Close X
Attorney Spotlight

How does Jessie Zeigler anticipate the intersection of privacy and smart technology will impact the future of litigation? Find out more>

Search

Close X

Experience

Search our Experience

Experience Spotlight

Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

Close X

Thought Leadership

Enter your search terms in the relevant box(es) below to search for specific Thought Leadership.
To see a recent listing of Thought Leadership, click the blue Search button below.

Thought Leadership Spotlight

GDPR Top 5 Actions You Should Take Now

The EU's General Data Protection Regulation (GDPR) went into effect on May 25th. As most organizations are aware, the GDPR applies not only to EU businesses but also many companies in the U.S. While the deadline is quickly approaching, most organizations are still grappling with the implications of the regulation on their business. Even if your readiness efforts are behind the curve, the GDPR Top 5 Actions You Should Take NOW will help you begin your efforts towards compliance and help mitigate your organization's risk in the short-term.

Click here to download the checklist.

Chris Lazarini Examines State Court Jurisdiction Under the Securities Act of 1933

Securities Litigation Commentator

Publications

June 5, 2017

Bass, Berry & Sims attorney Chris Lazarini examined a case in which the defendants claimed a state court did not have jurisdiction to hear a class action lawsuit alleging violations of the Securities Act of 1933. The court disagreed, pointing out that while exclusive jurisdiction to federal courts is expressed under the Securities Exchange Act of 1934, there is no similar language in the 1933 Act. Additionally, the court notes that nothing in the amendments to the 1933 Act adopted through the Private Securities Litigation Reform Act of 1995 or the Securities Litigation Uniform Standards Act of 1998 bars state courts from hearing class actions.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Fortunato vs. Akebia Therapeutics, Inc., No. 1584cv02665 (Mass Super., 2/21/17) 

A state court has concurrent jurisdiction with federal courts to hear and decide class actions brought under the Securities Act of 1933. 

In this putative class action, Plaintiff alleged that Akebia, its senior management and board, and the underwriter investment banks, issued IPO documents that were misleading because they did not disclose the results of an ongoing clinical drug trial that revealed multiple incidences of serious adverse events. Plaintiff sought recovery under sections 11, 12(a)(2), and 15 of the Securities Act of 1933 (the "'33 Act"). Defendants moved to dismiss, arguing that (1) the federal courts have exclusive jurisdiction over class actions under the '33 Act, (2) Plaintiff failed to plead his claims with sufficient particularity, and (3) even if the particularity hurdle did not exist or was overcome, Plaintiff failed to allege facts plausibly suggesting that the putative class is entitled to relief. 

The Court first determines that it has concurrent jurisdiction with federal courts to hear and decide '33 Act claims. Referencing Congress' express grant of exclusive jurisdiction to federal courts over claims under the Securities Exchange Act of 1934, the Court notes the absence of similar jurisdictional language in the '33 Act. Furthermore, nothing in the amendments to the '33 Act adopted through the Private Securities Litigation Reform Act of 1995 ("PSLRA") or the Securities Litigation Uniform Standards Act of 1998 ("SLUSA") bars state courts from hearing class actions. Finally, the Court rejects Defendants' complaints about inconsistent results if '33 Act claims are tried in state courts. The Court opines that the multi-tiered federal court system is similarly prone to inconsistencies, and notes that the Supreme Court may establish uniformity through review of both state and federal court decisions.

Next, examining the nature of the claims, the Court rejects Defendants' argument that they sound in fraud and must be pled with particularity under Mass. R. Civ. P. 9(b). Instead, Plaintiff's claims sound in negligence and are not subject to any heightened pleading standard. Finally, examining the merits of the factual allegations, the Court notes the clinical trial was a double-blind, placebo-controlled, randomized trial and finds that Plaintiff fails to plausibly suggest that Defendants knew or could have known about the number of adverse results revealed during the clinical trial at the time of the IPO. Given the double-blind nature of the trial, and Plaintiff's failure to seek leave to amend, the Court also finds that an amendment would be futile and dismisses the claims with prejudice. 

The jurisdictional issue may be resolved by the U.S. Supreme Court soon. See Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439, where the Supreme Court, in considering the Petition for Writ of Certiorari, invited the Acting Solicitor General to file a brief expressing the views of the United States on the issue, and the latter recommended that the Court grant the writ.


Related Professionals

Related Services

Notice

Visiting, or interacting with, this website does not constitute an attorney-client relationship. Although we are always interested in hearing from visitors to our website, we cannot accept representation on a new matter from either existing clients or new clients until we know that we do not have a conflict of interest that would prevent us from doing so. Therefore, please do not send us any information about any new matter that may involve a potential legal representation until we have confirmed that a conflict of interest does not exist and we have expressly agreed in writing to the representation. Until there is such an agreement, we will not be deemed to have given you any advice, any information you send may not be deemed privileged and confidential, and we may be able to represent adverse parties.