws. California’s scheme has not required…

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Rule 144 Opinion Letters – Do They Protect Anyone?

The Ninth Circuit Court of Appeals has previously suggested that scienter is not required under Section 5.  SEC v. Phan, 500 F.3d 895, 905-06 (9th Cir. 2007).  Yesterday, the Court addressed the issue directly.  SEC v. CMKM Diamonds, Inc., Case Nos. 11-17021 & 11-17025 (Sept. 10, 2013). The case arose out of a scheme to distribute billions of…

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