Other views: Don’t let case outcome hurt the small investor

  • Posted: Thursday, March 13, 2014 12:01 a.m.

For more than a quarter of a century, investors have been able to bring class-action lawsuits against companies that have fraudulently inflated their stock prices without having to prove that each buyer of the stock had been individually duped. Now, industrial giant Halliburton Co. is trying to persuade the Supreme Court to make such lawsuits significantly harder, if not impossible, to bring. That would be a fantastic result for publicly traded companies, but a terrible one for the average investor.

While securities fraud can be devastating to small investors, their losses rarely are large enough to make it worthwhile for them to sue as individuals. Thatís why class-action suits that combine the claims of all the defrauded investors are vital to protecting the little guy on Wall Street. The Supreme Court gave such suits a boost in 1988, ruling that federal law did not require each member of a class to show that he or she had seen and relied on a companyís fraudulent statements before buying a stock. Instead, the court said, it made sense to presume that most publicly available information is rapidly incorporated into a stockís price, so that misleading statements given to some investors could cause a fraud on the entire market for that stock.

The new case started in 2002, when a group of Halliburton investors sought to recover losses they blamed on allegedly misleading representations the company made about its asbestos liabilities, construction revenue and merger efficiencies. After a series of rulings that allowed the case to proceed as a class action, Halliburton appealed to the Supreme Court, arguing that the 1988 rulingís ďfraud on the marketĒ approach was no longer appropriate.

According to Halliburton, many of todayís investors donít care whether a companyís stock price accurately reflects its value because itís immaterial to their investing strategy. That may be true, but as a group of securities-law experts advised the court, it doesnít change the fact that stock prices respond when significant information about a company is disclosed, or that typical investors rely on the integrity of those prices.

Itís fair to presume that if a deceptive statement affected the value of a company, the losses later suffered by the entire class of investors can be tied to that fraud.

At the oral argument last Wednesday, Justice Anthony M. Kennedy suggested a compromise path: Before a court could allow a securities fraud case to become a class action, investors would have to show that the alleged fraud raised the price they had to pay for the stock. But thatís the sort of factual dispute that trials are designed to resolve, after both sides have gained access to all the available evidence. More important, Congress has clearly signaled its satisfaction with the courtís 1988 interpretation of securities law, leaving the fraud-on-the-market approach intact even as it put new limits on securities class actions. Thatís all the more reason for the court to leave this precedent alone.

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