Risk Management

Securities Lawsuits Plummet in 2009

A big reason, though, is that all the big financial-services firms have already been sued.
David McCannJuly 20, 2009

The number of federal class-action securities lawsuits declined substantially in the first half of this year compared to 2008, a new report says. Given the state of the economy, that may seem odd, but there are some logical explanations for the dearth of lawsuits.

According to the Cornerstone Research report, 87 such class actions were filed during the recently ended six-month period, a drop of 22% from both the first and second halves of last year. If the pace were to hold steady through the last half, the full-year number of filings would be almost 12% less than the annual average for the 12-year period ending in December 2008.

Investors who did seek legal relief for their losses were increasingly likely to pin the blame on financial-services firms, which were the defendants in two-thirds of this year’s cases, up from 50% of all 2008 filings. Among the 42 cases the report identified as triggered by losses on financial instruments that were affected by the credit crisis, 40 were against financial firms.

But given the dwindling overall total of securities class actions, the raw number of suits against the financial sector was about the same as last year. “All the large firms in the industry have already been sued,” said Professor Joseph Grundfest, director of the Securities Class Action Clearinghouse at Stanford Law School, which worked with Cornerstone on the report. “Plaintiffs are therefore filing claims against the smaller number of financial services firms yet to be sued.”

Still, the number of class actions against other kinds of entities has been approximately cut in half this year. That’s likely because the stock market hasn’t been doing badly, especially when compared with the rest of the economy, which is still reeling with depressed credit markets, profits, and productivity. “The market was much more volatile in the second half of 2008, when filings were rising, compared to the first half of this year, when filings dropped,” noted John Gould, vice president of Cornerstone Research.

Meanwhile, though, class actions against securities issuers with headquarters outside the United States continued a decade-long upward trend. After a record 31 such filings in 2008, there were 18 in the first half of this year — more than three-quarters of which were against financial firms.

Among all filings, there were 15 related to Ponzi schemes — three times more than had been filed cumulatively from 1996 through 2008. Eleven of the 15 were on behalf of investors in funds managed by the now-imprisoned Bernard Madoff.

The report also quantified, in two different ways, market-capitalization losses for firms that were sued. One measure, called “disclosure dollar loss” or DDL, was the change in market cap from the day before the beginning of the period covered by the class action, to the day after the end of the period. In that category, losses were a cumulative $48 billion, far below last year’s figures of $97 billion and $129 billion for the first and second halves, respectively. And just two cases accounted for two-thirds of the $48 billion.

That decline did not reflect only the lower number of total filings, since the average DDL per filing decreased by 27%. The report’s authors also attributed it to lower stock valuations — in other words, price declines that led to lawsuits were from lower bases.

The other measure, called maximum dollar loss (MDL), was the change in market cap from its highest point during the class period to the day after the period. In that category, by contrast, the cumulative losses of $429 billion in the first half were up from $351 billion for firms sued in the last six months of 2008, and down from $518 billion in the first half of last year. Seven filings accounted for $376 billion of the $429 billion MDL in the most recent half-year

The authors pointed out that market-cap changes could be due to numerous factors other than the litigation.