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0 pointsstaticautomatic6y ago0 comments

As a jury consultant who's worked on a lot of securities and M&A-gone-wrong litigation, I don't understand why you think it would be beneficial for pitch deck stuff to go into a disclosure. If I were a defendant accused of making misrepresentations, I'd most likely want the pitch deck kept out. "Pitch deck stuff" is aspirational, to put it charitably. A defendant would ideally want to take the opposite position-- that it made only bullshit-free, clear-eyed representations about upside prospects and downside risk.

Also, I totally disagree about the evidentiary issue and would venture to say you're wrong. First of all, the idea that you'd need to cram a pitch deck into a filing in order to get it into evidence is downright silly. A defendant could easily get it into evidence through a fact witness or PMQ. Second, and more importantly, you wouldn't want to do it in anticipation of litigation because you'd lose any control you might otherwise have had over its admissibility (a filing like that would be pretty much guaranteed to come into evidence). Third, and relatedly, you wouldn't want to do it because, pursuant to my second point, it's then going to come into evidence in all of your cases. As they say, the record is forever.

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dctoedt6y ago

> As a jury consultant who's worked on a lot of securities and M&A-gone-wrong litigation

Plaintiff- or defense side?

> If I were a defendant accused of making misrepresentations, I'd most likely want the pitch deck kept out.

That's never gonna happen (keeping it out), so good defense counsel will grasp the nettle and get out in front of the issue.

Also (something I didn't mention before but should have): There's a jury-psychology benefit to being able to say, in effect, we submitted all this to the SEC, and they approved the registration. It's analogous to why patent applicants are well-advised to tell the USPTO about all the prior art that they know of — so that at trial, the patent owner's trial counsel can respond to the infringer's counsel with, yeah, we know about that prior art, because WE TOLD THE EXAMINER about it, and s/he issued the patent, so who ya gonna believe — this infringer's BS argument, or the government expert who was tasked by law with issuing only valid patents? That helps fend off infringers' invalidity challenges.

> "Pitch deck stuff" is aspirational, to put it charitably.

I perused the S-1; at first glance, that pitch-deck stuff is exactly what I imagine WeWork's litigation counsel might affirmatively want the judge, the judge's law clerk, and/or the jury to see — and, at trial, for an expert witness to be able to use as a visual aid in explaining the value proposition to the jury. (I've never done securities litigation, but I used to do IP litigation for complex technologies, where similar principles apply.)

> A defendant could easily get it into evidence through a fact witness or PMQ.

True, but again, it's always nice to be able to point out to the judge/law clerk/jury that this is what was disclosed to the SEC, and that the SEC approved the registration. Sure, legally that fact has very little weight; psychologically, though, it can't hurt and it costs essentially nothing. (You do have to make sure it's factually unchallengeable, but top-flight securities counsel will do their best to achieve that anyway.)

staticautomaticOP6y ago

> Plaintiff- or defense side?

On the whole I do more defense work, but plenty of both. For securities, more often defense. For M&A gone wrong, more often plaintiff.

I take your point about getting out ahead of the issue, but I'm not convinced that it's as powerful an argument as you think it would be, and I think it introduces other risks. Since you're familiar with IP litigation, you're no doubt aware that patents get invalidated by juries all the time in trials where plaintiff counsel makes that argument.

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