Securities — Sanctions — Waiver of PSLRA’s Mandatory Sanctions Review Enforced
The Private Securities Litigation Reform Act of 1995 re-introduced mandatory Rule 11 sanctions (if a violation is found), just two years after the 1993 amendment to Rule 11 made sanctions discretionary. To enforce this mandate, the statute also dictates that the Court must undertake a Rule 11 review at the end of the case. 15 U.S.C. § 78u-4(c)(1) provides that, "upon final adjudication" of a private securities action, "the court shall include in the record specific findings regarding compliance by each party and each attorney representing any party with each requirement of Rule 11(b) of the Federal Rules of Civil Procedure as to any complaint, responsive pleading, or dispositive motion." That did not happen in In re Charter Commc’ns, Inc., Secs. Litig., 519 F.3d 730 (8th Cir. 2008). Instead, the prevailing defendant explicitly waived all rights to claim that the plaintiff did not honor its Rule 11 obligations. The Eighth Circuit upheld this waiver, finding that it did not affect appealability of the judgment (which lacked any Rule 11 findings or conclusions) and did not require that the appeals court undertake a Rule 11 analysis:
• “Because the statute does not state that the required findings must be part of the judgment, and because Rule 11 issues are often decided after final judgment, the absence of the required findings did not affect either the appealability or the validity of the district court's Rule 54(b) final judgment. See Bondiett v. Novell, Inc., 141 F.3d 1184 (table), 1998 U.S. App. LEXIS 7091, 1998 WL 166243, at * 1 (10th Cir. 1998).”
• “When Rule 11(b) issues have been raised in cross appeals by prevailing parties in actions to which the PSLRA applied, the few reported cases differ as to whether the absence of the statutory findings required a remand, or whether the court of appeals could decide the Rule 11(b) issue despite the absence of district court findings. Compare Rombach v. Chang, 355 F.3d 164, 178 (2d Cir. 2004), with Dellastatious v. Williams, 242 F.3d 191, 197 n.5 (4th Cir. 2001). However, neither a Rule 11(b) nor a § 78u-4(c) issue was raised in this case.”
• “Although Congress in the PSLRA clearly intended to reduce judicial discretion to ignore or not sanction Rule 11(b) violations, we conclude that the Rule 11(b) issue may still be waived on appeal, either when it is not timely raised by any party or when, as here, it is affirmatively waived by the parties who prevailed in the district court. Indeed, a broader reading of § 78u-4(c) might raise issues under Article III, Section 2, of the Constitution, which limits our judicial power to "Cases" and "Controversies."
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