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John Mysliwiec

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John Mysliwiec is an associate in the Business Trial Practice Group in the firm's San Diego (Del Mar) office.

 

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In Max Royal LLC v. Atieva, Inc., No. 23-16049, 2024 U.S. App. LEXIS 19910 (9th Cir. Aug. 8, 2024), the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of a securities class action brought by investors who purchased shares of the special purpose acquisition company Churchill Capital Corporation IV (“CCIV”) in early 2021 before it merged with Atieva, Inc. d/b/a Lucid Motors (“Lucid”) in July 2021. The three-judge panel held that purchasers of a security of an acquiring company do not have standing under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), to sue the target company for alleged misstatements by the target company made prior to the merger between the two companies. The Court’s decision provides protection to target company executives speaking to the press about their company’s forecasts and capabilities prior to acquisition by tightening the standing requirements for pre-acquisition SPAC investor plaintiffs.Continue Reading Ninth Circuit Applies Birnbaum Rule to Affirm Dismissal of Claims by SPAC Investors Asserted Against Target Company Executives for Pre-Merger Statements

In Roth v. Foris Ventures, LLC, Nos. 22-16632, 22-16633, 2023 U.S. App. LEXIS 30081 (9th Cir. Nov. 13, 2023), the United States Court of Appeals for the Ninth Circuit partially reversed the dismissal of a shareholder derivative suit seeking to recover disgorgement of short-swing profits under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b). The three-judge panel held that the district court erred in holding that the company’s board was required to approve the stock sale transactions for the specific purpose of exempting it from Section 16(b) liability pursuant to Securities and Exchange Commission (“SEC”) Rule 16b-3(d)(1). The Court’s decision provides a board of directors with more latitude to approve securities transactions by Section 16 reporting persons without risk of liability under the short-swing profits rule.Continue Reading Ninth Circuit Provides Guidance on SEC Rule 16b-3 Short-Swing Profit Liability Exemption