For regulated entities, an enforcement action by a government agency is practically guaranteed to result in a parallel consumer class action.
Nowhere is that more clear than for publicly traded companies regulated by the Securities and Exchange Commission (SEC). Securities class actions were considered to be so rampant that in 1995, Congress enacted the Private Securities Litigation Reform Act (PSLR) to curb what the industry believed were abusive practices.
While the statute raised the bar for private enforcement actions, it certainly did not close the courtroom doors to plaintiffs. Although there are fewer suits brought today, complaints are still filed lockstep with an agency enforcement action and in significant enough numbers to keep companies on their toes.
Industry watchers predicted that a seminal case decided by the U.S. Supreme Court last term, Halliburton Co. v. Erica P. John Fund (Halliburton II), would result in a decrease in class actions filed. That case involved a popular theory known as “fraud on the market,” where plaintiffs were not required to demonstrate that each individual class member relied on any allegedly misleading statements if the security at issue could be shown to be “efficient,” or with a market price reflecting all of its publicly available information.
While the Court did not toss the theory, the justices held that defendants can rebut the presumption prior to class certification. The June decision appeared to have little impact on the figures for 2014 filings. For example, NERA Economic Consulting reported that 221 securities class actions were filed last year, compared to 222 in 2013 and 212 in 2012.
Interestingly, although the number of complaints in securities class actions has not fluctuated much over the last few years, the aggregate amount of investor losses has declined, NERA found. 2014 saw a drop to $154 million from $159 million in 2013, down significantly from $243 million in 2012 and $248 in 2011. Are certain industries facing more lawsuits than others? NERA reported that one quarter of all of the securities class actions were filed against companies in the health technology and services area. Other major players: the finance industry, in second place with 19 percent of the suits, followed by the electronic technology and service sector with 13 percent.
Securities class action plaintiffs are also continuing a trend of settling prior to trial. Of all the pending and newly filed cases in 2014, just one lawsuit was actually tried to verdict (resulting in a plaintiff victory). Almost half of the cases ended on the defendant’s motion to dismiss (48 percent last year with an additional 21 percent dismissed in part), NERA found; 75 percent of the cases that survived settled prior to the class certification stage of litigation.