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Securities Regulation & Law ReportTM Reproduced with permission from Securities Regulation & Law Report, 46 SRLR 1677, 08/25/2014. Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com JURISDICTION AND PROCEDURE Shareholder Derivative Litigation and Parallel Proceedings: Practical and Strategic Implications, Part I BY JIM DUCAYET AND NILOFER UMAR Jim Ducayet is a Partner in Sidley Austin LLP’s M&A and D&O Litigation and Securities Litigation practices. Jim serves as a global co-chair of the firm’s Securities Litigation practice area team. Jim represents clients in a variety of complex commercial litigation mat- ters at the trial and appellate level with a focus on shareholder-related disputes and cor- porate governance. Nilofer Umar is an associate in Sidley Austin LLP’s M&A and D&O Litigation, Securities Litigation and Securities & Derivatives Enforcement and Regulatory practices. Nilofer represents corporations, directors, officers, and financial institutions in complex litigation matters. The authors wish to thank former Sidley Aus- tin LLP associate Catharine DeJulio and summer associate Abigail Molitor for their invaluable assistance with both articles in this series. The views expressed herein are those of the authors and do not necessarily repre- sent the views of Sidley Austin LLP or its cli- ents. I. Introduction Corporations facing civil litigation or regulatory in- vestigations often find themselves simultaneously beset with stockholder derivative actions pre- mised on the same underlying facts. For instance, a cor- poration, together with certain of its directors and offi- cers, may be sued in a securities fraud or employment discrimination class action case, or be the subject of a Securities and Exchange Commission or Department of Justice investigation, only to then see a stockholder de- rivative case filed based on the same events. The very different nature of these types of proceed- ings introduces a host of thorny practical and strategic concerns. A shareholder derivative action – which is nominally brought by the corporation against directors or officers – may result in a corporation being ascribed positions adverse to its defense in parallel proceedings, in which the corporation may have an interest in argu- ing that its directors or employees did not commit wrongdoing. Thus, the simultaneous litigation of a de- rivative action and parallel proceedings may undermine a corporation’s position in both. In addition, as a practi- cal matter, the underlying facts may still be developing. A derivative case could be at best premature, and at worst, may interfere with or complicate resolution of the parallel matters. For instance, where a derivative claim seeks indemnification from directors and/or offi- COPYRIGHT 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0037-0665PDF Image | Securities Regulation and Law Report
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