NU Online News Service, Nov. 9, 10:57 a.m. EST
Lawsuits filed in reaction to low deal prices for mergers and acquisitions helped fuel an increase in the overall level of third-quarter securities lawsuits, even as suits related from the credit crisis petered out, experts said recently.
New York-based Advisen counted 284 securities suits altogether in the third quarter of 2010, compared to 278 in the second quarter in a report released last month.
In the first quarter of this year, Advisen had attributed a short-lived downward trend in securities suit filings to a steep decline in credit-crisis claims–and that has continued, according to John Molka, senior industry analyst and editor for Advisen, who authored the firm’s third quarter analysis.
During the second quarter, he noted that the Deepwater Horizon explosion produced a separate wave of securities suits, but even those were absent in the third quarter, when the total number rose again.
As in past reports, the latest Advisen analysis includes cases other than federal securities class actions, such as breach of fiduciary duty suits filed in state courts, in the overall 284-suit count. Now representing the largest portion of the total–at 34 percent in the third quarter–breach of fiduciary suits have exploded from only 8 percent of the total in 2004 and 24 percent in 2009, according to Advisen.
Speaking on a webinar last month, Mr. Molka explained that resurgent M&A activity has sparked the jump. “Some shareholders might feel cheated on these deals because their stock price is so low compared to a couple of years ago. That may have added fuel to the fire,” he said, noting that the fiduciary duty suits were the primary driver of this quarter’s overall rise in securities suits.
Adam Savett, a former securities case litigator, agreed that the merger-objection cases “have come back with a vengeance over the last 12-18 months. Part of that is the capital markets unfreezing, and there being increased deal volume,” said Mr. Savett, who is director of securities class actions at the Claims Compensation Bureau.
There was a merger-objection case filed after almost every merger announcement this year, Mr. Savett said, suggesting that another reason relates to the struggles that “older-line plaintiffs-side securities firms” have encountered in surpassing the hurdles of the Private Securities Litigation Reform Act–even 15 years after its passage in 1995 (attempting to curb frivolous stock-drop cases).
Because these firms don’t have the client bases to get leadership positions (representing lead plaintiffs as spelled out in the Act), they were locked out of major cases like the WorldComs and Enrons earlier in the decade. “So they’re carving off a niche here or a niche there, and some of them have really aggressively started going into the deal or merger-objection cases.”
“You also have a lot of newer entrants going into that field,” Mr. Savett reported. “It’s tough to do a Google search for the [phrase] class action or securities class action without seeing an ad pop up that asks are you objecting to whatever the latest announced merger is.”
“There are a lot of firms trolling for plaintiffs, including ones you’ve never heard of before,” he said. “The barrier to entry is fairly low. All You need is a Google Adword account, an Internet connection and an answering service, and that’s about it in order to be a plaintiffs’ securities lawyer,” Mr. Savett said.
For more information on the Advisen’s third-quarter analysis, see related article in this week’s print edition of National Underwriter titled, “Watch Regulators For Next D&O Wave.”