Leidos and the Roberts Court's Improvident Securities Law Docket
11 Pages Posted: 18 Oct 2017 Last revised: 30 Dec 2017
Date Written: October 17, 2017
This Essay addresses a noteworthy case from the U.S. Supreme Court's 2017 Term, Leidos, Inc. v. Indiana Public Retirement System (Leidos). Leidos turned on a significant issue in securities law, as it concerned investors’ ability to bring fraud claims under Rule 10b-5 in connection with one of the more controversial corporate disclosures mandated by the SEC — an overview of uncertainties facing a company’s financial future, known as “Management’s Discussion and Analysis” (MD&A). Although Leidos was billed in both the briefing to the Supreme Court and academic commentary as presenting a classic circuit split, this Essay demonstrates that a careful reading of the underlying precedents reveals no genuine dispute among the federal courts. The case, which was settled in the weeks leading up to its oral argument, therefore left so little to be resolved that it was already ripe for removal from the Supreme Court’s docket on the grounds that certiorari had been “improvidently granted.”
The confusion surrounding Leidos is of broader importance for understanding the evolution of the Supreme Court’s securities law jurisprudence since John Roberts became Chief Justice in 2005. Namely, it highlights what is becoming a defining characteristic of the Roberts Court: that it has combined an enthusiasm for granting certiorari on securities law petitions with a tendency to misapprehend the issues (or lack thereof) which they raise. This practice reflects an inefficient use of the Court’s scarce docket space. It also represents a missed opportunity to clarify the many areas of securities regulation that remain mired in doctrinal incoherence.
Keywords: Securities Law, Supreme Court Litigation
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