After a plaintiffs' lawyer active in securities litigation predicted no letup in filings for 2008, a defense lawyer gave some crystal-ball predictions about what might be ahead for D&O insurers in 2013 at an underwriter's conference last month.

"Rumors of the death of the plaintiffs' bar have been greatly exaggerated," remarked John Rafferty, vice president of Hartford Financial Products in Chicago, during the Professional Liability Underwriting Society D&O Symposium, pointing to various reports showing an uptick in federal securities class-action filings last year.

The increases reversed a nearly two-year decline in filings, the reports said.

In early January, Stanford Law School in Palo Alto, Calif., and Cornerstone Research in Boston jointly released an annual report, reporting that federal securities fraud class actions soared 43 percent to 166 in 2007 from 116 in 2006, attributing the jump to subprime issues and stock market volatility.

Offering a different count in late December, New York-based NERA Economic Consulting projected a big increase as well--up 58 percent to 207 in 2007 from 131 in 2006.

At the PLUS conference, Samuel Rudman, a partner for Coughlin, Stoia, Geller, Rudman & Robbins in New York, said, "I think it was clear that the decline in 2005 and 2006 was directly related to market volatility."

"There were people out there saying there was not as much fraud," or that Sarbanes-Oxley corporate governance rules were responsible for the lower filing counts in those two years, he noted.

"I was saying it has nothing to do with those things. It has to do with market volatility," said the plaintiffs' lawyer, noting that when the market was relatively stable during 2005 and 2006, public companies didn't see severe stock price reactions to missed earnings reports.

Now, such reports can drive a stock price down 40-to-50 percent, Mr. Rudman said.

The subprime issue has driven market volatility, and the volatility is what's driving the increase in filings, he said.

"I have been filing cases since the passage of PSLRA--probably more than anyone else--and my prediction for this year would be that this will definitely be the busiest year since the passage of PSLRA," Mr. Rudman said. (PSLRA--the Private Securities Litigation Reform Act of 1995--is a federal law that raised pleading standards and procedural hurdles for bringing securities class actions to federal court.)

During an earlier PLUS session, Boris Feldman, a partner with Wilson Sonsini Goodrich and Rosati in Palo Alto, Calif., who represents defendants, predicted that shareholder litigation in the coming years will emerge around three areas:

o Hedge fund activities.

o Increasing use of clean technologies.

o An explosion of social networking applications on the Internet.

"I don't know in what form hedge fund shareholder litigation will occur, [but] I don't think litigators have quite caught up with...the tidal wave of movement [of money] from traditional investment vehicles into hedge funds and private equity," Mr. Feldman said.

"My guess is that five years from now, there will be as many lawyers involved in that as [in] traditional open market public company cases," he predicted.

He also said "there's a lot of money waiting to get into clean tech, or alternative energy," with law firms now forming alternative energy groups.

"The funds investing [in the clean tech sector now] don't really know that much about it," he said, predicting the possibility of a big boom-and-bust cycle that will resemble the "success/failure profile" of biotech companies that have experienced their fair share of securities cases.

"You're going to see a lot of money poured in, and many failures," he said. "So my guess is five years from now one of the topics [on the PLUS agenda] will be the first Clean Tech shareholder class actions."

Moving to his third prediction, Mr. Feldman said "the whole world of social networking now has many start-ups doing Facebook applications," adding that venture capital firms are starting to swing toward this trend and put a lot of money into these new undertakings.

"The plaintiffs' bar is outstanding at going where the money is," he said.

Special Reports /

D&O Claims Trends: From Clean To Mean In 2013

Related Stories

Recommended For You