United States Third Circuit

In a shareholder derivative action seeking disgorgement by defendant companies of short-swing profits, summary judgment for defendants is affirmed where: 1) a judicial opinion construing an agency's regulation does not necessarily bar a court from giving effect to a subsequent, different interpretation by the agency, unless, according to the earlier opinion, the judicial construction flowed unambiguously from the terms of the regulation; 2) the statutory interpretations embodied in two new SEC rules were proper constructions of the statutes; and 3) the application of new rules did not give rise to any retroactivity concerns.

Appellate Information

• Argued 03/24/2008
• Decided 10/01/2008
• Published 10/01/2008

Judges

• Before:  McKEE, RENDELL, and TASHIMA, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Jeffrey S. Abraham, Esq. [Argued], Abraham, Fruchter & Twersky, New York, NY, for Plaintiff-Appellant Mark Levy.


• For Appellees:
  
• Carolyn H. Feeney, Esq., Steven B. Feirson, Esq. [Argued], Philadelphia, PA, for Defendant-Appellee Sterling Holding Company, LLC., Paul Vizcarrondo, Jr., Esq., Wachtell, Lipton, Rosen & Katz, New York, NY, for Defendant-Appellee National Semiconductor Corporation., Megan W. Casio, Esq., Morris, Nichols, Arsht & Tunnell, Wilmington, DE, for Defendant-Non-Participating Fairchild Semiconductor International, Inc., Allan A. Capute, Esq. [Argued], Securities & Exchange Commission, Washington, DC, for Securities and Exchange Commission Amicus Appellee.