The Information Content of Publicly Accessible Federal Court Documents

Prior literature documents a negative stock price reaction to initial securities lawsuit filings, on average. Securities litigation produces a host of publicly accessible court documents, however, and prior research provides no evidence regarding whether or how the market prices information generated by the litigation process. We shed light on the information content of federal court filings by examining the market response to a large sample of initial plaintiff complaints and subsequent docket events. We find the market response to the initial lawsuit filing varies significantly with information about governance and control problems signaled by details of the plaintiff’s complaint. We also find a significant market response to subsequent court filings that increases with measures of litigation severity and decreases as the litigation progresses over time. Overall, our results highlight the role of federally accessible court filings in facilitating the market’s pricing of defendant firms.

Private Securities Litigation

This chapter focuses on the erratic and unacceptable private securities litigation framework that prevails in the United States. The litigation structure contained in the federal securities acts was based on a different era and is not suitable for today’s securities markets. Although federal legislation has been enacted to address perceived shortcomings on an episodic basis, significant gaps and inconsistencies exist. Likewise, the federal courts, faced with a fractured statutory regimen, frequently have construed the remedial provisions in a wooden and unduly restrictive manner. The consequence of these congressional and judicial actions is a disparate liability framework that lacks sound logic, consistency, and even-handed treatment for plaintiffs and defendants alike. This chapter provides several examples of the inconsistencies and disparate treatment that prevail under the federal securities laws. Thereafter, recommendations for corrective measures are proffered. These proposals, if adopted and effectively implemented, should instill a substantially greater degree of certainty, uniformity, and equity than currently exists.

Summary of Recommendations for Adoption

This chapter summarizes key recommendations that are proffered throughout this book. Recommendations that are proposed encompass the areas of the disclosure framework, issuer exemptions from Securities Act registration, exemptions for resales of securities, the Securities Act registration framework, due diligence in registered offerings, the federalization of corporate governance, private securities litigation, insider trading, mergers and acquisitions, and the Securities and Exchange Commission. In total, well over 100 recommendations are set forth in this chapter. Hence, this book has identified problematic areas, analyzed their shortcomings, and recommended solutions that should ameliorate the deficiencies that exist. With the adoption and implementation of the recommendations made herein, the U.S. securities framework should become more transparent, even-handed, and investor-oriented without imposing undue burdens on legitimate business practices.

Auditors’ Duty to Respond to “Red Flags” Indicative of Overvaluation of Inventory: A Case Study of Sanchez v. Deloitte & Touche

This is a legal case study of Sanchez v. Deloitte & Touche. It covers: (a) legal elements of a securities fraud claim; (b) the effect of the Private Securities Litigation Reform Act upon the pleading of an auditor’s complicity in securities fraud; (c) how SEC Rule 10b-5 affects auditors; (d) potential red flags pertaining to an audit client’s deficient inventory control system; (e) the failure of a client’s internal controls to detect a gross overvaluation of inventory; (f) the failure of an auditor to ensure that the client’s inventory is valued at the lower of cost or market, as required under General Accepted Accounting Principles; (g) the court’s decision as to whether the auditor in this case was liable for complicity in securities fraud, the court’s legal justification for the decision, and the impact of the red flags on the court’s decision.

U.S. Evidence from D&O Insurance on Accounting-Related Agency Costs: Implications for Country-Specific Studies

Many studies use country-specific evidence to investigate research questions of broad interest due to research advantages of a given country, such as data availability or to exploit an exogenous event that allows identification. One such research stream largely examines Canadian directors' and officers' (D&O) insurance and finds that more coverage (i.e., higher limits) is negatively associated with financial reporting quality and positively related to litigation (accounting-related agency costs). However, the U.S. and Canada differ on key issues relevant to securities litigation and D&O insurance. Thus, we predict and find that premiums, rather than limits, provide information about U.S. accounting-related agency costs. Nonetheless, the incremental information provided by premiums about accounting-related agency costs is limited, and audit fees provide more consistent and better information about these agency costs. Thus, although researchers argue for disclosure of U.S. D&O insurance information, the usefulness of such disclosures may be limited because audit fees are already disclosed. Our findings also suggest caution in broadly generalizing country-specific studies.

The unintended benefit of the risk factor mandate of 2005

In 2005, the SEC mandated that firms disclose risk factors to provide useful information about firm risk. An unintended effect of the mandate is that mandatory risk factor (RF) disclosure may constitute “meaningful cautionary language” as defined in the Private Securities Litigation Reform Act, and may therefore provide legal protection for forward-looking statements (FLSs). Using both a difference-in-differences design and a two-stage least squares approach, we find that, following the mandate, firms that had not previously disclosed risk factors (late RF disclosers) became more willing to provide qualitative FLSs, particularly positive ones, than other firms. This finding is consistent with our prediction that, for late RF disclosers, the mandate reduces managers’ perceived litigation risk. We also find that these firms experience improvement in their information environment. A path analysis reveals that the mandate improves firms’ information environment not only directly but also indirectly by prompting more disclosure of positive FLSs, illustrating an unintended benefit of the 2005 RF mandate. Cross-sectional tests show that the RF mandate induces a larger increase in positive FLSs for firms whose managers perceive a higher level of benefit from safe harbor protection arising from meaningful cautionary statements.

Old Wines in New Bottles? Private Securities Litigation in China’s New Securities Law

Private securities litigation has been very weak since the establishment of China’s stock market some 30 years ago. A new law on securities took effect in March 2020 and introduces some reformist changes to this area. This article will examine the likely effect of the new Securities Law on this form of litigation. In particular, it will examine China’s most celebrated ‘quasi-class action’ system, i.e. Special Representative Litigation. This procedure is borrowed from Taiwan’s non-profit organization model. The essay argues that, since the new Securities Law has made only limited efforts in addressing the primary reason for the weak private securities litigation, namely, lack of judicial independence, it is unlikely to make any significant changes to private securities litigation in China. Keywords: private securities litigation; securities law; class action; cost of litigation; judicial independence.

Self-placement of Complex Financial Instruments by Banks to Retail Clients and Civil Liability Issues – An Overview of Greek Case-Law

This study focuses on self-placement of complex financial instruments to retail clients which is often associated with mis-selling practices. Recent case law in Greece concerning distribution Of “Coco” bonds by a Cypriot bank to its clients reveals, on the one hand, the stand Of Greek Courts concerning the interpretation of certain ambiguous MiFID I Conduct of Business (COB) rules and, on the other, their interplay with civil law duties and the intricacies that arise in order to substantiate a civil liability claim for breach of the COB rules, such as the difficulty to prove causation in securities litigation. The study further evaluates the new MiFID II/MiFIR provisions that relate to the practice of self-placement and supports the adoption of a civil liability regime at the EU level, as well as other alternatives to further enhance retail investor protection.