The Milberg Effect? Not So Much
The WSJ had a Review and Outlook piece yesterday entitled "The Milberg Effect," which argues that the projected drop-off in securities class action cases in 2006 suggested by a recent study is due to a reduction in the number of cases filed by the law firm Milberg Weiss. According to the WSJ piece,
According to Cornerstone, a research firm that tracks litigation, law firms filed 179 class actions last year. The first six months of this year saw only 61, a rate that would result in about 123 class actions for the year -- or a decrease from 2005 of 56 suits. Meanwhile, according to publicly available press releases, Milberg Weiss filed 91 of last year's suits. Yet in the first six months of this year, having come under prosecutorial scrutiny and lost many lawyers, the firm has filed only 17. At this rate, Milberg would tally about 34 suits for the year -- or 57 fewer than 2005.
These numbers are more than a coincidence, and should put to rest the assumption that Sarbanes-Oxley or better corporate governance standards are producing fewer causes of legal action. Securities lawyers have long understood that most class actions have little or no substance but are manufactured by the plaintiffs bar to pad their own pocketbooks.
This is simply wrong. Contrary to the conclusion in the piece above, the projected overall drop-off of 56 class actions in 2006 and the projected Milberg drop-off of 57 class actions filings is a coincidence. The flaw in the WSJ's analysis is that it rests on the false assumption that each of the companies that are the subject of a securities class action are sued by only one law firm. That is not the case.
To develop this point a bit, the Cornerstone study projects that at the current rate, 123 companies will be the subject of a securities class action lawsuit this year--56 fewer than in 2005. It is critical to note here, however, that virtually all (let's conservatively go with 90%) of these 123 cases will involve multiple complaints filed by multiple law firms. Indeed, many companies will be sued by a dozen or more different law firms. Using this conservative 90% figure, if Milberg does file 57 fewer complaints in 2006, this drop-off will only impact the total number of companies that are the subject of a securities class action in the 10% of Milberg's filings where it is the only law firm to file a complaint. So we're looking at a possible reduction of 5 or 6 cases (5.7 to be exact), not 57 cases.
The Milberg Effect? Not so much.
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Comments
That there are multiple law firms representing multiple lead plaintiffs does not necessarily mean there is no Milberg effect.
Milberg is/was the initial filer in many of these cases. The link you assume is that multiple firms just file away at the same time causing multiple law firms to represent cases; but many firms enter many of these securities cases because of the PSLRA notice provisions (and lead plaintiff proceedings). To map out: (1) Milberg files lots of suits (2) Milberg has to file notices under PSLRA for all these cases (3) other firms see notice, find (proposed) lead plaintiffs and join in (4) leading to "multiple law firms" on plaintiffs' side.
Milberg was clearly the volume filer (with Lerach the only other firm close) on the plaintiff's security bar.
Thus, it is plausible that the decline in Milberg filings is causing the overall decline.
Posted by: guest | September 13, 2006 3:08 PM
Valid point, however, there are probably 50+ firms out there now that are equipped to handle these cases. Maybe a few of these are afraid to be the first-filer, but I doubt there are many. I would agree that there are probably a handful of cases that Milberg sniffed out and filed on that never would have been found/filed on by others, but not more than that. So add another 5 cases to the 5.7. Even if you add another 10 on that total of 15 does not even come close to matching the projected drop off of 56 cases.
Posted by: Bruce Carton | September 13, 2006 3:15 PM
I agree. It's interesting to note that the quoted article claims to put to rest the idea that better corporate governance and/or SOX is affecting securities litigation -- precisely what the Corningstone research report indicates may be behind the trend! With a quick (and flawed) "mathematical" argument the article presumed to understand the research better than the researchers.
Of course, all of this ramble is precisely why I have such a disdain for the reliance on statistics in certain fields (while I majored in math as an undergraduate, my statistics courses were in the "social sciences" department!).
Posted by: guest | September 13, 2006 4:05 PM