Section 27 -- Private Securities Litigation

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Securities Act of 1933

Section 27 -- Private Securities Litigation

Private class actions
1. In general
  
  The provisions of this subsection shall apply to each private action arising under this title that is brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure.
2. Certification filed with complaint
  1. In general
    
    Each plaintiff seeking to serve as a representative party on behalf of a class shall provide a sworn certification, which shall be personally signed by such plaintiff and filed with the complaint, that--
    1. states that the plaintiff has reviewed the complaint and authorized its filing;
    2. states that the plaintiff did not purchase the security that is the subject of the complaint at the direction of plaintiff's counsel or in order to participate in any private action arising under this title;
    3. states that the plaintiff is willing to serve as a representative party on behalf of a class, including providing testimony at deposition and trial, if necessary;
    4. sets forth all of the transactions of the plaintiff in the security that is the subject of the complaint during the class period specified in the complaint;
    5. identifies any other action under this title, filed during the 3-year period preceding the date on which the certification is signed by the plaintiff, in which the plaintiff has sought to serve, or served, as a representative party on behalf of a class; and
    6. states that the plaintiff will not accept any payment for serving as a representative party on behalf of a class beyond the plaintiff's pro rata share of any recovery, except as ordered or approved by the court in accordance with paragraph (4).
  2. Nonwaiver of attorney-client privilege
    
    The certification filed pursuant to subparagraph (A) shall not be construed to be a waiver of the attorney-client privilege.
3. Appointment of lead plaintiff
  1. Early notice to class members
    1. In general
      
      Not later than 20 days after the date on which the complaint is filed, the plaintiff or plaintiffs shall cause to be published, in a widely circulated national business-oriented publication or wire service, a notice advising members of the purported plaintiff class--
      1. of the pendency of the action, the claims asserted therein, and the purported class period; and
      2. that, not later than 60 days after the date on which the notice is published, any member of the purported class may move the court to serve as lead plaintiff of the purported class.
    2. Multiple actions
      
      If more than one action on behalf of a class asserting substantially the same claim or claims arising under this title is filed, only the plaintiff or plaintiffs in the first filed action shall be required to cause notice to be published in accordance with clause (i).
    3. Additional notices may be required under Federal Rules
      
      Notice required under clause (i) shall be in addition to any notice required pursuant to the Federal Rules of Civil Procedure.
  2. Appointment of lead plaintiff
    1. In general
      
      Not later than 90 days after the date on which a notice is published under subparagraph (A)(i) , the court shall consider any motion made by a purported class member in response to the notice, including any motion by a class member who is not individually named as a plaintiff in the complaint or complaints, and shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be most capable of adequately representing the interests of class members (hereafter in this paragraph referred to as the "most adequate plaintiff") in accordance with this subparagraph.
    2. Consolidated actions
      
      If more than one action on behalf of a class asserting substantially the same claim or claims arising under this title has been filed, and any party has sought to consolidate those actions for pretrial purposes or for trial, the court shall not make the determination required by clause (i) until after the decision on the motion to consolidate is rendered. As soon as practicable after such decision is rendered, the court shall appoint the most adequate plaintiff as lead plaintiff for the consolidated actions in accordance with this subparagraph.
    3. Rebuttable presumption
      1. In general
        
        Subject to subclause (II), for purposes of clause (i) , the court shall adopt a presumption that the most adequate plaintiff in any private action arising under this title is the person or group of persons that--
        
        (aa) has either filed the complaint or made a motion in response to a notice under Subparagraph (A)(i);
        
        (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and
        
        (cc) otherwise satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.
      2. Rebuttable evidence
        
        The presumption described in subclause (I) may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff--
        
        (aa) will not fairly and adequately protect the interests of the class; or
        
        (bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class.
    4. Discovery
      
      For purposes of this subparagraph, discovery relating to whether a member or members of the purported plaintiff class is the most adequate plaintiff may be conducted by a plaintiff only if the plaintiff first demonstrates a reasonable basis for a finding that the presumptively most adequate plaintiff is incapable of adequately representing the class.
    5. Selection of lead counsel
      
      The most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.
    6. Restrictions on professional plaintiffs
      
      Except as the court may otherwise permit, consistent with the purposes of this section, a person may be a lead plaintiff, or an officer, director, or fiduciary of a lead plaintiff, in no more than 5 securities class actions brought as plaintiff class actions pursuant to the Federal Rules of Civil Procedure during any 3-year period.
4. Recovery by plaintiffs
  
  The share of any final judgment or of any settlement that is awarded to a representative party serving on behalf of a class shall be equal, on a per share basis, to the portion of the final judgment or settlement awarded to all other members of the class. Nothing in this paragraph shall be construed to limit the award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of the class.
5. Restrictions on settlements under seal
  
  The terms and provisions of any settlement agreement of a class action shall not be filed under seal, except that on motion of any party to the settlement, the court may order filing under seal for those portions of a settlement agreement as to which good cause is shown for such filing under seal. For purposes of this paragraph, good cause shall exist only if publication of a term or provision of a settlement agreement would cause direct and substantial harm to any party.
6. Restrictions on payment of attorneys' fees and expenses
  
  Total attorneys' fees and expenses awarded by the court to counsel for the plaintiff class shall not exceed a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class.
7. Disclosure of settlement terms to class members
  
  Any proposed or final settlement agreement that is published or otherwise disseminated to the class shall include each of the following statements, along with a cover page summarizing the information contained in such statements:
  1. Statement of plaintiff recovery
    
    The amount of the settlement proposed to be distributed to the parties to the action, determined in the aggregate and on an average per share basis.
  2. Statement of potential outcome of case
    1. Agreement on the amount of damages
      
      If the settling parties agree on the average amount of damages per share that would be recoverable if the plaintiff prevailed on each claim alleged under this title, a statement concerning the average amount of such potential damages per share.
    2. Disagreement on the amount of damages
      
      If the parties do not agree on the average amount of damages per share that would be recoverable if the plaintiff prevailed on each claim alleged under this title, a statement from each settling party concerning the issue or issues on which the parties disagree.
    3. Inadmissibility for certain purposes
      
      A statement made in accordance with clause (i) or (ii) concerning the amount of damages shall not be admissible in any Federal or State judicial action or administrative proceeding, other than an action or proceeding arising out of such statement.
  3. Statement of attorneys' fees or costs sought
    
    If any of the settling parties or their counsel intend to apply to the court for an award of attorneys' fees or costs from any fund established as part of the settlement, a statement indicating which parties or counsel intend to make such an application, the amount of fees and costs that will be sought (including the amount of such fees and costs determined on an average per share basis) , and a brief explanation supporting the fees and costs sought.
  4. Identification of lawyers' representatives
    
    The name, telephone number, and address of one or more representatives of counsel for the plaintiff class who will be reasonably available to answer questions from class members concerning any matter contained in any notice of settlement published or otherwise disseminated to the class.
  5. Reasons for settlement
    
    A brief statement explaining the reasons why the parties are proposing the settlement.
  6. Other information
    
    Such other information as may be required by the court.
8. Attorney conflict of interest
  
  If a plaintiff class is represented by an attorney who directly owns or otherwise has a beneficial interest in the securities that are the subject of the litigation, the court shall make a determination of whether such ownership or other interest constitutes a conflict of interest sufficient to disqualify the attorney from representing the plaintiff class.
Stay of discovery; preservation of evidence
1. In general
  
  In any private action arising under this title, all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds, upon the motion of any party, that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.
2. Preservation of evidence
  
  During the pendency of any stay of discovery pursuant to this subsection, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations (including electronically recorded or stored data) , and tangible objects that are in the custody or control of such person and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party under the Federal Rules of Civil Procedure.
3. Sanction for willful violation
  
  A party aggrieved by the willful failure of an opposing party to comply with paragraph (2) may apply to the court for an order awarding appropriate sanctions.
4. Circumvention of stay of discovery
  
  Upon a proper showing, a court may stay discovery proceedings in any private action in a State court as necessary in aid of its jurisdiction, or to protect or effectuate its judgments, in an action subject to a stay of discovery pursuant to this subsection.
Sanctions for abusive litigation
1. Mandatory review by court
  
  In any private action arising under this title, upon final adjudication of the action, the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion.
2. Mandatory sanctions
  
  If the court makes a finding under paragraph (1) that a party or attorney violated any requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion, the court shall impose sanctions on such party or attorney in accordance with Rule 11 of the Federal Rules of Civil Procedure. Prior to making a finding that any party or attorney has violated Rule 11 of the Federal Rules of Civil Procedure, the court shall give such party or attorney notice and an opportunity to respond.
3. Presumptions in favor of attorneys' fees and costs
  1. In general
    
    Subject to subparagraphs (B) and (C), for purposes of paragraph (2), the court shall adopt a presumption that the appropriate sanction--
    1. for failure of any responsive pleading or dispositive motion to comply with any requirement of Rule 11(b) of the Federal Rules of Civil Procedure is an award to the opposing party of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation; and
    2. for substantial failure of any complaint to comply with any requirement of Rule 11(b) of the Federal Rules of Civil Procedure is an award to the opposing party of the reasonable attorneys' fees and other expenses incurred in the action.
  2. Rebuttal evidence
    
    The presumption described in subparagraph (A) may be rebutted only upon proof by the party or attorney against whom sanctions are to be imposed that--
    1. the award of attorneys' fees and other expenses will impose an unreasonable burden on that party or attorney and would be unjust, and the failure to make such an award would not impose a greater burden on the party in whose favor sanctions are to be imposed; or
    2. the violation of Rule 11(b) of the Federal Rules of Civil Procedure was de minimis.
  3. Sanctions
    
    If the party or attorney against whom sanctions are to be imposed meets its burden under subparagraph (B) , the court shall award the sanctions that the court deems appropriate pursuant to Rule 11 of the Federal Rules of Civil Procedure.
Defendant's right to written interrogatories

In any private action arising under this title in which the plaintiff may recover money damages only on proof that a defendant acted with a particular state of mind, the court shall, when requested by a defendant, submit to the jury a written interrogatory on the issue of each such defendant's state of mind at the time the alleged violation occurred.

Legislative History

May 27, 1933, ch 38, Title I, § 27, as added Dec. 22, 1995, P.L. 104-67, Title I, § 101(a), 109 Stat. 737; Nov. 3, 1998, P.L. 105-353, Titles I, § 101(a)(2), Title III, § 301(a)(5), 112 Stat. 3230, 3235.

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