Merrill Lynch Prevails in Auction-Rate Appeal

Jay B. Kasner Paul J. Lockwood Scott D. Musoff

In the first auction-rate securities (ARS) class action arising from the market collapse to be decided by an appellate court, Skadden won an appeal for Merrill Lynch in connection with the company’s alleged manipulative conduct related to the ARS market. This was the lead case in a multidistrict litigation arising out of that market’s collapse in 2008. On November 14, the U.S. Court of Appeals for the Second Circuit agreed with the lower court that Merrill sufficiently had disclosed the conduct that was alleged to be manipulative, despite an SEC brief calling for the decision to be reversed — a move which could have exposed a wide range of financial institutions to liability.