Opt-outs: A growing trend in securities litigation

Large investors are ditching class actions to pursue individual suits in hopes of recouping more losses

In the early 2000s, Pfizer Inc. was flying high on the booming sales of its blockbuster arthritis drugs Celebrex and Bextra. But things began crashing down when an independent study published in 2004 showed that patients who took the drugs had a high risk of blood clots and other cardiovascular problems. Bextra was pulled from the market; Celebrex stayed on shelves but only with a host of grim new warnings about the drug’s dangers.

An avalanche of litigation ensued. For a class action lawsuit, plaintiffs firms set up websites to gather patients who took the drugs. The Department of Justice launched a probe into off-label marketing of Bextra that led to the largest-ever health fraud settlement up to that point. And investors sued. Their 2004 securities class action lawsuit is still pending today. In it, investors claim that Pfizer misled shareholders about its knowledge of the risks the drugs posed, leading to huge losses. According to the lawsuit, Pfizer lost $68.4 billion in market value between October 2004 and October 2005 as a result of the Celebrex and Bextra fallout.

Going Solo

The trend of opt-outs first gained traction a decade ago when investors were looking to recoup losses from the era of corporate scandals involving WorldCom, Tyco International Ltd. and Enron Corp. For example, New York public pension funds opted out of the WorldCom litigation and resolved their claims for $78.9 million—three times what they would have recovered as part of the investor class action. Likewise, investors who opted out of the AOL Time Warner securities class action reported results several orders of magnitude better than they would have achieved as class members—Alaskan government funds that opted out claimed recovery of 50 times what they would have received as class members and CalPERS reported receiving 17 times its estimated class recovery. 

Adele Nicholas

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