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Shareholder Litigation in Delaware: An Empirical Investigation
Full text linkThe empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, motions, fees, outcomes of each motion filed, and final disposition of the case.
We begin this overview of our study by focusing closely on differences our data shows exist among the three forms that such suits take: class actions, derivative suits, and individual suits. We analyze how experiences with such suits vary depending on a range of variables, such as the form of the suit, the nature of the suit’s plaintiff, whether the suit involves a public company (and, if so, the public company’s relative size), whether the suit involves an acquisition, and the suit’s final disposition (e.g., dismissed, settled, adjudged). In this inquiry, nearly one-quarter of the suits in our dataset involve purely independent claims, which provide a ready reference to assess whether representative suits (i.e., class and derivative claims) reflect long-feared agency costs from their counsel. Commentators have long asserted class and derivative suits suffer such costs because the suit’s representative plaintiff is a mere figurehead and the plaintiff’s counsel is the one with true skin in the game.
This study also provides a time-series analysis that allows us to analyze evolving trends in the data. To do this, we first divide our database into acquisition-related cases (52% of the sample) and non-acquisition-related cases (48% of the sample). We next separate acquisition cases into three time periods that are distinctly impacted by economic and legal developments. For example, one of our time periods enables us to observe the full impact of a trilogy of important Delaware court decisions: Kahn v. M&F Worldwide Corp., Corwin v. KKR Financial Holdings LLC, and In re Trulia, Inc. Stockholder Litigation.
Finally, our data provides a rich backdrop against which the social value of shareholder litigation can be assessed. Not only do we present extensive data on the final dispositions of the cases filed during our sixteen-year study period, but we also combine that information with data bearing on attorney effort during the course of litigation, fees awarded, and the outcomes of the suit. In this context, we gather information on frequent-filing attorneys and law firms. One important finding of our study is that while a small handful of attorneys garner significant fee awards, this cohort of attorneys does not overlap the short list of attorneys and firms that constitute about half of all complaint filings, which we refer to as “frequent filers.
Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach
Full text linkThis article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing upon numerous real-world examples from international law, foreign relations law and comparative constitutional law, we explain how national legislatures, domestic and international courts, state parties, and treaty depositories can implement the process-based approach. Opening the black box of unfettered executive power in pursuit of reason-giving and dialogue is not only timely for human rights treaties but also has the potential to radiate across international law more generally
New Insights on Expert Opinion About Eyewitness Memory Research
No full textExperimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert opinions from the past several decades. We found that experts today share many of the same opinions as experts in the past and have more nuanced thoughts about two issues. Experts in the past endorsed the idea that confidence is weakly related to accuracy, but experts today acknowledge the potential diagnostic value of initial confidence collected from a properly administered lineup. In addition, experts in the past may have favored sequential over simultaneous lineup presentation, but experts today are divided on this issue. We believe this new survey will prove useful to the court and to other stakeholders of eyewitness research
Sticker Shock Due Process
No full textTo address undesirable conduct like infringing a copyright or placing a robocall, legislatures have created statutory causes of action that enable plaintiffs to file private suits. Instead of needing to prove actual damages from a defendant\u27s conduct, many statutory causes of action allow a plaintiff to pursue a predefined damages amount per statutory violation. The damages are known as statutory damages, and their elegance lies in how they scale linearly, or one-to-one, with every violation by a defendant. But in the digital age, where automated technologies can generate millions of violations without human oversight, courts are now confronting monstrous aggregate awards composed of small individual violations performed by machines and artificial intelligence. To deal with this problem, the Ninth Circuit recently held in Wakefield v. ViSalus that an aggregate award comprised of constitutionally valid per-violation statutory damages could warrant a substantive due process reduction when the award is excessive to the underlying legislative goals.
This Note warns that the Ninth Circuit\u27s limit in Wakefield is a sticker shock approach to substantive due process—one that improperly focuses on the sheer size of a final aggregate award rather than the fairness or constitutionality of the underlying individual penalties. By allowing discomfort with large class action outcomes to override other considerations, Wakefield threatens to erode statutory enforcement mechanisms, deter class action plaintiffs, and alter due process doctrine to benefit large-scale violators across the country
Guns, Judges, and Trump
Full text linkThe Second Amendment landscape is widely perceived to have changed as a result of two cases, District of Columbia v. Heller and New York State Rifle & Pistol Ass’n v. Bruen. But how much did it change and in what ways? Empirical work on these questions has been sparse. This Essay reports on a preliminary look at the data. Although this is a developing story, the impact of these cases appears to have been substantial, and not only by increasing the sheer number of gun cases in the courts. More significant is the way that the Court’s new historical test for assessing gun regulations has provided lower courts with so little guidance that enforcement of gun rights has displayed a significant degree of partisanship. The data calls into question the Court’s claim to have reduced the discretion of judges in enforcing the Second Amendment
