Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
froggmister
Re: None
Saturday, November 18, 2023 2:46:09 PM
Post#
648653
of 654707
SNO 2023 DCVax-L discussion transcript from PeerView X account, courtesy ATLinsider.
Note - I did the best I could with Dr. Ashkan's accent.
1:03:48: Manmout Ahluwalia: …there is also work with DCVax which Dr. Brem was involved with that study. Dr. Brem, do you want to highlight the data from that…
Dr. Stephen Brem: We have an expert, Dr. Keyoumars Ashkan from London who is the second author to Linda Liau on our paper in JAMA Oncology this year and I was talking with him before the meeting and things are moving forward, and…do you want to comment?
Dr. Ashkan: Thank you very much Steve. Yes, most of you may have heard about DCVax which is a personalized form of treatment. What was very specific in Dr. King’s presentation was that the many difficulties of glioblastomas is that they are very heterogeneous – no two tumors are the same. So what does that mean? So surgical therapies – and I’m a surgeon – can never be the answer because we cannot resect every single cell. You’ll remember that there were cases of spinal cord GBM, and people transacted about the core, and guess what? There is still GBM many many years later. And secondly because they are so heterogeneous the blanket of treatment, radiotherapy, chemotherapy cannot work because you are dealing with an extremely difficult tumor. The way to address that would be to make the treatment totally personalized to that patient. And in my mind there’s nothing stronger than using the patient's own tumor to produce the treatment, and there’s nothing stronger in my mind than immunotherapy, just like we managed to achieve with COVID. So in view of that you may have seen the results which were published last year in JAMA Oncology which showed that in newly diagnosed GBMs there was an average of a 3 month overall survival benefit compared to external controls, and in the methylated cohort that was 9 months. There was also in recurring GBMs, there was evidence of survival benefit over 6 months and was the first study in 28 years to show an actual benefit in recurring GBM that we haven’t seen elsewhere.
So obviously the next step is to get this drug approved in the UK, where it seems a bit simpler, more efficient pathway to approval which is good news, and we are trying to get the drug approved first in the UK and then beyond that we can move on to the US’s FDA, ect., and so as we speak we are preparing submissions to the MHRA, which is the UK version of the FDA, for regulatory approval and hopefully in the next few months we will hear back. So that was a very quick statement, thank you very much.
Sad but true. I think people tend to confuse fear of a bully with respect for power.
Maybe there is hope. I do not know this to be a fact but when Marza Capone divorced Al Capone after his conviction, she changed her name to Mascarpone and is now loved by bakeries and kitchens everywhere.
Maybe 3 different KG videos. We need transcripts. Please , Froggmister are you there?
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173396788
Chiugray - I am right there with you. It seems so many positive pieces are converging. A denial of the MTD would be glorious.
learningcurve2020,
I don’t know anything about seating at the ASMs as I have never been to one. Maybe you could buy a share or two on Monday and let me know where they have you sit. My guess is that Mr. Cofer Black would have a special place for you; ). Best wishes.
I guess you have to admire him, he's stealing from investors and openly admitting what he's doing. Sort of a reverse Robin Hood, steals from the poorer investors to make himself richer. However he has a good side, donating a half billion to Harvard who's a little beholding to him, when he asks.
One of the problems in our society is that people in power positions are often respected, even when their power is derived from illegal activities. Mafia Don's are certainly one example, Dictators all over the world, in the old days it was people like Al Capone, today there are many others, including many of our most prominent politicians and judges.
Year's ago I worked with an executive who routinely stretched the truth. It reached the point where people said that if you wanted to know if he's lying, just watch him, his lips move. Sadly it's people like this who are promoted as they're careful to tell those above them what they want to hear, whether it's true or not.
Gary
Maybe the ball is rolling already. Everyday I appreciate more the boldness of Linda Powers actions. Suing 7 market makers may be the snowball starting to roll down a steep snowy mountainside.
Re: None
Saturday, December 09, 2023 7:24:48 PM
Post#
654664
of 654700
"Hope for Wayne" - Stage 4 Glioblastoma Multiforme.
https://www.justgiving.com/crowdfunding/mercy-cuthbertson?utm_term=eAGe3V9Wr
1 day ago
May 2023 changed the course of our family forever. Our dad, Wayne Redlick, was diagnosed with a very aggressive brain cancer known as Stage 4 Glioblastoma Multiforme.
June 8, dad underwent emergency brain surgery at the UofA Hospital in Edmonton where 100% of the tumour was removed. Following a short recovery, dad was put into what the medical system refers to as “standard of care” whereby he received 6 weeks of chemoradiation (35 treatments in total) which was to be followed by 6 cycles of chemotherapy over the course of 6 months.
September 22, dad began chemotherapy and was able to make it through his first 2 cycles. Unfortunately he was unable to continue as his health began to quickly decline.
Late September until the end of November, our family encountered many emergency hospital visits (from home via ambulance) until dad was finally admitted into the Grande Prairie Regional Hospital on Monday, November 27 where he remains today. His decline came with getting weaker each day, eating and drinking less, very unstable on his feet and finally unable to walk and barely lift his arms and legs.
During this time, multiple CT Scans and MRI’s were performed showing a significant amount of brain swelling in the surgical cavity, however, inconclusive as to what was causing the swelling.
Wednesday, November 29, dad was air-ambulanced to the U of A Hospital where he had a PET Scan which determined that 2 new tumours were regrowing. Dad’s oncologist and neurosurgeon determined that operating again is necessary BUT it will not stop the cancer from continuing to grow aggressively and quickly.
Wednesday, December 13 dad is scheduled for surgery again at the UofA Hospital in Edmonton.
There is a very high probability that in this surgery some of the tumour(s) tissue will remain and will continue to spread. This leads us to our next and most likely hope of prolonging dad’s time with us…
The neurosurgeon will remove enough of the tumour(s) to proceed with a successfully proven immunotherapy treatment offered ONLY in the United Kingdom, known as Dendritic Call Vaccination or DCVax-L. DC-Vax-L is a personalized vaccine which is produced using the individuals tumour tissue. The treatment has shown good results in a recent Phase III trial.
How do we get this immunotherapy treatment?
Thanks to a lot of searching and inquiries, our family came to learn about this treatment.
Unfortunately, though, it is not available in Canada. But it is widely known and encouraged by many Canadian investigators and the medical team members working with dad, including his neurosurgeon. They firmly believe that this is the only treatment that could help him at this point. We know of a gentleman, first hand, in Edmonton that is alive 8 years later as a result of the DCVax. He is only one of many success stories. Saying that, our family has made the decision to move forward with this procedure.
Following his upcoming surgery, dad will have a minimal amount of recovery time in Edmonton before he is on his way to the United Kingdom where they will manufacture this vaccine specifically to his cancerous cells. The challenges that will come with getting dad across the world are very time sensitive but our family will take this on, without question.
Why are we asking for help?
Each vaccine dosage costs $36,600 CA ($25,000 EUR)
A minimum of 7 doses over 12 months are required to complete this treatment.
All vaccines are administered in the United Kingdom
Total medical cost alone will amount to $256,000 CA ($175,000 EUR)
If you know our dad, you will know that putting his family and good friends above himself has always been his way - it’s our time, as his family, to return that favour to him. Sadly, our family has walked this journey into Glioblastoma for 7 months, however we didn’t have an understanding of how aggressive this cancer is until now.
If your family has been touched by this cancer and is looking for alternatives, see these links.
To learn more about Dad’s cancer - Stage 4 Glioblastoma Multiforme (Brain Cancer):
https://www.mdanderson.org/cancer-types/glioblastoma.html
To learn more about the DCVax, link to this medical journal publication with details: https://jamanetwork.com/journals/jamaoncology/fullarticle/2798847?=1
From the bottom of our hearts, we thank each of you for any help you can give.
NWBO
Northwest Biotherapeutics Inc (QB)
0.7311
-0.0289 (-3.80%)
Volume: 1,237,564
Day Range: 0.725 - 0.7522
Bid: 0.7311
Ask: 0.74
Last Trade Time: 4:00:00 PM EST
Total Trades: 529
1D
1M
3M
6M
1Y
5Y
Chart for Northwest Biotherapeutics Inc (QB)
NWBO Detailed Quote
Recent NWBO News
Form 4 - Statement of changes in beneficial ownership of securities • Edgar (US Regulatory) • 12/02/2023 01:31:35 AM
Form 8-K - Current report • Edgar (US Regulatory) • 11/16/2023 10:11:54 PM
Epazz, Inc. (OTC Pink: EPAZ) ZenaDrone Demonstration to Defense Departments of UAE and Saudi Arabia • InvestorsHub NewsWire • 11/15/2023 12:19:31 PM
Form 10-Q - Quarterly report [Sections 13 or 15(d)] • Edgar (US Regulatory) • 11/09/2023 09:30:39 PM
Epazz, Inc. (OTC Pink: EPAZ) US Navy Collaboration ZenaDrone 1000 • InvestorsHub NewsWire • 11/09/2023 01:00:34 PM
Epazz, Inc. (OTC Pink: EPAZ) US Navy Collaboration ZenaDrone 1000 Extreme Weather Demo • InvestorsHub NewsWire • 11/07/2023 12:29:43 PM
Form 10-Q - Quarterly report [Sections 13 or 15(d)] • Edgar (US Regulatory) • 08/09/2023 08:36:14 PM
Nightfood, Inc. (OTCQB: NGTF) now in Sonesta International Hotels Multiple Brands • InvestorsHub NewsWire • 03/13/2023 11:35:55 AM
More NWBO News
InvestorsHub NewsWire
CGrowth Capital Inc. Granted 7 New Prospecting Licenses by The Ministry of Minerals and Mining Commission of Tanzania • CGRA • Dec 8, 2023 1:53 PM
New Break Announces up to $1 Million Non-Brokered Private Placement Offering • NBRK • Dec 8, 2023 7:00 AM
FREEDOM HOLDINGS (FHLD) SHAREHOLDER UPDATE; Freedom, Holdings Inc symbol: FHLD 15C-211 nears final approval from FINRA • FHLD • Dec 8, 2023 6:10 AM
Nextech3D.ai Launches AI AD Network For Its Event Tech Platform Map DCEO to Demo Ad Network in Livestream TODAY at 2pm ET • NTAR • Dec 7, 2023 10:00 AM
New Break Identifies New Gold Bearing Structures at the Sundog Project in Nunavut • NBRK • Dec 7, 2023 9:30 AM
Aether Global Innovations Corp. and Idroneimages Ltd. To Hold An Online Networking Event Around Drone and UAV Beyond Visual Line of Site (BVLOS) Regulations on January 24, 2024 • AETH • Dec 7, 2023 9:28 AM
Start posting your company's news
Only $200 per official company press release!
© Copyright 2023
Follow InvestorsHub on Twitter! @investors_hub Like InvestorsHub on Facebook! See the latest blog posts from ADVFN on Medium!
About Us
Terms of Service
Privacy Policy
Advertise With Us
Data Accreditations
Disclaimer
FAQ
Handbook
Q&A Forum
Contact Us
Corporate Solutions
Educational Channel
Stock Market 101
Investor Help Forum
iHub NewsWire
Get InvestorsHub on the iOS App Store
Get InvestorsHub on the Google Play Store
You are logged in as ae kusterer
Enforcement is all that matters. Everything is noise.
I guess stay away from the snacks this year!
antitrust laws come to mind
The reason why these decade long allegations of naked shorting undermining NWBO’s stock prices are erroneous IMHO is twofold:
First, the company has never shown any tangible evidence of extensive naked shorting either in the form of failure to delivers, which is normally how naked shorts are tracked, or any other tangible market based evidence. This is unlike the spoofing allegations that has enough evidence to support a predicate for a lawsuit. And NWBO has never taken any legal action against naked shorting sellers despite continuing to make these claims. Where’s their evidence?
The second reason is without evidence in hand, any allegations of naked shorting must imply this is happening outside of the existing DTCC clearance system, where all trades are cleared and settled.
If there are criminals that possess enough sophistication to bypass the DTCC system undetected, then it would undermine the entire trading platform for the stock market. In the same way if currency counterfeiters could counterfeit at-will without detection, that would undermine the entire banking system.
I would also add, if these naked short sellers are so outside exchange system, then how does anyone know what the presumed naked short numbers are that get thrown around in this forum?
In my opinion, the naked short narrative is both used as a deflection to avert responsibility for management’s own weaknesses, and as an appetizing conspiracy theory that some enjoy believing because it provides an easily digestible explanation without the need for a more sophisticated understanding.
Below is AIChat’s response to a very simple question I asked about why naked short selling is difficult to go unreported:
1. Regulatory requirements: Stock exchanges and regulatory bodies have specific reporting requirements in place for short selling activities. Market participants, including brokers and traders, are generally required to report their short positions and provide necessary documentation. Failing to comply with these requirements can result in regulatory violations and penalties.
2. Market surveillance: Stock exchanges employ sophisticated surveillance systems to monitor trading activities and detect any suspicious or manipulative behavior, including naked short selling.These systems can track trading patterns, identify irregularities, and trigger investigations by regulatory authorities.
3. Investor scrutiny: Investors, especially institutional investors and activist shareholders, closely monitor market activities and scrutinize short positions. They often conduct their own research and analysis to identify any potential market manipulation, including naked short selling. If they suspect any irregularities, they may raise concerns and demand investigations.
4. Public disclosures: Stock exchanges require regular reporting and disclosure of trading activities, including short positions. These disclosures provide transparency and allow market participants to access information about short selling activities. This makes it difficult for naked short selling to go unnoticed or unreported.
5. Legal consequences: Engaging in naked short selling can have serious legal consequences. Regulatory bodies and stock exchanges actively enforce regulations and take disciplinary actions against violators. The fear of facing penalties, fines, or legal actions acts as a deterrent for market participants to engage in unreported naked short selling.
While it is possible for some instances of naked short selling to go undetected or unreported, the regulatory framework, market surveillance systems, investor scrutiny, and public disclosures collectively make it challenging for such activities to remain hidden for an extended period.
About DTCC:
The Depository Trust & Clearing Corporation (DTCC) and its subsidiary, the Depository Trust Company (DTC), play a role in tracking and monitoring securities transactions, including short selling. However, it's important to note that DTCC's primary function is to provide clearing, settlement, and custody services, rather than directly tracking naked short selling activities.
DTCC tracks short selling transactions through its automated systems and processes, which are designed to facilitate the efficient and accurate clearing and settlement of trades. When a short sale transaction occurs, DTCC records the details of the trade, including the quantity of shares sold short.
DTCC also maintains records of securities lending and borrowing activities, which are closely related to short selling. When shares are borrowed for short selling purposes, DTCC tracks the borrowing and lending of those shares to ensure proper delivery and settlement.
While DTCC tracks short selling transactions, it is important to note that monitoring for potential instances of illegal naked short selling is primarily the responsibility of regulatory bodies such as the Securities and Exchange Commission (SEC) and self-regulatory organizations like the Financial Industry Regulatory Authority (FINRA). These entities employ sophisticated surveillance systems and regulatory oversight to detect and investigate potential violations, including instances of illegal naked short selling.
DTCC cooperates with regulatory bodies by providing data and information related to short selling transactions, which can assist in their monitoring and enforcement efforts. By working together, DTCC and regulatory bodies aim to maintain market integrity and ensure compliance with securities regulations.
Thanks Ae Kusterer. That's an eye opening video. This Ken Griffin of Citadel character is not hiding his autocrat and hell with free markets belief at all. I bet if he had his way, we retail investors would all have our brokerage accounts put under conservatorship control like how Britney Spears' finances were.
Hyperopia,
I agree with you, this is how it is today. I just don't believe that it's how it needs to be.
Here's a question for you, if all of the staff at all the regulators merely read the JAMA peer reviewed article and were asked to vote at that point, I believe the results would overwhelmingly say, approve the vaccine. Perhaps a Phase 4 requirement to track each new patient would be included, but such decisions could be made year before the regulator will act on million page documents.
I know it will never come to this, but how about if we cut it down to 10,000 pages, even 100,000 would be a huge improvement. There is an old saying that goes something like, if you can't impress them with the facts, dazzle them with tons of bullshit. I'm not saying that what we're providing is bullshit, but it's bullshit that the regulators require what they do.
If there is one thing that the information you supplied from the FDA does prove is that the FDA provides many opportunities to speak with them. So many here try to make us believe that what the company does is independent of advice from the regulators, but I believe they all provide about the same access, and smart companies take advantage of it. I believe that all along NWBO has been a smart company. Clearly the company doesn't have the staff needed to do most anything themselves, I believe the regulators have given them a great deal of guidance and may even suggested contractors who could be of assistance in certain places.
Once DCVax-L is approved and NWBO has increasing revenue each quarter, perhaps the company will decide to dramatically expand, and be able to take on more tasks in house. That isn't a sure thing by any means, certainly they'll grow some, but the intent may still be to stay small and contract out with specialists whenever it's needed.
In my career I was only involved in developing a publication once. I was in one of six govt. agencies ordered to create something new for the Navy, a Technical Repair Standard, it was to be done without specific funding out of our overhead. Of the eight, ours was the only one to develop a document that was acceptable to headquarters, and we were funded to produce more. It was roughly 400 pages, so a drop in the bucket compared to anything for the FDA, but it was still scrutinized by higher authorities who accepted it. I supervised the group, who also had never done anything like this, but in the end we had become good at what we were doing. I'm not saying I didn't write many reports, memos, etc. but none of that was comparable to publishing, this was.
Gary
Could somebody boil down for me what Laws and regulations Kenneth C. Griffen just admitted to violating?
This year one of you guys said he'd bring frozen crappie so that should go good with the crab legs.
THE FAIR RULES OF BUSINESS ACCORDING TO KEN :
https://investorshub.advfn.com/boards/read_msg.aspx?message_id=173396580
https://t.co/DiGs9hrWYZhttps://t.co/beWotZwCB9 $nwbo @alphavestcap
— alphavestcapital.com (@alphavestcap) December 10, 2023
The Danish Dude
Re: None
Saturday, December 09, 2023 9:10:22 PM
Post#
654688
of 654690
News from Joshua Mitts regarding the outcome of Supreme Courts decision in the Slack v Pirani case, in which Laura Posner and Joshua Mitts have an interest since they wrote an Amicus Brief to Supreme Court regarding the need for tracing securities.
In short, this could potentially be the opening for Laura Posner to be able to expand the lawsuit NWBO v 7 Market Makers to include naked shorting.
BARD sums it up
This is an article about the feasibility of tracing shares in Section 11 claims after the Slack Techs., LLC v. Pirani case. The article discusses the tracing problem and how it can be solved using accounting conventions. It also discusses the potential impact of the PSLRA on tracing. In the end, the authors argue that tracing is feasible and can be done without the need for new legislation or SEC rules.
The article says that tracing of shares could be possible using accounting conventions like FIFO or LIFO. This would involve tracking the ownership of shares through a chain of transactions. If a company is naked shorting, it is selling shares that it does not own. This could be difficult to trace because the company would not be able to produce the shares if asked. However, if the tracing of shares revealed that a large number of shares were unaccounted for, it could be an indication that naked shorting was taking place.
https://clsbluesky.law.columbia.edu/2023/12/06/john-c-coffee-jr-and-joshua-mitts-can-section-11-be-saved-tracing-a-path-to-its-survival/?amp=1
As we argued in our amicus brief to the Supreme Court, tracing should be required in order to keep the potential liability proportionate to the size of the offering. In our view, the real issue is not whether tracing should be required, but how it should (and can) be done. Unless the tracing problem can be solved at the procedural level, Section 11 seems destined to become a little-used antique.
Clearly, issuers can find multiple ways to mix registered and unregistered securities into a common pool in order to complicate tracing, and courts have shown little or no willingness to accept purely statistical approaches that show only it was highly likely that the plaintiff’s shares were issued under the registration statement. Nonetheless, we believe that tracing is feasible (even though many commentators have scoffed at this possibility). This implies, in turn, that the problem can be solved without legislation or new SEC rules. We explain our answer in an article that we recently posted on SSRN and here summarize.
Conclusion
One of the attractions of our suggested approach is that it does not require legislation or even significant new SEC rules. If the court having a Section 11 action before it can be asked to schedule an early hearing at which it schedules any motion to dismiss that defendants wish to bring (and denies a dilatory defendant the right to file a later such motion), then defendants cannot delay or prevent the plaintiffs from obtaining discovery.
Because a motion to dismiss in a Section 11 case is unlikely to be successful, plaintiffs will experience little delay. The one juncture that remains critical is the readiness of FINRA and the SEC to give litigants access to CAT, and here the SEC can likely encourage FINRA without adopting any rules.
Although the SEC does not have direct regulatory authority over Section 11 claims, Section 28 of the Securities Act grants the SEC general exemptive authority to the extent that any such exemption “from any provision or provisions of this subchapter or of any rule or regulation issued under this subchapter, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.”[14] Arguably, the SEC could adopt a rule under this section which explicitly provides that standard accounting methods shall satisfy Section 11’s tracing requirement. Short of that step, a desirable approach would be for the SEC to produce a whitepaper or other interpretive guidance that makes clear its views that accounting methods are appropriate to apply to tracing in Section 11 cases. While courts will ultimately have the decision as to the procedures and conventions to be used, there seems little doubt that the judiciary would benefit from the SEC explaining its views on this topic.
As for discovery, here too the SEC can play a role. While the SEC’s final rules governing the Consolidated Audit Trail do provide that information held by the CAT, including customer identifying information, is discoverable,[15] the SEC could make clear to all (including FINRA) that these records must be produced to private litigants in the course of Section 11 litigation. Similar records are also collected by FINRA in a form known as the Electronic Blue Sheets, which are also subject to subpoena, and the SEC could similarly clarify that these should be produced without delay to private litigants.
These are the examples of the actions that the SEC could take immediately to ensure that Slack and its progeny do not result in a complete loss of standing, thereby leading to the death of Section 11 litigation. Seeking to avoid such an outcome would be fully consistent with the SEC’s mission of promoting investor protection.
The former article was based on this article from Joshua Mitts and John C. Coffee
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4644888
Abstract
On June 1, 2023, a unanimous Supreme Court held in Slack Techs. v Pirani that purchasers of securities must “trace” their shares to the registration statement that contains the alleged misstatement or omission in order to be able to assert a claim under Section 11 of the Securities Act of 1933. Here, we consider how tracing is to be performed. Many judges, academics, plaintiffs’ and defense attorneys still subscribe to the myth that it is impossible to trace chain of title for commingled securities in order to establish standing under Section 11. Unfortunately, this is a misguided, out-of-date assumption because enhanced data-reporting requirements and modern computing power can realistically solve this problem. With an accessible (both in terms of record-keeping and computing power) body of transaction records, it is possible to trace the chain of title for securities, using standard accounting methods like first in-first out (“FIFO”) or last in-first out (“LIFO”). We also consider practical litigation issues arising from tracing in Section 11 cases.
Bullish
BULLISH
ATL-DC is DCvax-L
The seating is usually fine, and they do a nice job at the ASM with the snack table.
Does anybody get seats at an ASM this year?
Still helps out here, whoever wins.
News from Joshua Mitts regarding the outcome of Supreme Courts decision in the Slack v Pirani case, in which Laura Posner and Joshua Mitts have an interest since they wrote an Amicus Brief to Supreme Court regarding the need for tracing securities.
In short, this could potentially be the opening for Laura Posner to be able to expand the lawsuit NWBO v 7 Market Makers to include naked shorting.
BARD sums it up
This is an article about the feasibility of tracing shares in Section 11 claims after the Slack Techs., LLC v. Pirani case. The article discusses the tracing problem and how it can be solved using accounting conventions. It also discusses the potential impact of the PSLRA on tracing. In the end, the authors argue that tracing is feasible and can be done without the need for new legislation or SEC rules.
The article says that tracing of shares could be possible using accounting conventions like FIFO or LIFO. This would involve tracking the ownership of shares through a chain of transactions. If a company is naked shorting, it is selling shares that it does not own. This could be difficult to trace because the company would not be able to produce the shares if asked. However, if the tracing of shares revealed that a large number of shares were unaccounted for, it could be an indication that naked shorting was taking place.
As we argued in our amicus brief to the Supreme Court, tracing should be required in order to keep the potential liability proportionate to the size of the offering. In our view, the real issue is not whether tracing should be required, but how it should (and can) be done. Unless the tracing problem can be solved at the procedural level, Section 11 seems destined to become a little-used antique.
Clearly, issuers can find multiple ways to mix registered and unregistered securities into a common pool in order to complicate tracing, and courts have shown little or no willingness to accept purely statistical approaches that show only it was highly likely that the plaintiff’s shares were issued under the registration statement. Nonetheless, we believe that tracing is feasible (even though many commentators have scoffed at this possibility). This implies, in turn, that the problem can be solved without legislation or new SEC rules. We explain our answer in an article that we recently posted on SSRN and here summarize.
Conclusion
One of the attractions of our suggested approach is that it does not require legislation or even significant new SEC rules. If the court having a Section 11 action before it can be asked to schedule an early hearing at which it schedules any motion to dismiss that defendants wish to bring (and denies a dilatory defendant the right to file a later such motion), then defendants cannot delay or prevent the plaintiffs from obtaining discovery.
Because a motion to dismiss in a Section 11 case is unlikely to be successful, plaintiffs will experience little delay. The one juncture that remains critical is the readiness of FINRA and the SEC to give litigants access to CAT, and here the SEC can likely encourage FINRA without adopting any rules.
Although the SEC does not have direct regulatory authority over Section 11 claims, Section 28 of the Securities Act grants the SEC general exemptive authority to the extent that any such exemption “from any provision or provisions of this subchapter or of any rule or regulation issued under this subchapter, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.”[14] Arguably, the SEC could adopt a rule under this section which explicitly provides that standard accounting methods shall satisfy Section 11’s tracing requirement. Short of that step, a desirable approach would be for the SEC to produce a whitepaper or other interpretive guidance that makes clear its views that accounting methods are appropriate to apply to tracing in Section 11 cases. While courts will ultimately have the decision as to the procedures and conventions to be used, there seems little doubt that the judiciary would benefit from the SEC explaining its views on this topic.
As for discovery, here too the SEC can play a role. While the SEC’s final rules governing the Consolidated Audit Trail do provide that information held by the CAT, including customer identifying information, is discoverable,[15] the SEC could make clear to all (including FINRA) that these records must be produced to private litigants in the course of Section 11 litigation. Similar records are also collected by FINRA in a form known as the Electronic Blue Sheets, which are also subject to subpoena, and the SEC could similarly clarify that these should be produced without delay to private litigants.
These are the examples of the actions that the SEC could take immediately to ensure that Slack and its progeny do not result in a complete loss of standing, thereby leading to the death of Section 11 litigation. Seeking to avoid such an outcome would be fully consistent with the SEC’s mission of promoting investor protection.
Abstract
On June 1, 2023, a unanimous Supreme Court held in Slack Techs. v Pirani that purchasers of securities must “trace” their shares to the registration statement that contains the alleged misstatement or omission in order to be able to assert a claim under Section 11 of the Securities Act of 1933. Here, we consider how tracing is to be performed. Many judges, academics, plaintiffs’ and defense attorneys still subscribe to the myth that it is impossible to trace chain of title for commingled securities in order to establish standing under Section 11. Unfortunately, this is a misguided, out-of-date assumption because enhanced data-reporting requirements and modern computing power can realistically solve this problem. With an accessible (both in terms of record-keeping and computing power) body of transaction records, it is possible to trace the chain of title for securities, using standard accounting methods like first in-first out (“FIFO”) or last in-first out (“LIFO”). We also consider practical litigation issues arising from tracing in Section 11 cases.