The 10b-5 Daily

Looking for some fun beach reading this summer? Stay away from these articles! But if you want some interesting examinations of securities class action law, here are a few of the latest offerings.

1) The Santa Clara Law Review has an empirical study entitled “Securities Class Action Settlements” by Mukesh Bajaj, Sumon Mazumdar, and Atulya Sarin (43 Santa Clara L. Rev. 1001 (2003)). The authors studied 1203 federal case filings and 92 state court filings, spanning from 1988 to 1999, to draw conclusions about dismissal and settlement trends.

Quote of note: Among other conclusions, the authors found: (a) “The settlement process, as well as the rate of dismissals, has declined since the passage of the PSLRA;” (b) “Quick settlements generally involve relatively small settlement amounts;” (c) “Mean and median settlements have increased in the post-PSLRA period;” and (d) “Cases naming accounting firms as co-defendants, while relatively rare, involve average and median settlements that are greater than the sample as a whole.” Many of these results are similar to those in the recent NERA study.

2) The ALI-ABA has published an article entitled “Central Bank is Alive and Well: Defense Strategies for Defeating ‘Scheme To Defraud’ Allegations in Private Securities Litigation” by Brian Pastuszenski, Christopher Robertson, and Jason Frank (SHO83 ALI-ABA 439 (May 8-9, 2003)). The authors focus on plaintiffs’ recent attempts to use the holding in SEC v. Zandford, 535 U.S. 813 (2002), where the Supreme Court found a broker liable for engaging in a “scheme to defraud” under Rule 10b-5 when he misappropriated funds from a customer’s account, to avoid the prohibition on “aiding and abetting” liability found in the Court’s earlier holding in Central Bank. Recent district court decisions (notably in the Enron case) “have allowed claims to proceed against secondary actors who were not alleged to have made any actual misstatements relied on by plaintiffs, but instead were alleged only to have participated in certain transactions underlying the alleged misstatements.”

Quote of note: “Successfully arguing a motion to dismiss based on Central Bank, however, requires articulating clearly the difference between (a) a ‘misstatement’ case in which plaintiffs complain about the purchase of stock at inflated prices as a result of allegedly false and misleading statements and (b) a case that alleges other forms of ‘deception’ that caused plaintiffs harm . . . In the typical class action case, only the defendant who actually made the offending statements themselves has any potential liability after Central Bank.” (A discussion of another recent article on this general topic, with a different viewpoint.

3) The same ALI-ABA “course of study” has an article on “Anonymous Informants: How Identifiable Must They Be Under The PSLRA” by Peter Saparoff and Justin Kudler (SH083 ALI-ABA 479 (May 8-9 2003)). The authors survey the recent case law on this contentious issue.

Quote of note: “The trend in the case law now has solidified around providing a description of the informant, but not necessarily his or her name, in a complaint alleging violations of the federal securities laws that was pleaded under the PSLRA.”

Today’s Wall Street Journal (subscrip. req.) has a feature article on the rising cost of directors and officers liability insurance (for more on this topic see this post in The 10b-5 Daily). Insurers are both raising premiums and “holding firm on many of their efforts to rein in the generous terms and conditions they adopted during a price war in the late 1990s.” A side graph identifies AIG (34% of premiums; 19% of policies) and Chubb (16% of premiums; 21% of policies) as the D&O insurance leaders.

Quote of note: “And while the reforms of the Sarbanes-Oxley corporate-governance act may reduce corporate scandals, in the near future they could prove expensive. For example, the law increases the responsibility of audit-committee members for overseeing the company’s audits, potentially raising the stakes for individual committee members if problems are later found. ‘There’s a general confusion about what Sarbanes-Oxley really means,’ says Bill Cotter, chief underwriting officer for National Union Fire Insurance Co., of Pittsburgh, a unit of American International Group Inc., the leading underwriter of D &O insurance. ‘The fear is that it will be defined through litigation.'”

Quote of note II: “Companies have a variety of options to mitigate higher costs. These include buying less coverage and retaining more of their risk with higher deductibles or co-insurance, in which the policyholder pays a fixed portion of eventual claims, much as health-insurance often requires patients to pay part of their costs, brokers say. Deductibles, recently $1 million or even lower on even large policies, have risen to as high as $100 million. Co-insurance of 10% to 30% or more has become more commonplace as well.”

There is an interesting article on the ABA’s Business Law eSource (July 2003) entitled “Securities Litigation Against Third Parties: Pre-Central Bank Aiders And Abettors Become Targeted Primary Defendants.” The authors, Jay Eisenhofer and Cynthia Calder, offer a comprehensive summary of the post-Central Bank case law on who is a “primary violator” for purposes of Rule 10b-5, including separate sections on cases involving accountants, lawyers, underwriters/investment banks, and ratings agencies.

As noted previously in The 10b-5 Daily, the line between a “primary violator” (liable) and an “aider and abettor” (not liable) is becoming blurred. Eisenhofer and Calder conclude that “accountants, lawyers, and investment bankers ought to be taking a hard look at their relationships with their clients, and their own potential for primary liability under Rule 10b-5 in cases of corporate fraud.”

Quote of note: “Although neither has achieved majority acceptance, two different approaches – the ‘bright line’ and ‘substantial participations standards – have emerged from the lower courts. According to those courts that have adopted the ‘bright line’ standard, only if a defendant actually makes a statement to the plaintiff (or the investing public) which contains a misrepresentation or omission can that defendants be liable. By contrast, under the ‘substantial participation’ rubric, a defendant that plays a significant role in creating the statement can be held liable.”