As I noted at the beginning of the U.S. Supreme Court’s current term in my summary of securities cases on the Court’s docket, one of the three key securities cases the court was to consider this term was Leidos, Inc. v. Indiana Public Retirement Systems. As discussed in greater detail here, this case, which was to be argued on November 6, 2017, was to address the recurring question of whether the failure to make disclosure required by Item 303 of Reg. S-K is an actionable omission under Section 10(b) and Rule 10b-5. However, as a result of developments in the case, the case is now in “abeyance,” oral argument in the case has taken off the calendar, and the case ultimately may be removed from the court’s docket altogether.
The Leidos case and its pendency before the Supreme Court attracted a great deal of attention, although not all of it favorable to the Court’s consideration of the questions presented. For example, Stanford Law Professor Joseph Grundfest, in a law review article about the case (discussed here), referred to the case as a “nothing burger,” because, he contended, regardless of which way the Court comes out in the case, the outcome will make little practical difference.Read More