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Barrick Gold, which is already its largest shareholder with nearly 34 per cent, has negotiated a way out of the crisis.
In order to have sufficient standing to pursue the derivative suit, a shareholder plaintiff will have to show continuous share ownership, at the time of the alleged wrongdoing as well as the at the time of the lawsuit.
Some putative plaintiffs may satisfy this requirement, but not many, and most of the plaintiffs in whose name the options lawsuits have been brought lack the requisite standing (and for an additional comment about standing, see the note below about the Mercury Interactive shareholders’ derivative lawsuit); ions: The statute of limitations under Delaware law for shareholder derivative suits is three years.
Whether or not these other settlements represent a trend that might be increaing plaintiffs’ lawyers interest in filing shareholder derivative suits, the derivative lawsuits brought in connection with options timing allegations appear subject to numerous defenses or other practical limitations.
To name but a few of the defenses and limitations: : For many of the companies involved in the backdating scandal, the period during which the alleged misdating took place covers a large swath of time, in some cases going back to the early or mid 90’s.
Shareholders’ claims for alleged options timing misconduct more than three years’ prior to the spring or summer 2006 (when most of the lawsuits were filed) may well be time barred.