REPORT
Securities Litigation
Complete Table of Contents listed on page 2.
Content
HIGHLIGHTS
CONTINUED ON PAGE 4
April 2011 n Volume 8 n Issue 4
The
Vivendi
Ruling:
Revisiting Three Key Issues
(and Adding Two More)
By JOrDAN ETh & MIA MAzzA
Jordan Eth and Mia Mazza are partners in the San Francisco office of Morrison & Foerster LLP. Mr. Eth is
Co-Chair of the firm’s Securities Litigation, Enforcement, and White-Collar Defense Group. He also is a
member of the Editorial Advisory Board of Securities Litigation Report. Ms. Mazza focuses her practice
on representing issuers and related parties in federal and state securities litigation, including shareholder
class actions, derivative actions, internal corporate investigations, and other matters involving director and
officer liability. Contact: jeth@mofo.com or mmazza@mofo.com.
41055355
In the March 2010 issue of Securities
Litigation Report, we reviewed the Janu-
ary 2010 jury verdict in In re Vivendi
Universal S.A. Securities Litigation in the
Southern District of New York, and identi-
fied three aspects of the verdict that stood
out to us as interesting. The jury had found
no liability with respect to Vivendi’s former
CEO Jean-Marie Messier and its former
CFO Guillaume Hannezo, and that Viven-
di Universal S.A. (Vivendi) had committed
securities fraud under § 10(b) of the Securi-
ties Exchange Act of 1934.
1
Immediately following the discharge of
the jury, Vivendi orally renewed an earlier
motion for judgment as a matter of law
(JMOL) under Federal Rule of Civil Pro-
cedure 50(b). Vivendi also orally moved
for a new trial under Rule 59. In briefing,
Vivendi styled its motion as a motion for
JMOL or, in the alternative, for a new trial.
The plaintiffs moved for entry of judg-
ment. Judge Richard J. Holwell issued a
121-page opinion on February 17, 2011,
nearly a year after the motions were filed.
2
The opinion provides a detailed analysis of
each argument presented by each party.
In this article we revisit the three Viven-
di-verdict issues discussed in our March
2010 article and review Judge Holwell’s
approach to them. We also discuss two ad-
ditional areas of interest addressed in Judge
Holwell’s opinion. Together, these five is-
sues could very well form the core of any
appeals.
Second Circuit’s MBIA Decision Forces Defendants
to Choose Whether Securities Fraud Claims are
Time-barred or Not Properly Pled
By Christian Siebott & Brian Lehman ......................16
Trial or Settle? The Integrated e-Discovery
Experience vs. Other Methods
By Matt Berry ............................................................ 19
April 2011 n Volume 8 n Issue 4 Securities Litigation Report
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Editorial Board
Table of CONTENTS
© 2011 Thomson Reuters
MANAGING EDITOR:
GREGG WIRTH
CHAIRMAN:
JOSEPH M. MCLAUGHLIN
Simpson Thacher & Bartlett LLP
New York, NY
BOARD OF EDITORS:
JONATHAN C. DICKEY
Gibson, Dunn & Crutcher LLP
Palo Alto, CA
MARK RADKE
Arent Fox LLP
Washington, DC
ANDREW B.WEISSMAN
WilmerHale LLP
Washington, DC
PROF. ALAN SCHULMAN
University of San Diego
San Diego, CA
BRUCE D. ANGIOLILLO
Simpson Thacher & Bartlett LLP
New York, NY
LAWRENCE BYRNE
Linklaters LLP,
New York, NY
JAMES BENEDICT
Milbank, Tweed, Hadley & McCloy
New York, NY
WAYNE M. CARLIN
Wachtell, Lipton, Rosen & Katz
New York, NY
PAUL H. DAWES
Latham & Watkins LLP
Menlo Park, CA
JORDAN ETH
Morrison & Foerster LLP
San Francisco, CA
RALPH C. FERRERA
Dewey & LeBouef LLP
Washington, DC
JOY A. KRUSE
Lieff Cabraser Heimann & Bernstein LLP
San Francisco, CA
JONATHAN M. HOFF
Cadwalader, Wickersham & Taft LLP
New York, NY
GRACE LAMONT
PricewaterhouseCoopers
New York, NY
ALFRED J. LECHNER, JR.
White & Case LLP
New York, NY
PAUL LOMAS
Freshfields Bruckhaus Deringer
London
PROF. LINDA MULLENIX
Professor of Law University of
Texas School of Law
Austin, TX
JOHN F. SAVARESE
Wachtell, Lipton, Rosen & Katz
New York, NY
SHERRIE R. SAVETT
Berger & Montague, P.C.
Philadelphia, PA
CHRISTIAN SIEBOTT
Bernstein Liebhard LLP
New York, NY
WARREN R. STERN
Wachtell, Lipton, Rosen & Katz
New York, NY
ROBERT A.WALLNER
Milberg LLP
New York, NY
ERIC S. WAXMAN
Skadden, Arps, Slate, Meagher & Flom LLP
Los Angeles, CA
MICHAEL R. YOUNG
Willkie Farr & Gallagher LLP
New York, NY
JONATHAN K. YOUNGWOOD
Simpson Thacher & Bartlett LLP
New York, NY
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Newsletter ad 2.8772 x 4.5.qxp 2/1/2010 1:38 PM Page 1
The
Vivendi
Ruling: Revisiting Three Key Issues
(and Adding Two More)
By Jordan Eth & Mia Mazza ............................................................1
From the EDITORS
Joseph M. McLaughlin & Gregg Wirth ............................................3
Delaware Chancery Court Update: Recent Decisions Shed
New Light on Stapled Financing Offered by Financial Advisors,
Duties of Directors with Respect to Poison Pills
By Eric S. Waxman & Virginia F. Milstead ....................................10
Second Circuit’s MBIA Decision Forces Defendants to Choose
Whether Securities Fraud Claims are Time-barred or Not
Properly Pled
By Christian Siebott & Brian Lehman ...........................................16
Trial or Settle? The Integrated e-Discovery
Experience vs. Other Methods
By Matt Berry .................................................................................19
The State of Engagement Between U.S. Corporations
and Shareholders
By Marc Goldstein..........................................................................21
