Posted by Todd Zywicki:
Stoneridge v Scientific Atlanta:
http://volokh.com/archives/archive_2007_09_09-2007_09_15.shtml#1189798250
An early case on the Supreme Court's calendar this fall is Stoneridge
v. Scientific Atlanta.
Extensive background is provided in Peter Lattman's extensive coverage
on the Wall Street Journal Law Blog--a collection of his posting can
be found [1]here.
Larry Ribstein and Stephen Bainbridge have [2]co-authored an amicus
brief (with several others) and have blogged on the case. Having read
some commentary on the case, Larry and [3]Steve's arguments seem
persuasive. [4]Ribstein writes:
As a purely legal matter, I must add that the issue is not a
no-brainer. The basic problem is that the implied right of action
is almost completely open-ended, and facts can be manipulated
endlessly in a complaint. Lerach�s Enron complaint was 500 pages
long. In my article with Kobayashi, Class Action Lawyers as
Lawmakers, we compared such complaints to Theodore Dreiser�s
reconstruction of a crime in his novel, An American Tragedy.
All the more reason why we need clear rules here. My theory is that
the Court took cert on the Stoneridge case to provide that clarity,
and that it will add the Enron case to the appeal to increase that
clarity. By doing this the Court can make sure that secondary civil
liability under 10b-5 is really dead, and stays dead, rather than
wandering in scheme liability form like some terrifying zombie.
Boyden Gray also had an editorial in the Financial Times a few weeks
ago that picks up on some of the policy issues associated with this,
especially in the context of international law. The article is
subscriber's only, but I found it reprinted [5]here.
References
1. http://blogs.wsj.com/law/?s=stoneridge&x=6&y=6
2. http://busmovie.typepad.com/ideoblog/2007/08/the-stoneridge-.html
3. http://www.professorbainbridge.com/2007/08/stoneridge-amic.html
4. http://busmovie.typepad.com/ideoblog/2007/05/will_alito_kill.html
5. http://www.ir-soc.org.uk/files/pdf/bulletin/bulletin228.pdf
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