Welcome to A&O Shearman's Need-To-Know Litigation Weekly, which analyzes notable U.S. decisions, orders and developments each week in areas of Securities Litigation, Government/Regulatory Enforcement, M&A and Corporate Governance, Antitrust Litigation and IP Litigation. This weekly newsletter is intended to supplement our various publications and thought leadership concerning these important substantive areas.
Securities Litigation
Southern District Of New York Dismisses Securities Claims Against Cryptocurrency Exchange And Compels Remaining Claims To Arbitration
On May 7, 2026, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York dismissed federal securities claims against a large cryptocurrency exchange (the “Company”) and its CEO (collectively, “Defendants”) and compelled the remaining claims to arbitration. Joel Heabeart, et al., v. Coinbase, Inc., et al., No. 25-cv-9197-JSR (S.D.N.Y. May 7, 2026). Plaintiffs asserted claims against Defendants under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”) based on alleged misstatements concerning the collapse of a cryptocurrency called “LUNA” in May 2022. The Court dismissed the securities claims as untimely and insufficiently pleaded and compelled the remaining non-securities claims to arbitration.Read More
Northern District Of California Denies Class Certification, Holding Defendants Rebutted Basic Presumption Of Reliance
On April 21, 2026, Judge Susan Illston of the United States District Court for the Northern District of California denied class certification in a putative class action brought under the Securities Exchange Act of 1934 (the “Exchange Act”) against a battery technology company (“Company”) and its directors and officers. The Court denied class certification, holding that plaintiffs were not entitled to a presumption of reliance under Basic Inc. v. Levinson, 485 U.S. 224 (1988) (“Basic”), because defendants proved the alleged misstatement did not impact the price of the Company’s stock.Read More
Government/Regulatory Enforcement
House Committee On Oversight And Government Reform Opens Prediction Markets Insider Trading Probe
On May 22, 2026, House Committee on Oversight and Government Reform (“Committee”) Chairman James Comer opened an investigation into how users of prediction market platforms potentially are using nonpublic information to engage in insider trading. Chairman Comer has requested documents and information to assess how the platforms verify the identities of domestic and foreign account holders, enforce geographic restrictions, and monitor suspicious trading activity to guard against insider trading.Read More
DOJ And CFTC Charge U.S. Soldier For Insider Trading In Prediction Markets
On April 23, 2026, the U.S. Department of Justice (“DOJ”) and Commodity Futures Trading Commission (“CFTC”) announced separate enforcement actions against an active-duty member of the U.S. Army, alleging that the soldier utilized non-public information regarding classified U.S. operations related to the capture of Venezuelan President Nicolás Maduro to trade on Polymarket.com, a prediction market website.Read More
M&A and Corporate Governance
Delaware Supreme Court Affirms Dismissal Of As-Applied Equitable Challenges To Advance Notice Bylaws As Unripe
On April 29, 2026, the Delaware Supreme Court, sitting en banc, affirmed a pair of decisions by the Delaware Court of Chancery dismissing stockholder complaints seeking to assert as-applied equitable challenges to the adoption of advance notice bylaws. In re The AES Corporation and Owens Corning, Cons. No. 218, 2025, No. 257, 2025 (Del.). The Court held that plaintiffs’ challenges to the bylaws were not ripe for adjudication because the stockholders did not allege that they intended to nominate anyone to the boards and did not identify anyone else allegedly deterred by the provisions.Read More
Delaware Court Of Chancery Enforces California Forum Selection Clause In Employment Agreement With Stockholder, Notwithstanding Delaware Exclusive-Forum Bylaw
On April 21, 2026, Vice Chancellor Nathan A. Cook of the Delaware Court of Chancery granted a motion to dismiss breach of fiduciary duty claims asserted by Masimo Corp. (the “Company”) against its former CEO and board chairman, enforcing a California forum selection clause in defendant’s employment agreement. Masimo Corp. v. Kiani, No. 2024-1086-NAC (Del. Ch. Apr. 21, 2026). In so holding, the Court concluded that Section 122(18) of the Delaware General Corporation Law (“DGCL”)—adopted in 2024 following West Palm Beach Firefighters' Pension Fund v. Moelis & Co., 311 A.3d 809 (Del. Ch. 2024)—permitted corporations to agree to non-Delaware forum selection provisions in stockholder agreements, even if those provisions would require the adjudication of fiduciary duty claims in a non-Delaware forum.Read More
Antitrust Litigation
Fourth Circuit Vacates Preliminary Injunction Allowing College Football Players To Bypass NCAA Eligibility Rules
On April 3, 2026, Senior Judge Henry Floyd of the United States Court of Appeals for the Fourth Circuit, joined by Judges Harris and Benjamin, vacated a preliminary injunction issued by the United States District Court for the Northern District of West Virginia that had allowed four college football players to participate in the 2025–26 collegiate football season in contravention of the NCAA’s 5-year eligibility limitation, finding that the district court committed legal errors in its assessment of the players’ likelihood of success on the merits of their Sherman Act Section 1 claim challenging the NCAA’s eligibility rule. Robinson v. NCAA, No. 25-2003 (4th Cir. Apr. 3, 2026).Read More
Second Circuit Affirms Defunct Soccer League’s Antitrust Loss, Denies New Trial
On May 19, 2026, the U.S. Court of Appeals for the Second Circuit denied the now-defunct North American Soccer League’s bid for a new trial after a jury rejected its claims, concluding that plaintiff failed to prove a relevant antitrust market affected by the alleged conduct of defendants. North American Soccer League LLC v. U.S. Soccer Federation Inc., case number 25-1225. The Second Circuit affirmed the lower court’s judgment for Major League Soccer and the United States Soccer Federation. Plaintiff had accused the country’s premier soccer league and the sport’s governing body of rigging the league-sanctioning system to exclude it from the top tiers of U.S. men’s professional soccer. The U.S. District Court for the Eastern District of New York denied plaintiff’s request for a new trial, and the appellate court affirmed both the denial of a new trial and an earlier decision partially granting defendants summary judgment on the grounds that league participation rules were not per se unlawful and, thus, required proof of a relevant market and competitive harm in that market.Read More
Intellectual Property Litigation
USPTO Director Sends PTAB Unpatentability Decision To Rehearing Panel In Light Of Contrary Jury Verdict
In response to a request for a Director Review of a PTAB decision finding claims 1-4 and 6 of U.S. Patent No. 7,594,168 unpatentable, the Director of the United States Patent and Trademark Office (“USPTO”), on May 1, 2026, referred this review to a Delegated Rehearing Panel (“DRP”). The DRP is to determine whether petitioners had presented “meaningfully different evidence and arguments” to the PTAB compared to what had been presented to the jury in a district court action that reached a finding that patent had not been proven invalid. Facebook, Inc. v. Express Mobile, Inc., IPR2021-01226, Paper 65 (May 1, 2026). In referring this review, the Director of the USPTO stated that the PTAB panel “effectively disregard[ed]” the September 16, 2025 Memorandum re prior findings of fact and conclusions of law. IPR 2021-01226, Paper 65 at 4. The Memorandum requires the Board to explain why a different outcome is warranted when it reaches a finding or conclusion different from a prior adjudication, with a more detailed explanation required when the same or substantially the same evidence or arguments were presented.Read More
Federal Circuit Affirms No Infringement in Pharmaceutical Patent Dispute Over pH Measurement Conditions For Epoprostenol Composition
On May 13, 2026, the U.S. Court of Appeals for the Federal Circuit (Judges Reyna, Taranto, and Stoll) affirmed a decision of the U.S. District Court for the Northern District of West Virginia finding that defendant does not infringe U.S. Patent Nos. 8,318,802 and 8,598,227 (collectively, the “’802” and “’227” patents), either literally or under the doctrine of equivalents. Actelion Pharmaceuticals Ltd v. Mylan Pharmaceuticals Inc., No. 2024-1641 (Fed. Cir. May 13, 2026). The decision addresses how pH measurements recited in pharmaceutical patent claims should be interpreted, and the application of prosecution history estoppel and the disclosure-dedication rule to bar equivalents-based infringement theories.Read More