Pending SCOTUS ruling could change the face of securities litigation

Brings into question the validity of the ‘fraud on the market’ concept

The “fraud on the market” presumption has historically been a cornerstone of securities litigation and has undoubtedly led to a higher number of cases since its institution in the late 80s. The provision makes it easier for investors to recoup money from corporations that release statements that are misleading or false, and has always been a contentious point in securities cases.

Now the Supreme Court is taking another look at the theory, and the results could make it more difficult to certify class actions against corporations that make misleading statements. The debate is being rekindled by a case involving Halliburton Corp. that was revived on Nov 15.

Predicated on the efficient-market theory, the concept allows for broader class certification for securities cases by not requiring plaintiffs to prove they used a company’s statements to make an investment decision. The ruling was the result of Basic Inc. v. Levinson in 1988, and assumes that investors rely primarily on the assumption that the market is working correctly when they put money into a stock.

As a result, those seeking damages from corporations that released fraudulent statements about performance only have to prove that they invested, not that they invested as a direct result of a statement or earnings report.

In the case at hand, which has been going on for more than a decade, plaintiffs say that Halliburton offered misleading statements about its asbestos liabilities and the revenue it received on a number of construction contracts. While the case was thrown out in 2011, it is being revived under the pretenses that would evaluate it against the Basic ruling. Should SCOTUS rule that the Basic case was invalid, it could change the way securities cases are litigated.

Should the Supreme Court overrule its earlier decision, "that would be a game-changer," said Bruce Ericson, a lawyer with Pillsbury Winthrop Shaw Pittman LLP in an interview with Wall Street Journal. "It would make it much more difficult, and potentially impossible, to certify a class and maintain a class action."

A ruling to the case is expected in early 2014.


For more on recent securities litigation news check out InsideCounsel’s coverage:

SCOTUS Rolls Back Corporate Spending Limits in Election Campaigns

JPMorgan settlement represents possible turning point for Eric Holder

SEC file fraud charges against two investment managers

Executive Editor

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Chris DiMarco

Chris DiMarco, Executive Editor of InsideCounsel magazine, has a background in multimedia production with previous involvement in projects in which he developed and created content...

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