Olshan Represents Moab Partners, L.P. in Landmark Securities Case Before U.S. Supreme Court

Olshan is co-counsel for institutional investor Moab Partners, L.P., the lead plaintiff-investor in a putative class action against Macquarie Infrastructure Corporation, in a landmark securities case pending before the U.S. Supreme Court. The case, encaptioned Macquarie Infrastructure Corp., et al. (Petitioners) v. Moab Partners, L.P., et al. (Respondents) (no. 22-1165), is expected to define the qualitative information that public companies must disclose in their Management’s Discussion & Analysis (”MD&A”) in their Form 10-Ks and 10-Qs. The case concerns the interplay between Item 303 of SEC Regulation S-K and the anti-fraud provisions in the Securities Exchange Act of 1934, Section 10(b) and SEC Rule 10b-5 thereunder. The central question in the case is whether a public company’s disclosure in its periodic reports of some, but not all, of the trends and uncertainties known to management that materially affect the business give rise to liability and a private cause of action under Section 10(b) and Rule 10b-5. The case has drawn the attention of high-profile amici, including the Solicitor General of the United States, former SEC officials, the Atlantic Legal Foundation, the Washington Legal Foundation, the Society for Corporate Governance, Consumer Advocates, institutional investors, and law and business professors. Oral argument is scheduled for January 16. The case is before the U.S. Supreme Court following the Second Circuit’s reversal of the U.S. District Court for the Southern District of New York’s decision granting Macquarie’s motion to dismiss Moab’s securities claims.  The U.S. Supreme Court granted certiorari, in part, because of a circuit split on the question of whether the omission of a mandatory Item 303 disclosure may support a private claim under Section 10(b) and Rule 10b-5, assuming the other elements of a Section 10(b) violation are adequately pled, such as materiality and scienter. The Olshan team is headed by Chair of Litigation Lori Marks-Esterman and litigation partner John Moon.