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Monday, November 28, 2005

Still More on the ILR Study

Investment News has this article offering analysis of the ILR study previously discussed at length here and elsewhere on SLW.  The article includes the following quotes from me:

Some involved in tracking securities litigation question the study's results. "It's a strange way to look at it," commented Bruce Carton, vice president of Securities Class Action Services, a service offered by Institutional Shareholder Services Inc. in Rockville, Md., that tracks securities litigation and files claims for about 100 institutions.

He cites as an example losses of billions of dollars by the New York State Common Retirement Fund in Albany as a result of fraud perpetrated by WorldCom Inc., now MCI Inc. of Ashburn, Va. "They lost that money," Mr. Carton said. "They bought WorldCom securities and took a huge hit. The premise of the study appears to be that somewhere else they were the beneficiaries of holding inflated stock that that they sold at a good time. Who's to say that that's true or not? In any individual case, you're never going to know."

Further, Mr. Carton argued, large institutional investors invest money for individuals. "A pension fund or a mutual fund ultimately is making money to distribute to you and I."

I'm still waiting for some explanation why the second point above--that institutions  such as pension funds and mutual funds are aggregations of individual investor interests--does not undercut the study's conclusion that individual investors get the "short end of the stick" because, unlike institutions, they are unlikely to be sufficiently diversified  to get enough of the "'winning' transactions (i.e., from selling a security at what is alleged to be an artificially inflated price)" to offset their losses from "losing" transactions caused by securities fraud. 

The article also notes that the ILR's goal is to advance legislation dealing with securities litigation, and is looking at areas such as "how damages are calculated in securities class actions; stopping discovery proceedings while defendants' motions to dismiss cases are pending; requiring lead plaintiff's attorneys to bid competitively to be named lead counsel in class actions; as well as ways to better distribute funds to individual investors." 

I think all of these areas are worthy of some real scrutiny (although discovery already is supposed to be stayed under the PSLRA while a motion to dismiss is pending).  I just don't find the ILR study (as I understand it) to be a real red flag indicating that securities litigation reform is necessary.  To me, it seems like another reminder to investors of the importance of diversification.

Comments

I think the Study has many flaws, and seems very politically oriented. Its failure to note the role of private securities litigation in law enforcement is a significant omission.

However, its implied or express criticism of the legal costs has great validity. For funds that have stood by while plaintiffs' counsel asked for, and received, 20 to 33% the following from the WSJ of 9/2/05 should have been an eye opener.

>

Institutions are now reining in the fees for the mega cases by their lead counsel role, but legions of small to medium cases, even sub-mega, continue to garner plaintiffs' counsel fees up to 33%, costing funds, and their participants, hundreds of millions in the aggregate. When I go in front of a federal judge for an individual investor the class attorneys inevitably tell the judge that if there was real problem with their fee the funds, with so much at stake, would be there.

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