By Jeff McCord is a former US Senate staffer, Securities Investor Protection Corp (SIPC) executive and has been a free-lance journalist for Dow Jones publications. His academic background in economics includes post-graduate work at the London School of Economics and George Washington University.
FREQUENTLY MALIGNED CLASS ACTION LAWSUITS ACTUALLY DETER FINANCIAL WRONGDOING, STUDY FINDS
Though often criticized as frivolous and lacking economic benefit, new research by finance and accounting professors at Rutgers and Emory universities’ business schools finds that class action lawsuits are a strong deterrent to misrepresenting corporate financial results and other wrongdoing. And, in many instances class actions are a stronger deterrent than SEC enforcement.
“Our research found statistically and economically significant deterrence associated with both SEC enforcement and class action lawsuits,” said Simi Kedia, Ph.D, MBA, associate professor of finance at Rutgers University School of Business in an interview with The Investor Advocate. “We looked at firms in the same industry as the enforcement target and found that the average peer firm subject to SEC action and/or litigation reduces discretionary accruals (i.e., reporting as sales transactions for which payment has not been received) equivalent to 14 percent to 22 percent of the median return on assets in the aftermath of such enforcement.”
The study, a working paper presented at a couple conferences and now being circulated for comment before publication, measured the effectiveness of the two primary methods of federal securities regulatory and law enforcement: “public” enforcement by the Securities and Exchange Commission; and, “private” enforcement through securities class action lawsuits.
Regulatory Failures Enhance Importance of Class Actions
A recent story by the New York Times’ Gretchen Morgenson reported on why private lawsuits are particularly important at a time when federal failure to enforce the law is considered one cause of our on-going financial-economic crisis and of public discontent with government:
“When federal authorities don’t fulfill their obligation to enforce the law, they essentially give an imprimatur to the financial entities to do whatever they want and disregard the law,” said Kathleen C. Engel, a professor at Suffolk University Law School in Boston. “To the extent there are places where shareholders and borrowers can pursue claims, they are really serving the function of the government. They are our private attorneys general.”
Lawsuits have long been a crucial method for shareholders to recover losses. A February letter to the Securities and Exchange Commission from the general counsel of the California Public Employees’ Retirement System noted that private litigants in the 100 largest securities class action settlements had recovered $46.7 billion for defrauded shareholders.”
“I am not surprised at all that rigorous unbiased research now proves class action law suits are a robust deterrent to financial fraud and wrongdoing,” explained Salvatore J. Graziano, Esq., president of the National Association of Shareholder and Consumer Attorneys. “On behalf of defrauded institutional investor clients, securities plaintiffs’ attorneys routinely conduct thorough and ground breaking investigations of corporate defendants including securing information from knowledgeable former employees in our civil prosecutions. In fact, private investor lawsuits at times also help further investigations by the SEC and other federal agencies.”
Indeed, the new study found that in cases where both the SEC and class action lawsuits take action, on average private lawsuits precede SEC action by 297 days .
Not surprisingly, the strongest deterrence effect was found when both SEC proceedings and class actions are launched.
Class Actions Recover More Money & Can be Stronger Deterrent than SEC
“Class action lawsuits, although often maligned as frivolous and socially wasteful, can have positive externalities by curbing aggressive reporting behavior of peer firms,” the paper by Dr. Kedia and her colleagues states. Indeed, class action lawsuits recover far more money – twice as much or more — from wrongdoers than SEC actions, according to sources cited by the professors. And, in most situations, the deterrence value of class actions (in the absence of SEC enforcement) is actually stronger than that of the SEC when acting without a corresponding class action.
This first study to validate the enforcement value of class actions through empirical research was conducted by Dr. Kedia and Shivaram Rajgopal, Ph.D., Chartered Accountant and Schaefer Chaired Professor of Accounting at Emory University’s Goizueta Business School, with Jared Jennings, a doctoral student at the University of Washington’s school of business. Their paper, entitled “The Deterrence Effects of SEC Enforcement and Class Action Litigation,” reports their analysis of 474 SEC actions alleging financial statement misrepresentation and 1,111 class action lawsuits alleging violations of Generally Accepted Accounting Procedures during 1996 through 2006. The paper was first circulated for comment in June. http://papers.ssrn.com/abstract=1868578
Among other findings, the professors reported:
— “The SEC publicly targets a very small fraction of firms – in our sample only 0.74% of firms were subject to SEC enforcement. At these low levels of enforcement, a substantial fraction of misreporting is likely to go undetected. Therefore, if potential miscreants consider the probability of detection to be too low, they are unlikely to change their behavior.”
— “Securities class action litigation for alleged reporting irregularities is more likely against an average firm – in our sample 1.28% of firms are subject to class action litigation. The greater likelihood of class action litigation, combined with higher monetary sanctions, likely renders lawsuits as a potentially effective way to deter reporting irregularities at peer firms.
The purpose of the research was to empirically measure the value of SEC enforcement actions at a time when the Commission has been criticized as ineffective. It also sought to assess the value of securities class action lawsuits, a legal remedy for investors and private enforcement mechanism that has been attacked for many years within corporate and political arenas.
Jeff publishes a blog (www.the-investor-advocate.com) to help promote investor protection and sustainable economic growth by reporting on securities regulatory and other investor-related news and developments ignored by mainstream media. He may be reached at email@example.com.