The Split Continues: An Update on the Never-Ending Ambiguity Surrounding the Securities Litigation Uniform Standards Act

Emiley E. Dillon


Securities litigation and enforcement often increase in times of financial hardship and crisis, and experts believe that the COVID-19 pandemic will be another example of this reality.[1] One critical choice any plaintiff’s attorney in a securities-related class action must make is whether to bring a claim under federal or state law. As securities litigation increases in response to COVID-19, this jurisdictional decision will likely become more relevant.[2] Even before COVID-19, however, this choice has taunted securities lawyers. Congress enacted the Securities Litigation Uniform Standards Act (SLUSA) to give effect to the Private Securities Litigation Reform Act (PSLRA) by preventing claimants from bringing security fraud claims in state court as a method of avoiding the PSLRA’s more stringent federal pleading standards.[3] The SLUSA provides that a claimant may not bring a class action involving more than 50 members in any state court based on state law if the claim involves a nationally listed security and alleges “an untrue statement or omission of a material fact . . . [or] manipulative or deceptive device or contrivance” in connection with buying or selling a covered security.[4]

Federal circuit courts have taken varying approaches to the single question of when a complaint alleges a misstatement or omission sufficient to warrant SLUSA preemption.[5] The question of preemption becomes more difficult to answer when the complaint alleges traditional state-law claims of breach of fiduciary duty or breach of contract with incidental aspects of security fraud.[6] With the increasing willingness of the circuits to interpret the SLUSA broadly and the growing amount of pandemic-related securities litigation, there may be more opportunities for the Supreme Court to finally provide clarity on this issue. Continue reading

Homes Compose the Community: Extend the Community Caretaking Exception to Homes

Kristyn Couvillion

I. Background

A fundamental right secured by the Bill of Rights is the right of individuals to be free of unreasonable governmental searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1]

Throughout Fourth Amendment jurisprudence, the U.S. Supreme Court has established a reasonableness standard. Courts apply a reasonableness standard when limiting the Fourth Amendment. When an exception to the Fourth Amendment is properly met, law enforcement can conduct a warrantless search or seizure. Some notable exceptions justifying warrantless searches and seizures are exigent circumstances, search incident to arrest, plain view, and consent.[2] Continue reading

Burdens, Benefits, or Both? The Impact of Chief Justice Roberts’s June Medical Concurrence on Courts’ Analyses of Abortion Regulations

Benjamin M. Parks

I. Introduction

In 2014, the Louisiana Legislature passed Act 620, or Louisiana’s Unsafe Abortion Protection Act.[1] The law’s basic requirement was that any physician providing abortions in the State of Louisiana had to obtain admitting privileges at a hospital within 30 miles of the location where that doctor performed abortions.[2] Act 620 defined “admitting privileges” as being a member “of the medical staff of a hospital” and having “the ability to admit a patient and to provide diagnostic and surgical services to such patient.”[3] Those who offered abortion services without admitting privileges could face up to $4,000 in fines for each violation.[4] Like most abortion regulations, the Act was not without controversy.[5] Opponents of the Act, including the Center for Reproductive Rights, characterized the law as a way for the State of Louisiana to restrict access to abortion[6] because abortion providers who could not obtain admitting privileges would be required to shutter their clinics.[7] Proponents of the Act argued that it protected women’s health and safety by ensuring that abortion-providing physicians with admitting privileges could treat their patients in hospitals should any complications arise from an abortion procedure.[8] Continue reading

Overbroad or Overboard? Reconsidering the Fifth Circuit’s Application of the Realistic Probability Test in Light of Recent Contrary Opinions

Danielle Grote

In an unusual turn of events last summer, U.S. Fifth Circuit Court of Appeals Judge James E. Graves, Jr. wrote the majority opinion in Alexis v. Barr, then separately wrote a concurrence criticizing his own opinion.[1] Writing for the majority, Judge Graves denied in part and dismissed in part petitioner Alexis’s request for review of the Board of Immigration Appeals (BIA) order affirming an immigration judge’s removal order.[2] In his concurrence, Judge Graves explained that he felt bound by Fifth Circuit precedent in writing the opinion; however, he found the result to be both “illogical and unfair.”[3] At issue in the case was whether Alexis’s conviction under Texas law for possession of cocaine qualified as a controlled substance offense under federal law, making him, a noncitizen, removable from the United States.[4] To answer that question, courts apply a “categorical approach” in which they compare a state criminal law statute to the federally recognized, generic definition of the crime, to determine whether the state law is a categorical match.[5] Where a match is found, certain federal law consequences are triggered, including immigration consequences.[6] In this case, the immigration judge, the BIA, and the Fifth Circuit all agreed that the definition of cocaine is broader under Texas law than federal law.[7] In most circuits, the inquiry would have ended there: the court would declare the Texas law overbroad, and refrain from applying federal immigration consequences. Instead, Judge Graves went on to apply unique Fifth Circuit precedent which dictates that, in order to establish overbroadness, a petitioner must also show a “realistic probability” that Texas will prosecute conduct that falls outside the generic, federal definition of the crime, and ultimately found that Alexis failed to meet that test.[8]

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Section 230: Should the Interactive Computer Service Provider Shield Be Repealed?

Katherine Fruge Corry

During a joint session of Congress convened on January 6, 2021, to count the electoral votes and confirm the electoral victory of President Joseph Biden, a radical faction of Trump supporters stormed the Capitol building in an unsuccessful attempt to thwart the democratic process.[1] Tragically, several lives were lost in connection with these activities.[2] Despite the attack, democracy prevailed when order was restored to the Capitol, and President Biden was formally declared victor of the 2020 Presidential election, in accordance with the will of American voters.[3] Two days later, Twitter, Facebook, Snapchat, and Instagram, among others, permanently or indefinitely suspended former President Donald Trump’s social media accounts.[4] In the aftermath of these suspensions, media consumers throughout the world could hear the resounding silence. To many, the silence ushered in relief, and an end to a stream of election misinformation emanating from Donald Trump’s social media accounts.[5] For others, these actions were seen as an Orwellian precedent for a broader framework towards censorship of conservatives by Big Tech companies.[6]

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