Category: Uncategorized

I Should Note That This Supremes Decision Means A LOT LESS… That Some Will Say It Does: On Securities Law Liability, For “Pure Silence”

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There will doubtlessly be some commentators who will say this is a big shift in the federal securities law jurisprudence announced this morning.

It isn’t. [In fact, it is not even worth naming the case. And to be clear, this is a defense Elizabeth Holmes tried to put forward — but she had created affirmative duties to disclose for herself, when speaking to her investors, because she had previously openly lied about so many of these material matters — like whether the device even worked. Smile.]

This new case merely holds that one may remain silent, where no special circumstances require affirmative speaking — speaking, to make the other statements made, not misleading by omitting context.

That’s all it holds. If someone buys a security without any disclosures, from someone else, without asking any questions, and without a disclosure document (in an exempt transaction, for example), there can be no 10b-5(b) liability — due to the failure of the buyers’ diligence.

Unsurprising, and that’s been understood to be the well settled law — for at least four decades. Since I practice M&A in the life sciences, this all comes up pretty often. Now you know. Onward, into the sunshiny Friday air.

Smile.

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The Feds Renew Their Motion To Toss Out All Of Texas’s Specious Claims Before USDC Judge Moses — In The Land Razor Wire Cases, In Del Rio…

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We are nearing the end of the line for the land based razor wire cases in West Texas. This motion to dismiss was filed overnight in the trial court, but the Fifth Cir., on appeal, is awaiting an answer from Texas (also by tonight) — as to why the below pull quote DOES NOT definitively bounce Gov. Abbott and AG Paxton out on their ears. [Hint: it does.]

It is truly all over now, except for the caterwauling by Texas — and the cruelty of maimed kids, near the shore on the Rio Grande, of course. Here’s that cogently-argued motion to end Texas’s claims:

“…The federal government enjoys complete sovereign immunity except as it has consented to be sued and consented to submit to liability.” In re Supreme Beef Processors, Inc., 468 F.3d 248, 255 (5th Cir. 2006) (en banc). A waiver of sovereign immunity must be “strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). Contrary to Texas’s assertion, see Compl. ¶ 22, 5 U.S.C. § 702 does not include “clear and unambiguous authorization” for state-law claims seeking equitable relief against the federal government. See PI Order at 19. Section 702 states:

“[a]n action in [federal] court… seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States.”

Especially when construing the provision in favor of the sovereign, the waiver of sovereign immunity properly is limited to suits arising under federal law and invoking federal-question jurisdiction under 28 U.S.C. § 1331….

Congress added the waiver language in 1976, see Pub. L. No. 94-574, 90 Stat. 2721, 2721, to largely “do away with the ultra vires doctrine and other fictions surrounding sovereign immunity.” Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985); see H.R. Rep. No. 94-1656 at 5 (1976); S. Rep. No. 94-966 at 5 (1976)….

In sum, Gov. Abbott and AG Paxton cannot win. This is a purely political Kabuki theater moment, unfolding in slow motion — by Texas, but one that is maiming and killing would-be asylees, day by day. Deplorable.

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With Earth Day Approaching… Paul Mirengoff Has A Sad, On…

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Well…. No surprise here.

Paul doesn’t like the international ruling against Switzerland, that its peoples are embed with a right to be free from avoidable environmental hazards — ones caused by anti-environmentalist policies, over decades.

Whether I think this particular one is a wise decision or not, is of no moment. The point is that we, and the Swiss, agreed to certain things as members of the UN, and the international community.

Paul ignores the fact that our remedy is to vote with our feet if we don’t like it.

Mirengoff would have us believe that some ill-defined, but all-powerful “new world order” is about to seize all individual freedoms inside Swiss borders (and US ones).

I seem to recall that the Swiss own more guns per capita than any nation outside of the US (though the vast majority of theirs are bolt action, single-shot hunting rifles — while ours are handguns). There is zero danger of the Swiss losing their freedoms.

Do go over and sit on your fainting couch (again), Paul. You take a minute. You need it — you’ve got what Biz Markie called… “the vapors“.

Heh.

Well — Hinderaker Is… RIGHT, Abut This Much: The GOP Will (Again) Die, On The Abortion Rights Hill, In 2024…

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Tangerine, in particular. [See John’s of tonight — he has finally admitted he was dead wrong about Arizona’s local politics.]

Proof they’ve gone… insane — barking mad? Today, when the GOP regulars in Arizona refused to allow the Democrats in the state legislature to move a bill to formally repeal that noxious 1864 “law” (from when Arizona was a mere territory!) which a moron GOP AZ Supreme Court judge decided trumps a bi-partisan law the whole legislature passed just two years ago… well, they’ve showed their stripes.

They cannot win in November in Arizona — not if the position is: abortion is in all cases unlawful.

Yep — John’s right. This is where 2020 died — and where 2022 died — for the national GOP races.

I am happy to wait now, until November, to see Arizona rid itself of these jokers and their malignant Kabuki theater antics. I’ll be down there again from mid December through mid January… laughing at the ritual suicide the GOP committed in November 2024 on the issue.

No fuss — no worries — we, blue democrats, in the most noble iteration of that term — will take it from here, kids… you cannot trust the GOP to handle real, adult issues. That’s the object lesson, indeed.

HILARIOUS — and now, even the dolt Hinderaker knows it — and admits as much.

Trump Is Getting Positively Buried — In NY AG Actions…

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So — the NY AG is crushing Tangerine, in post trial, and appeal motions.

It is a thing of graceful elegance and spare-ornation beauty.

Trump’s ex-CFO (Weisselberg) is a mill-stone around his neck, as he sinks into the ocean:

…Mr. Weisselberg has admitted that he perjured himself during discovery and the trial in this action. The Court is well within its authority to determine if Defendants and their counsel facilitated that perjury by withholding of incriminating documents. The Monitor has already been tasked with assessing Defendants’ internal controls, compliance functions and recordkeeping. The potential failure to properly produce documents in a legal proceeding relevant to the valuation of Mr. Trump’s triplex plainly falls within the ambit of her authority, and certainly within the power of this Court to safeguard the integrity of its own proceedings….

And even if Defendants’ myriad complaints had merit as to the Court’s ability to modify the Monitor’s duties or advance an inquiry after trial, the investigative matter remains open and the Court has the authority to appoint a special referee to conduct the inquiry. See In re Opioids Litig., No. 400000/2017, NYSCEF No. 9247 at 5 (Sup. Ct. Suffolk Cty. May 25, 2022)….

Defendants fail to even acknowledge this basic fact. Instead, counsel for Defendants, including counsel for Mr. Weisselberg, argue they “have no ‘knowledge’ that Mr. Weisselberg made false statements during the trial; to the contrary, many believe that Mr. Weisselberg only made such admissions because he was being threatened with life in prison.” NYSCEF No. 1711 at 3 n.2. It is clear that Defendants and their counsel are completely incapable of independently disclosing any impropriety and outside certification is the only means to get to the truth….

Flawless. Out.

Mirengoff Claims Mr. Biden Is “Disingenuously For”… Fairer Housing — And Affordability?!

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This is all because Tangerine see this issue as one-dimensional, only:

Trump openly courts racist landlords / slumlords. He and his father before him are/were among the biggest slumlords in New York. He sees this as an issue of needing to keep “un-nice” people, from “shit-hole countries” in their place.

He will frame the idea of fair housing as… yep, specious whyte replacement conspiracies.

So, Paul decides to draw the sting, and say Mr. Biden really wants more overlord power over regular Americans, in their decisions to refuse to rent to people, on racial grounds.

Paul knows Mr. Biden will run circles around Tangerine, on this, rightly painting Trump as a life-long avowed racist landlord.

In the 1990s, HUD and the EEOC sued Trump, proving that out of some 7,000 apartments he owned/owns in NYC, he had only two black families as tenants. This, in what is and was undoubtedly one of the most vibrant upscale professional metro-markets for people of color in the United States. He claimed he couldn’t “find” any “qualified” tenants of color.

This man is a 19th Century dyed in the wool racist — and Paul is shilling for him today. He said at a rally last weekend, that if re-elected, he will only allow immigration from the “NICE COUNTRIES“. One cannot even call that a dog whistle.

He despises people of color — no matter where they are from, how much they’ve achieved — or how they get here. Simply put, he’s a “whyte ameriKKKa only” adherent — a know-nuthin’.

D A M N.

Courtesy Of Rigby: We See The Conspiracy-Minded Conservatives — Like Hinderaker!

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Oh boy. You should check out Steve’s daily chart today, purporting to debunk the notion that conservatives and Republicans are more likely to believe conspiracy theories than liberals and Democrats. ”This is nonsense to anyone with common sense perception,” Steve opines.

But then John goes ahead and tacks on his thoughts on the matter, which (unintentionally, but also hilariously) serve to rebut the point Steve is trying to make.

I would also point out that, while all of the listed conspiracies to which liberals subscribe are absurd… a good share of the “conspiracy theories” which some conservatives believe are actually true.

Ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha ha!

Check out the comments for an even deeper dive into the madness.

Condor would add only that he started this site to avoid reading the comments over there, and to note his disagreements — while not encouraging more loons to engage over there.

So, Condor never reads comments at Powerline — but if you can manage to read them… without getting brain cancer… feel free, one and all!

Heh — out, grinning — again.

Taking Care Of The Earth Includes Protecting All Low Earth Orbital Planes…

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As we begin to think about Earth Day, we will note this story out of NASA.

Space debris has essentially enshrouded the Earth (over the 70 some years since Sputnik first flew) in a cloud of what would be, in many cases, lethal debris, some of it moving at over 10,000 mph.

The proliferation of commercial space operations, while welcome, will serve to generate new challenges, such as an operating environment more crowded with spacecraft — and correspondingly increased debris fields. Understanding the risks and benefits associated with this growth is crucial for space sustainability.  Do read it all:

…To address a rapidly changing space operating environment and ensure its preservation for generations to come, NASA released the first part of its integrated Space Sustainability Strategy, on Tuesday advancing the agency’s role as a global leader on this crucial issue.

“The release of this strategy marks true progress for NASA on space sustainability,” said NASA Deputy Administrator Pam Melroy. “Space is busy – and only getting busier. If we want to make sure that critical parts of space are preserved so that our children and grandchildren can continue to use them for the benefit of humanity, the time to act is now. NASA is making sure that we’re aligning our resources to support sustainable activity for us and for all.”

For decades, NASA has served as a proactive leader for responsible and sustainable space operations. Entities across the agency develop best practices, analytic tools, and technologies widely adopted by operators around the world. The new strategy seeks to integrate those efforts through a whole-of-agency approach – allowing NASA to focus its resources on the most pressing issues. To facilitate that integration, NASA will appoint a new director of space sustainability to coordinate activities across the agency….

Now you know — onward, grinning.

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