Levy v. Sterling Holding Co., LLC

OPINION OF THE COURT

RENDELL, Circuit Judge.

Mark Levy filed a shareholder derivative suit on behalf of Fairchild Semiconductor International, Inc. (“Fairchild”) against Sterling Holding Company, LLC (“Sterling”) and National Semiconductor Corporation (“National”) for disgorgement of short-swing profits, pursuant to section 16(b) of the Exchange Act of 1934. Na tional and Sterling contend that two separate SEC Rules, 16b-3 and 16b-7, exempt them from section 16(b) liability. When this case was before us previously, at the motion-to-dismiss stage, we ruled that neither exemption applied here.…