Senate Banking, Housing and Urban Affairs Committee

Securities Subcommittee

Hearing on S.1260,
"The Securities Litigation Uniform Standards Act of 1997"

Biographical Statement

I am a Lecturer at Stanford Law School and Co-Director of the Law School's Roberts Program in Law, Business, and Corporate Governance. My primary areas of scholarly interest are securities regulation and litigation, civil procedure, class actions, and complex litigation. Prior to coming to Stanford, I received my LL.M. degree from Columbia Law School, where I was valedictorian, a James Kent Scholar, and the recipient of the Walter Gellhorn Prize for outstanding proficiency in legal studies. I was also formerly associated with the New York law firm of Cadwalader, Wickersham & Taft, where I handled primarily securities actions and other complex federal litigation. I am a member of the New York bar.

I have written numerous articles on securities fraud and class action litigation, including: (1) Fraud and Federalism: Preempting Private State Securities Fraud Causes of Action (forthcoming Stanford Law Review); (2) Securities Litigation Reform: The First Year's Experience (A Statistical and Legal Analysis of Securities Fraud Litigation Under the Private Securities Litigation Reform Act), Working Paper No. 140, John M. Olin Program in Law and Economics Working Paper Series, Stanford Law School (Feb. 1997) (with Joseph A. Grundfest); (3) Class Action Chaos? The Theory of the Core and an Analysis of Opt Out Rights in Mass Tort Class Actions, 46 Emory Law Journal 85 (1997); (4) The Pentium Papers: A Case Study of Institutional Investor Activism in Litigation, 38 Arizona Law Review 559 (1996) (with Joseph A. Grundfest); and (5) A Strong Inference of Fraud? An Early Interpretation of the 1995 Private Securities Litigation Reform Act, 1 Securities Reform Act Litigation Reporter 397 (1996).

I am also one of the principal developers of Stanford Law School's Securities Class Action Clearinghouse which has been nominated by the Smithsonian Institution for the 1997 Computerworld-Smithsonian Award as one of the five most important applications of information technology created by an educational institution.

Summary

• National markets should, for reasons wholly unrelated to the debate over the merits of the Reform Act, be governed by uniform national standards;
  
  
• Under the doctrine of implied conflict preemption, many provisions of the federal securities laws including portions of the Reform Act can be interpreted as preempting conflicting provisions of state law; and
  
  
• In order to promote certainty and efficiency in federal and state courts, and in our national securities market, Congress should enact legislation that makes it clear that federal antifraud standards prevail in national markets.

Mr. Chairman and members of the Subcommittee, I am honored by the invitation to appear before you today and to participate in these hearings. These hearings are, I understand, intended to explore the effects of the Private Securities Litigation Reform Act of 1995 (the "Reform Act" or the "Act"), and to consider S. 1260, a bill that would create uniform federal standards governing private securities fraud litigation against certain nationally traded issuers.

The Reform Act is now roughly twenty-two months old. At this relatively early stage of the statute's development, uncertainties regarding its future application and interpretation abound. It is therefore important to approach the issues pending before the Subcommittee with an appropriate sense of humility and respect for the unknown. To aid the Subcommittee in its inquiry and to emphasize the uncertainties in our current knowledge, I have organized my testimony in three parts. Part I discusses ten important things that we can measure and describe about class action litigation in the wake of the Reform Act. Part II describes ten important things we do not currently know about the Reform Act, including matters that will take several more years of litigation to resolve. Part III addresses the question of uniform federal standards and concludes that, notwithstanding uncertainties regarding the future effects of the Reform Act, the time is ripe for Congress to consider and to adopt suitably crafted uniform federal standards governing private securities fraud litigation affecting securities traded on national markets.

At least three empirical studies have examined securities fraud class action filings since passage of the Reform Act, including a study I co-authored. Our data continue to be updated as new cases are filed and as litigation progresses, and I caution that all empirical analyses of the Act are subject to revision as we gain additional experience with its provisions. Accordingly, the data discussed below speak only as to the time periods specified.

1. The total volume of litigation is little changed since the Reform Act.

How do these figure compare to the years immediately preceding passage of the Act? On average, in the last five years prior to the Reform Act approximately 176 defendant issuers were sued per year in federal court, although the number of issuers sued varied from a low of 153 to a high of 220.Thus, post-Reform Act litigation rates are well within the range observed prior to the Reform Act.

2. There has been a significant increase in state court class action securities fraud litigation against publicly-traded issuers since passage of the Act.

The relative stability of the aggregate litigation rate masks a significant shift of activity from federal to state court. In the first eighteen months after the Reform Act, a total of ninety-four issuers were sued in state court proceedings. To test whether this figure represents a substantial increase in state filings, I collected a sample of all actions reported in the "New Cases" section of Securities Class Action Alert ("SCAA") from January 1992 through December 1994. The results presented in Table 1 suggest a low volume of state court activity prior to passage of the Act. The number of reported state cases against publicly-traded issuers ranges from only one to four per year. The vast majority of cases are corporate law claims involving breaches of fiduciary duty in connection with mergers or other corporate transactions, which have traditionally been filed in state court. The remaining cases involve non-publicly-traded securities, such as limited partnerships interests, bonds, and brokerage accounts.

The data reported in Figure 1 and Table 2 suggest that the increase in state court actions is largely driven by a shift in the number of publicly-traded issuers sued in state court since the Reform Act. The number of class actions involving non-publicly traded securities has seen a modest increase since the passage of the Act, most likely because the same procedural hurdles apply to both these cases and to after-market fraud cases. The most significant changes, however, involve suits against publicly-traded issuers. In the sample of 1992-94 state class actions, only six involved publicly- traded issuers. By contrast, in only the first eighteen months under the Reform Act, the vast majority of state court class actions, seventy-seven in all, involve publicly-traded securities. The timing of this sudden upswing in state court filings supports the inference that the shift in forum selection was driven by the passage of the Reform Act.

Two phenomena seem to explain the bulk of this shift. First, there appears to be a "substitution effect" whereby plaintiffs' counsel file state court complaints when the underlying facts appear not to be sufficient to satisfy new, more stringent federal pleading requirements, or otherwise seek to avoid the substantive or procedural provisions of the Act. As is discussed below, this hypothesis is supported by statistically significant differences between state and federal litigation filed since passage of the Act. Second, plaintiffs appear to be resorting to increased parallel state and federal litigation in an effort to avoid federal discovery stays or to establish alternative state court venues for the settlement of federal claims.

3. Plaintiffs are alleging accounting fraud and trading by insiders more frequently in federal actions than before the Act's effective date.

Along with the shift to state court, one of the most significant effects associated with passage of the Reform Act are the changes in pleading patterns that have evolved in response to the Act's pleading requirements. In particular, there has been a marked increase in the proportion of federal complaints alleging: (a) misrepresentations or omissions in financial statements; or (b) trading by insiders during the period when the fraud was allegedly alive in the market. Approximately 59% of a sample of post-Reform Act federal complaints allege a misrepresentation or omission in financial statements. Allegations of misstated financials account for 67.4% of Rule 10b-5 complaints involving publicly-traded companies. In sharp contrast, similar allegations are found in only 34% of pre-Reform Act federal cases. Allegations of trading by insiders now appear in about 57% of post- Reform Act federal cases, whereas these allegations are found in only 21% of pre-Reform Act cases.

The increase in the frequency of these kinds of allegations is consistent with the theory that plaintiffs are increasingly relying on such allegations to satisfy the Act's strong inference pleading requirement. To provide additional support for this hypothesis, I have examined a sample of complaints against publicly-traded issuers sued solely in state court where the strong inference standard does not apply. Such an analysis is important because if the shift to state court is a substitution effect that is tied to the higher cost of federal litigation in the wake of the Reform Act (here measured in terms of the decreased likelihood of obtaining a settlement or judgment in excess of expected costs), then the cases filed in state court should be those that are expected to be less likely to survive a motion to dismiss or for summary judgment. The significant increase in federal complaints of allegations of material accounting irregularities and insider trading suggest that plaintiffs' attorneys believe these kinds of allegations may be sufficient to satisfy new heightened pleading standards. As a result, if there is a substitution effect, it is reasonable to expect that allegations of accounting irregularities or insider trading should be less frequent in actions filed solely in state court.

Table 2 demonstrates that allegations of misrepresentations or omissions in financial statements appear in only 45.45% of state cases versus 67.4% of federal cases. The difference in the frequency of these allegations supports the inference that state court is being used to avoid the federal pleading standard.

4. Companies tend to be sued in federal court after larger stock price declines.

A significant stock price decline over a short period of time may be a necessary but not a sufficient condition leading to class action securities fraud litigation. Prior to the Reform Act, the average stock price decline preceding the filing of a Rule 10b-5 claim was about 19%. In a sample of ninety-one post-Reform Act federal cases, the average decline jumped to 28.7%.

This increase in one-day stock price declines observed around the end of the class period is consistent with the theory that plaintiffs must, on average, demonstrate more dramatic wrongdoing in the post-Reform Act environment in order to satisfy the new federal pleading standard. Further statistical support for this hypothesis comes from examining the average stock price declines associated with the sample of post-Reform Act state filings. If factual differences in the complaints and the higher pleading burden in federal court are driving plaintiffs' attorneys' forum choices, then it is reasonable to expect that the mean stock price decline in state court cases will be smaller than in federal cases. Such a result makes sense because a larger stock price decline creates the appearance of more dramatic wrongdoing, making it more likely that the case will survive under the tougher federal pleading standard.

The sample of post-Reform Act state cases shows just such a difference. The average price decline for a sample of issuers sued solely in state court is 19.3%. That figure is about 10% smaller than for companies sued in federal court, and is virtually identical to the pre-Reform Act sample.The differences in the mean stock price data suggest that plaintiffs are filing in federal court cases that have larger stock price drops, and which therefore appear to involve more dramatic wrongdoing. It seems reasonable to infer that these decisions are being driven, at least in part, by the new heightened federal pleading standard. The data suggest that cases with smaller stock price drops (i.e., those with less dramatic facts) appear to be filed more frequently in state court proceedings where the strong inference standard does not apply.

5. Technology companies continue to be disproportionately frequent targets of litigation.

High technology companies were among the most vocal proponents of securities litigation reform, in large part because experience prior to the Reform Act indicated that high-technology companies were involved in a disproportionately large number of securities fraud class actions. The Reform Act has done little to change the percentage of high technology defendants sued in securities fraud class actions in 1996. High technology companies represent 34% of all issuers sued in federal court in that time period, a statistic that is not materially different from the pre-Reform Act experience.

6. In 1996, larger companies were being sued less frequently than before passage of the Reform Act.

The average company sued in federal securities fraud class actions in 1996 had a market capitalization of $529.3 million. Prior to the Reform Act, the average market capitalization was $2,080 million. This decline appears to be attributable almost exclusively to a reduction in litigation naming issuers with market capitalizations in excess of $5.0 billion. Prior to the Act, these corporations represented about 8.4% of federal court activity, but very few appear to have been sued in 1996.

This new pattern in defendant selection is consistent with the observation that the preponderance of post-Reform Act federal litigation involves allegations of accounting irregularities and trading by insiders. Larger, more established firms are less likely sources for material accounting irregularities or statistically significant trading by insiders. Larger firms are therefore less likely to be named as defendants. In addition, in 1996 the stock market growth was centered on the most well-capitalized issuers. That price pattern is also consistent with a shift toward litigation targeting smaller issuers.

7. Since passage of the Reform Act the "race to the courthouse" has slowed.

Available data suggest that the "race to the courthouse," which was one of Congress' primary concerns in passing the Reform Act, has slowed somewhat. Although some issuers are still sued within days of significant stock price drops, these typically involve more dramatic instances of alleged fraud. Overall, the average time between the end of the class period and the filing of the first complaint has risen from forty-nine days to seventy-nine days. This change appears to be driven largely by two Reform Act provisions. First, the lead plaintiff provision has reduced plaintiffs' attorneys' incentives to be the first to file a class action complaint against an issuer. Second, the Act's heightened pleading requirement may require plaintiffs to engage in more extensive investigation and more careful drafting prior to filing a complaint.

8. Institutional investors are only rarely stepping forward to become lead plaintiffs. They are often vigorously attacked by traditional plaintiffs' counsel when they do so.

Congress created the lead plaintiff provision to encourage greater institutional investor participation in class action litigation by giving the lead plaintiff the power to control the course of the action, including the selection of lead counsel. So far, institutions have not expressed a great willingness to serve as lead plaintiffs. Only a handful of major institutions have stepped forward in post-Reform Act class actions. In those cases, the institutions have faced significant opposition from the traditional plaintiffs' bar, who typically allege that institutions are unsuitable to serve as lead plaintiffs because their sophistication makes them atypical of the class as a whole or because they are susceptible to unique defenses. The traditional plaintiffs' bar has also vigorously attacked institutional investors' choices of counsel when those institutions have not selected members of the traditional plaintiffs' bar. Despite this opposition, courts have generally been willing to appoint institutions that volunteer to be lead plaintiff and have approved the institutions' choice of counsel.

9. Cases are taking longer to litigate and involve more pretrial motions practice.

Before passage of the Reform Act the median time between filing and settlement in securities class actions was almost two years. It is too early to determine whether the Act will affect this statistic; however, early evidence suggests that pre-trial proceedings are taking longer. The increasing length of pre-trial procedures is a necessary consequence of the Act's procedural reforms. The early notification procedures, the lead plaintiff provision, and the discovery stay pending resolution of any motion to dismiss have all tended to build significant delays into pre-trial practice. Moreover, some courts appear to be moving quite deliberately in interpreting the Act's novel provisions, especially the new heightened pleading standard, which has also slowed prosecution of these cases.

10. The Milberg Weiss firm has become more dominant as plaintiffs' class action counsel since passage of the Reform Act.

It was generally understood that before passage of the Act a single law firm, Milberg Weiss Bershad Hynes & Lerach ("Milberg Weiss"), played a dominant role as plaintiffs' class action counsel. Milberg Weiss' appeared in approximately 31% of securities class actions prior to the Reform Act.

Since passage of the Act, Milberg Weiss appears to have become an even more dominant presence. Milberg Weiss' appearance ratio in 1996 stood at about 59% nationwide and 83% in California.Milberg Weiss' increased significance can be explained by the fact that: (1) it is likely the best capitalized plaintiffs' firm and therefore best able to finance the delays associated with slower procedures under the Reform Act; (2) it has the most diversified portfolio of plaintiffs' claims and is therefore better able to absorb the risk associated with litigation under the new regime; and (3) it is best situated to internalize the externalities associated with the need to invest to create new precedent interpreting the Act's novel provisions.

While there is much that we know about the Act, our knowledge is typically limited to the early phases of the litigation. Even there, however, significant splits exist among federal district courts that have interpreted key provisions of the Act. The practical implications of these splits are difficult to predict and will probably take years of appellate litigation to resolve. Accordingly, it is safe to conclude that the uncertainties regarding the future interpretation of the Reform Act dominate our current knowledge of the Act's effects.

1. How will the courts interpret the Reform Act's requirement that complaints "state with particularity all facts" on which an allegation of fraud is based?

Section 21(D)(b)(1) of the Act provides that:

the complaint shall specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed. (emphasis supplied)

It is unclear how courts will interpret the "all facts" pleading requirement. The most extensive discussion of the provision to date was in In re Silicon Graphics, Inc. Securities Litig., 970 F. Supp. 746 (N.D. Cal. 1997), where the court granted a motion to dismiss plaintiffs' 73-page amended complaint. In interpreting the "all facts" pleading requirement, the court observed that the provision was the subject of specific debate in Congress. The court quoted Rep. Dingell who expressed concern that this provision would require disclosure in the complaint of names of confidential informants, employees, competitors, and others who provided information leading to the filing of the case. Id. at 763. The court found that because Congress enacted this provision despite these concerns, plaintiffs were obligated to plead precisely the sort of information Rep. Dingell described to satisfy the Act. Id. at 763-64. Plaintiffs had not met their burden and the complaint was dismissed.

The only other case of which I am aware that has interpreted this provision is Zeid v. Kimberley, a class action involving Firefox Communications, Inc. In Zeid, the court held that when a complaint is based on "investigation of counsel" rather than "information and belief" plaintiffs are not required to state with particularity all facts upon which their beliefs are formed. In such circumstances, however, the court held that plaintiffs must meet the other strict pleading requirements of the Reform Act. Specifically, the court held that "Plaintiffs cannot rely on conclusory allegations or tenuous inferences but instead, must allege with particularity: (1) each statement, (2) why each statements is false, and (3) as to each statement, facts giving rise to a strong inference that Defendants acted with scienter." The court found that plaintiffs' 104-page complaint failed to satisfy this standard and it was dismissed with prejudice.

If other courts follow either the Silicon Graphics or Zeid holdings, it is reasonable to expect to see an increase in the percentage of defendants that prevail on motions to dismiss and a decline in the volume of federal complaints. Silicon Graphics and Zeid are currently on appeal to the Ninth Circuit. The interpretation of the "all facts" pleading requirement is thus a major uncertainty regarding the evolution of the Act.

2. How will the courts interpret the Reform Act's "strong inference" pleadings standard? Will they adopt the Second Circuit standard or move to a stricter standard?

The Act requires plaintiffs to "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." The interpretation of this standard has been the subject of considerable disagreement among district courts. The debate focuses on whether the Reform Act simply adopts the Second Circuit standard, or goes further. Several courts have held that the Reform Act adopted the Second Circuit pleading standard, while other courts have found that the Reform Act standard goes beyond the Second Circuit standard. No appellate court has directly addressed this issue. Accordingly, it is uncertain if, in the long run, courts will adopt the Second Circuit standard or move to a stricter standard such as that employed by the Silicon Graphics court. Resolution of this uncertainty may materially affect the future evolution of federal securities fraud litigation. The higher the standard courts set, the more difficult it becomes for plaintiffs to withstand motions to dismiss and the lower the volume of anticipated litigation in the federal courts.

3. Will the safe harbor elicit more forward-looking information?

Under the safe harbor provisions of the Reform Act, a company may not be held liable under the federal securities laws for certain written or oral projections and other forward-looking statements. There are two prongs to the safe harbor. The first applies to statements that are identified as forward-looking and accompanied by "meaningful cautionary statements." In Rasheedi v. Cree Research, plaintiffs alleged that an issuer's forward-looking statements were false and misleading because it did not warn of the particular factors that actually caused results to differ. A North Carolina federal district court held that the statements were protected by the safe harbor because the issuer was only required to identify important factors that could cause results to differ, but not all factors.

The second prong provides that no liability shall attach unless the speaker had actual knowledge of the falsity of the forward-looking statement. In Silicon Graphics, the court found that the strong inference pleading standard applies equally to forward-looking statements.

Substantially more litigation experience is necessary to determine whether the Reform Act will prompt increased disclosure of forward-looking information. Even with the safe harbor provisions of the Reform Act, companies may avoid disseminating forward-looking information because of uncertainty regarding judicial interpretation of the safe harbor and because of fear regarding state court litigation.

4. What effect will the Reform Act have on pretrial dismissal rates?

The Reform Act has only been in effect for twenty-two months. It is often many months after a complaint is filed before a motion to dismiss is decided by the court, and only a small sample of cases have proceeded to the motion to dismiss stage. Our data suggest that more than 230 securities fraud class actions have been filed in federal court since the effective date of the Reform Act. According to the SEC, forty motions to dismiss have been decided. In fifteen cases, the motions were denied, while in the remaining twenty-five the complaint was dismissed, either in part (two cases), with prejudice (seven cases), or with leave to replead (sixteen cases).

It will probably require another year or two of litigation experience in order to draw more reliable conclusions about the effect the Reform Act has had on pretrial dismissal rates. Even then, those estimates may be unstable because of the previously described uncertainties regarding the interpretation of key Reform Act provisions.

5. What effect will the Reform Act have on settlement amounts?

Very few securities class action fraud cases go to trial. One study reported that 87.6% of the securities class actions filed from April 1988 through September 1996 ended in a settlement. The median time between filing and settlement is about two years. Because the Act has been in effect for less than two years, it is too soon to expect substantial settlement activity to have occurred. I am aware of only a handful of post-Reform Act settlements, thus the results from these settlements are not necessarily indicative of future trends. One study which analyzed five post-Reform Act settlements found that the settlements were, on average, over 40 percent higher than pre-Reform Act settlements. However, that result was not statistically significant. It will likely take several more years before we are able to draw more reliable conclusions as to the effect of the Reform Act on settlement behavior or amounts.

6. How will the Reform Act influence the incentive to litigate class action fraud claims?

As noted above, only a very small percentage of securities class action fraud cases go to trial, and the overwhelming majority that are not dismissed at the pleading stage or on a motion for summary judgment settle out of court. Certain Reform Act provisions, including the higher pleading standard, the automatic discovery stay, the safe harbor, the damage limitation provision, and the proportionate liability standard for non-knowing violations, could give defendants more incentive to litigate rather than settle class action claims. It is far too soon, however, to be able to discern any such effect.

7. How will the courts interpret the Reform Act's proportionate liability standards?

Under the Reform Act, defendants who did not knowingly commit a violation are "liable solely for the proportion of the judgment that corresponds to the percentage of the responsibility."I am not aware of any decisions that interpret these provisions. This is not surprising because these provisions usually are not considered by courts until late in the litigation process, after motions to dismiss and motions for summary judgment are decided. It is possible, however, that the new proportionate liability standards may make certain defendants more willing to face a trial on the merits. Without any decisions interpreting the proportionate liability provisions, it is too early to determine what impact they will have on post-Reform Act litigation.

8. Will state courts ultimately prove to be hospitable environments for the litigation of class action securities fraud claims?

As previously noted, since the Act there has been a significant increase in state court class action filings. Because state actions were rarely filed before the Act, there has been comparatively little interpretation of state liability provisions, and state case law remains undeveloped and inconsistent. Very few post-Reform Act cases have been subject to appellate review. The most significant pending state appellate case is Diamond Multimedia Systems v. Superior Court of Santa Clara County, 97 Daily Journal D.A.R. 4021 (Mar. 21, 1997). In that case, the California Supreme Court granted defendants' writ of mandate to review a number of questions, including whether a cause of action under section 25400 of the California Corporations Code is available only to California residents. Section 25400(d), upon which plaintiffs rely in most securities class actions filed in California provides that: "It is unlawful for any person, directly or indirectly, in this state" to make false or misleading statements or make omissions for the purpose of inducing the purchase or sale of any security (emphasis added). Plaintiffs argue that they should be permitted to certify a national class, including plaintiffs who are not residents of California and who have no other nexus to the jurisdiction. Defendants' counsel argue, among other matters, that California law on its face requires that the transaction take place in California, and that no national class can therefore be certified.

The effects of a decision in Diamond Multimedia are unclear. One possible result of a ruling that the statute requires a strict territorial nexus is that there will be a decrease in the number of California state court class actions because they may no longer be economically viable. While such a result would not be surprising, plaintiffs may respond much differently. Securities litigation could begin to look more like tobacco litigation and other mass tort cases. After federal rulings denying certification of a nationwide class due to differences in state laws applicable to different plaintiffs, attorneys in the tobacco litigation followed a disaggregative strategy in which they filed multiple class actions in different states. Plaintiffs could follow a similar strategy in securities litigation. As a result, a finding of a strict territorial nexus in Diamond Multimedia may have the perverse result of increasing the costs associated with litigating securities class actions and causing securities class actions to display many of the problems that beset mass tort class actions. Alternatively, plaintiffs may still find state actions useful: (1) for purposes of obtaining discovery that might be barred pursuant to the Reform Act's stay provision; (2) if they can create sub-classes of investors from different states; (3) if the state action still provides significant settlement advantages; or (4) if they have a large enough class of intrastate investors to make a single state class action cost effective.

9. Will the duty to audit for fraud created in Title III give rise to material new liability for issuers or auditors?

Title III of the Reform Act created a new duty on the part of auditors to adopt certain procedures in connection with their audits and to inform the Securities and Exchange Commission of illegal acts under specified circumstances. I am aware of only one case where the company's auditors have prepared a report pursuant to the provisions of Title III. In that case, the Cronos Group's auditor, Arthur Andersen, resigned the engagement and stated in a letter to the company's Board of Directors that it was obligated to submit a report to the company because it was unable to perform an audit in accordance with generally accepted auditing standards.

Concern exists that Title III may support an expansive interpretation that in the future generates substantial additional exposure for auditors and issuers alike. It is, however, too soon to tell whether Title III will create such new exposure.

10. Will institutional investors develop strategies for effectively monitoring class action fraud claims, whether through the lead plaintiff provision or otherwise?

As noted above, major institutional investors have employed the lead plaintiff device in a relatively small number of cases, and it is unclear whether more institutions will seek that position. It appears that many institutions are evaluating the outcomes of these early cases before determining whether to become involved as lead plaintiffs. But even if these early cases are successful, there are a number of structural barriers that may prevent significant institutional participation as lead plaintiffs. Many institutions may be unwilling to undergo the heightened scrutiny of their investment and trading practices that is likely to accompany an attempt to become lead plaintiff. Institutions may find that seeking the lead plaintiff position is not cost-effective or they may simply be reluctant to undertake the increased responsibility and scrutiny that comes with the role.

For these reasons, institutions that seek to become active may be more comfortable with initiatives that have both lower costs and lower visibility. These methods, which include objecting to settlements, writing letters to counsel, and opposing fee requests, have been used successfully in a number of cases, and may provide a more palatable strategy in a wider variety of cases.

It is worth emphasizing at the outset that a leading plaintiffs' class action attorney describes the Grundfest-Perino Study as "undoubtedly correct in concluding that there has been an increase in the number of securities fraud class action cases filed in state court." The fact of an increase in state court securities fraud litigation activity since passage of the Reform Act thus does not appear to be in material dispute. This increase in state class action litigation has given rise to calls for a uniform federal standard that would govern securities fraud litigation affecting national markets.

This hearing is, of course, meant to address S. 1260, the Securities Litigation Uniform Standards Act of 1997, which would achieve that result. As this Subcommittee is well aware, two additional bills currently pending in the House of Representatives, H.R. 1653 (introduced by Representative Campbell) and H.R. 1689 (introduced by Representatives White and Eshoo), also seek to create uniform national standards. S. 1260 would prohibit any state class action alleging either a misrepresentation or omission, or that the defendant used or employed a manipulative or deceptive device or contrivance, in connection with the purchase or sale of a "covered security." The definition of a "covered security" is similar to that contained in the National Securities Markets Improvements Act of 1996, and applies to securities that are listed or quoted on national exchanges or markets and to securities of investment companies registered under the Investment Company Act of 1940. S. 1260 would also permit the removal of any class action involving a covered security to federal court.

The bill is not intended to limit the scope of any state's authority to bring lawsuits alleging violations of state law. Nor is it intended to intrude upon the dominant corporate law causes of action that are traditionally the province of the states. It would, however, be a relatively straightforward matter to add to the bill a savings provision making it crystal clear that uniform federal class action securities fraud standards do not limit the authority of state agencies to prosecute violations of state securities laws. Such a provision would be wholly consistent with the structure of the Reform Act itself, which is intended to regulate only private litigation. It would also be a straightforward matter to add language assuring that uniform securities fraud litigation standards do not intrude on traditional corporate law causes of action.

The objective of this bill is, instead, to eliminate the strategic use of state securities fraud litigation as a means to evade key provisions of federal law. As the empirical evidence discussed above noted, strategic evasion can have a variety of objectives. Plaintiffs could, without limitation, pursue state litigation in order to :

1. take discovery that would be prohibited by a federal stay;
   
2. avoid defenses available pursuant to the federal forward-looking safe harbor;
   
3. plead cases where the facts alleged would be insufficient to avoid dismissal in a federal court;
   
4. avoid the need for the designation of a lead plaintiff; or
   
5. avoid heightened scrutiny of settlement terms.

In defense of the increase in state court litigation, a leading plaintiffs' counsel claims that "there are many good reasons why victims of securities fraud might prefer to attempt to litigate their claims in state court," other than simple evasion of Reform Act provisions. He observes that "[m]any state courts permit plaintiffs to recover on a 9-to-3 jury vote, as opposed to the unanimous verdict[s] required in the federal system; [that] many state laws permit a recovery upon a showing of negligence, as opposed to recklessness or intentional misconduct, and some states permit recovery without any showing of reliance." Others suggest that some states provide substantial procedural advantages for plaintiffs, such as longer statutes of limitations.

These alternative explanations for the increase in state litigation are implausible for at least three reasons. First, even if true, each of these benefits of state court litigation existed prior to the effective date of the Reform Act. If state court litigation is currently attractive for the stated non- evasive reasons, then state court litigation would have been equally attractive years ago and should have occurred with greater frequency prior to the Act's passage. But it did not. The inescapable conclusion is that the alleged pre-existing benefits of state litigation cannot be the cause of the post- Reform Act increase in state litigation.

Second, data on post-Reform Act state filings do not suggest that these proffered procedural advantages are behind the sudden shift to state court. Take for example the presence of longer limitations periods in state court. In a sample of twenty-two cases filed solely in state court since the Reform Act, the mean and median intervals between the end of the class period and the filing date are eighty-five and forty-two days. These intervals are virtually identical to the observed intervals in federal court filings, and well within the federal limitations period. Indeed, all twenty-two cases were brought within the federal period.

Third, the statistically significant differences between state and federal filings support the inference that attempts to evade the federal pleading standard are driving cases to state court. Moreover, plaintiffs' own litigation conduct demonstrates an obvious effort to avoid the mandatory discovery stay through state court litigation. Plaintiffs' actual conduct is therefore inconsistent with the proffered rationalizations for increased state court activity. Accordingly, the most reasonable explanation for the undisputed increase in state court litigation is plaintiffs' desire to evade certain Reform Act provisions.

Because state court litigation is employed as a means to evade key provisions of the Reform Act, it should come as no surprise that the debate over uniform federal securities fraud litigation standards often divides combatants along the same lines observed in the Reform Act debate. Pro- plaintiff forces who bemoan passage of the Act oppose uniform standards while pro-defense forces who support the Act's reforms call for uniformity as a necessary adjunct to reform. Viewed from this perspective, the uniformity debate is merely a reprise of the debate over the Reform Act itself.

My analysis regarding the merits of federal uniformity differs from the approaches urged by both plaintiff and defense camps. Significantly, I take no position on the ultimate wisdom of the reforms introduced by the Act, and I respect the concerns voiced by many of the Act's critics. I believe that the uniformity debate can and should be resolved according to a set of neutral principles that apply whether or not one supports the provisions of the Reform Act, and that the debate over uniformity should not be an occasion to reopen the debate over the merits of the Act.

The application of these neutral principles leads me to conclude that:

1. National markets should, for reasons wholly unrelated to the debate over the merits of the Reform Act, be governed by uniform national standards;
   
2. Under the doctrine of implied conflict preemption, many provisions of the federal securities laws including portions of the Reform Act can be interpreted as preempting conflicting provisions of state law; and
   
3. In order to promote certainty and efficiency in federal and state courts, and in our national securities market, Congress should enact legislation that makes it clear that federal antifraud standards prevail in national markets.

A. National Markets Should Be Governed by National Standards.

Our nation is blessed with vast and liquid capital markets that pay no heed to state boundaries. Whether buyers or sellers are located in New York, California, Texas, Connecticut, or Montana matters not a whit to the disclosure rules, price discovery mechanisms, or trading practices that govern transactions in national markets.

If individual states are permitted to assert individual jurisdiction over transactions in national markets, the predictable result is chaos and mayhem. To present just one illustration of the untoward consequences of unconstrained state level litigation, imagine the predicament confronting a large issuer such as IBM in the event of an allegation of fraud in connection with the purchase and sale of its securities.

If state law causes of action are permitted to proceed, IBM could be exposed to litigation in each of the fifty states under fifty different procedural and substantive standards. Many of these regimes would reflect dramatically opposed and irreconcilably different policy judgments regarding the costs and benefits of disclosure and litigation. What purpose would be served by such a proliferation of litigation?

Even if litigation could be confined to one forum, enormously complicated choice of law questions will arise regarding the application of different states' laws to different members of the class. A court may have to apply as many as fifty different substantive legal standards to members of the class. The resulting confusion and complexity will essentially replicate many of the management problems that pervade mass tort and other kinds of class actions based on state law. Again, it is difficult to recognize any socially beneficial purpose that would be served.

With different liability standards, enormous time and energy will also be devoted to resolving arcane legal questions, such as determining the particular state where the fraud allegedly took place or whether the particular state court may properly assert personal jurisdiction over the defendant. Moreover, if federal and state actions proceed simultaneously, both the courts and the parties face a significant increase in the time and costs associated with resolving the litigation.

Issues raised by forward-looking statements provide an excellent example of the substantive problems that this balkanization of the federal securities laws will inevitably create. Congress created the Reform Act's safe harbor to alleviate the chilling effect that lawsuits have "on the robustness and candor of disclosure," particularly with respect to the release of valuable forward-looking statements regarding an issuer's prospects. But if one or more states do not have similar safe harbors, then issuers face potential lawsuits and liability for actions that do not violate federal standards. Under these circumstances, issuers will naturally be reluctant to provide the forward-looking information Congress sought to elicit and the federal standard will fail its intended purpose because of the existence of inconsistent state law.

Limiting the availability of state court litigation may also protect defrauded investors because it may limit the ability of attorneys to take advantage of the Supreme Court's recent decision in Matsushita v. Epstein. That decision clarified that state court settlements may resolve Rule 10b-5 claims over which federal courts have exclusive jurisdiction. Matsushita creates the potential for what Columbia Law School Professor John C. Coffee, Jr. has dubbed a "reverse auction" in which a plaintiffs' attorney who is willing to enter a cheap settlement in exchange for a fee award files a state court action arising out of the same facts and circumstances as a presumably more aggressively litigated federal action. The defendant then has the option of negotiating a cheap global settlement with the "friendly" state court attorney that precludes further litigation of the federal claims. If a number of lawyers file separate actions in multiple states, the result could be a round of destructive competition in which each tries to underbid the others. These problems may be exacerbated if attorneys are able to identify courts that are "willing to approve settlements with less than rigorous oversight."

Issuers participating in national markets and the investors who purchase their securities have an interest in avoiding such litigation nightmares. Issuers and investors alike reasonably require that each transaction in the securities market be subject to a single, coherent, set of regulatory principles with which honest market participants can efficiently comply. It serves no rational purpose to expose honest participants in a uniform national market to conflicting and inconsistent procedural or substantive standards. In the field of securities regulation, these uniform standards are most readily articulated at the federal level.

B. The Reform Act May Already Preempt Many Conflicting Provisions of State Law.

New York's highest court recently explained that three doctrines support a finding of federal preemption over a state securities regime. First, the doctrine of "express preemption" requires specific language articulating a Congressional intent to preempt. Second, "implied field preemption" may be found when "the Federal legislation is so comprehensive in its scope that it is inferable that Congress wished fully to occupy the field of its subject matter ." Guice v. Charles Schwab & Co., Inc., 89 N.Y.2d 31, __, 674 N.E.2d 282, 285 (N.Y. 1996), cert. denied, 117 S.Ct. 1250 (1997). Third, "implied conflict preemption may be found when it is impossible for one to act in compliance with both the Federal and State laws, or when 'the state law * * * stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'."

In Guice, the court held that SEC regulations governing payments for order flow preempted state law because "[p]ermitting the courts of each state to impose civil liability on national securities brokerage firms would inevitably defeat the congressional purpose of enabling the SEC to develop and police [a] 'coherent regulatory structure' for a national market system." The application of state law antifraud principles in private litigation would, according to the court, lead to a "chaotic regulatory structure" in which brokerage firms would have to tailor communications with clients to meet fifty different state standards as well as a federal standard. The court observed further that when state law "through the imposition of common law tort liability or otherwise, adversely affects the ability of a Federal administrative agency to regulate comprehensively and with uniformity then the state law may be pre-empted even though 'collision between state and federal regulation may not be an inevitable consequence'."

The Court found implied conflict preemption notwithstanding the "savings clause" of Section 28(a) of the Exchange Act. Indeed, the Court explained that "[s]ubstantially similar savings clauses have been interpreted as only negating implied field preemption, but not conflict preemption ."

The logic of the Guice decision has substantial implications for the debate over uniformity and the Reform Act. For example, it is clearly impossible to achieve the objectives Congress intended under the mandatory stay if plaintiffs can evade the stay simply by filing individual or class action complaints in state courts. Similarly, it is impossible for the Reform Act to stimulate greater forward-looking disclosure if issuers continue to be subject to state court liability that is more expansive and pays no heed to the Reform Act's forward-looking safe harbor. Much the same can be said for state court litigation that avoids the need to designate a lead plaintiff, has no proportionate liability standard analogous to the Reform Act's, allows complaints to proceed on the basis of weaker allegations that fail to meet the Act's "strong inference" pleading requirement, and does not impose heightened scrutiny of settlement agreements. State litigation thus "stan[ds] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," and should be preempted by many of the Reform Act's provisions. Accordingly, by the logic established in Guice and based on existing precedents, there is a foundation upon which federal and state courts can conclude that several Reform Act provisions preempt conflicting or incompatible state law standards.

C. Congress Should Enact Uniform Federal Antifraud Standards.

Notwithstanding the arguments that can be made in support of implied conflict preemption under existing law, it is clear that litigation over this issue can impose substantial costs on plaintiffs and defendants alike. It is also clear that there exists a possibility that at least one of the fifty states will conclude that the Reform Act does not preempt state standards in some material respect.Indeed, plaintiffs need to identify only one state willing to act as a safe harbor for an expansive application of state law in order to wreak significant procedural and substantive confusion, impose substantial costs, and potentially gut large portions of the Reform Act.

Fortunately, Congress can put an end to this burdensome litigation by enacting legislation that makes it crystal clear that national markets are subject to uniform national standards. The debate over the most appropriate antifraud standards in national markets could then be addressed to Congress, the deliberative body that is best suited to balance competing national interests in this complex area of law. At a minimum, uniform federal standards will give the Reform Act's provisions a legitimate chance to either fail or work. It is only then that a truly informed decision can be made as to the merits of those reforms and as to whether additional reforms are needed.

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