Private Litigation and the Deterrence of Corporate Misconduct

Cox discusses the linkage between private litigation and the deterrence of corporate misconduct

Premises for Reforming the Regulation of Securities Offerings: An Essay

Cox discusses six fundamental tenets that should guide the regulation of public offerings of securities. It is assumed that regulation is to be re-examined from the ground up, with no political or regulatory constraints

The Oligopolistic Gatekeeper: The U.S. Accounting Profession

The accounting and financial scandals the last few years not only produced the Sarbanes-Oxley Act, but have prompted a good deal of debate what forces led to so many dramatic reporting failures. This article is the only work to examine how the competitive structure of the accounting industry contributed to its movement from being a profession to a business that performed auditing. In the article we find not only documentation that the accounting profession is an oligopoly but a sound explanation of how its poor structure contributes significantly to negative social welfare. Throughout the article provides rich support of data to support explanations of the forces that have impacted the accounting profession as well as financial reporting. Most importantly, the article connects how the accounting profession\u27s poor competitive structure likely contributed to the financial and accounting scandals of 2001 and 2002 by making it possible for the mangers of their audit clients to trade off better audits for consulting services. The article also provides insight into weaknesses that continue even after reforms such as those introduced by Sarbanes-Oxley. Several steps to strengthen the accounting industry so that it can return to being a zealous gatekeeper are also proposed in the article

How Understanding the Nature of Corporate Norms Can Prevent Their Destruction by Settlements

Scholars have long celebrated the importance of norms in corporate law. Indeed, norms likely guide corporate actors more than the omnipresent threat of shareholder suits. This Article divides corporate norms into two distinct groups: aspirational norms and arbiter norms. Aspirational norms announce socially desirable objectives for corporate managers and encourage certain disclosure practices; arbiter norms identify distinct transactions for closer scrutiny by an independent body, the court. This Article shows that even though aspirational norms and arbiter norms serve different objectives, they share a common characteristic—overbreadth. This feature exists whether the norm is set forth by statute or found in judicial doctrine. Such overbreadth explains some, but by no means all, of the problems accompanying shareholder litigation, including the frequency of suits and inconsequential settlements. This Article also develops the paradoxes that accompany corporate norms. The inherent overbreadth of both aspirational and arbiter norms can be of great assistance to their protection against inconsequential settlements. Using the recent decision In re Trulia, Inc. Stockholder Litigation, this Article addresses how courts can fulfill their role in the non-adversarial setting of the settlement hearing. When asked to approve a settlement, the court should anchor its scrutiny of the adequacy and reasonableness of a settlement in the norm that is central to the suit. By doing so, the court can more positively contribute to the ongoing development of corporate norms

Understanding Causation in Private Securities Lawsuits: Building on Amgen

With Amgen, the Supreme Court’s majority once again holds that inquiry into the alleged market impact of a misrepresentation is not required to invoke fraud on the market approach to causation so that the class can be certified. Rather than just leaving matters where they have been since the Supreme Court’s muddled encounter with causation in Basic Inc. v. Levinson, the Supreme Court’s most recent decision appears to relax some earlier-held tenets with respect to markets believed sufficiently efficient for fraud on the market to be invoked. This Article not only identifies the central flaw of Basic that has over the decades distorted applications of fraud on the market but also suggests how, building on Amgen, what the future focus should be in considering whether a suit can proceed as a class action based on fraud on the market

We\u27re Cool Statements After Omnicare: Securities Fraud Suits for Failures to Comply with the Law

As part of a symposium celebrating the multiple contributions of the late Alan Bromberg, this article examines implications flowing from the Supreme Court’s recent decision in Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund. Because Omnicare lands so squarely on the Court’s earlier opaque opinion in Virginia Bankshares, Inc. v. Sandberg addressing the treatment of the materiality of opinion statements, Omnicare is the new currency in the realm that will have far-reaching implications. In Virginia Bankshares, the Supreme Court quickly concluded shareholders would attach significance to the board of directors’ statement that the cash-out merger price was “fair” and “high” so that the statement met the materiality standard, but emphasized there was another, more perplexing, issue: whether such an opinion statement was a statement of fact. On this question, Virginia Bankshares’ formulation is hopelessly ambiguous. As developed in this article, Omnicare Inc. returns the focus to the traditional orientation of the information’s significance to the investor and thereby not only provides an understandable, indeed conventional vis-à-vis the common law, but also harbors the strong potential to dramatically change existing approaches to how we view general statements that provide optimism and reassurance, for example “puffery statements” or even what constitutes “meaningful cautionary language under the Bespeaks Caution Doctrine. The article also provides insight to how Omnicare complements the positive contributions of state law doctrine that has developed in the wake of Omnicare Inc. v. NCS Healthcare, Inc. that extended the directors’ monitoring duty to their oversight of compliance systems