In January 2008, the U.S. Supreme Court in the Stoneridge case followed its prior decision in Central Bank of Denver and held that there is no private right of action for "scheme liability" or aiding and abetting under the federal securities laws, ruling that Congress had reserved to the SEC the right to enforce aiding and abetting liability.
But what Congress has decreed, Congress can also change, and change is what Senator Arlen Specter proposed on July 30, 2009 when he introduced Senate Bill 1551, "The Liability for Aiding and Abetting Securities Violations Act of 2009." If enacted, the bill would, in effect, legislatively overturn Stoneridge by amending the securities laws to allow private litigation against a person that provides "substantial assistance" in a violation of the securities laws.
On September 17, 2009, the bill had its first committee hearing at a session of the Subcommittee on Crime and Drugs of the United States Senate Committee on the Judiciary. A link to the Subcommittee proceedings site for the session, including links to the written witness testimony, can be found here. A September 18, 2009 memorandum (here) by Leslie Platt and Kimberly Melvin of the Wiley Rein law firm provides an excellent and detailed summary of the Subcommittee’s proceedings. (Thanks to Kim Melvin for providing a copy of the memorandum.)
Of particular interest among the witnesses’ written statements is the testimony of University of Michigan Law Professor Adam Pritchard opposing the bill (here), and the testimony of Columbia Law Professor John Coffee supporting the bill (here), subject to certain suggested amendments.
Professor Coffee suggests that "it is anomalous that one could be criminally liable of aiding and abetting by not civilly liable for the same conduct in a private suit." He also argues that allowing private suits for aiding and abetting would be "the most realistic means to prevent misconduct," because it would "deter those who have less to gain" from fraudulent misconduct, who also have "the ability to block the transaction."
Professor Pritchard by contrast argues that the bill would "tear down the safeguards" instituted in Central Bank and Stoneridge, "creating the potential for the securities laws to be injected in a wide range of ordinary commercial transactions." Enacting the bill would also, Professor Pritchard contends "undermine the United States’s international competitiveness and raise the cost of capital." The goal of the bill, he contends, is simply "to rope in more ‘deep pocket’ defendants to feed the plaintiff’s bar’s lucrative class action machine." The written testimony of Robert J. Giuffra, Jr., a partner at the Sullivan Cromwell law firm, is very much in the same vein as Pritchard’s.
In the Wiley Rein memo linked above, the authors advise that the bill will next likely be marked up for presentation to the full Senate. The current legislative calendar is remarkably full, and therefore the bill may not be considered before the end of 2009 – but, the authors note, "the 111th Congress does not end until 2010." The bill could also be "incorporated into a larger finance, banking or securities-related bill."
Could the Bill Pass?
Two years ago, a bill of this type would have stood little chance. The dynamic at the time was against further regulatory constraints and in favor of markets and the kind of "light touch" prevailing in the U.K. But the events of the past two years, both political and economic, have changed all that and the changed circumstances may substantially increase the likelihood of the bill’s passage. The sweeping Democratic victory in the 2008 elections and current popular need to assign blame for the global economic crisis will likely increase the collective willingness of Congress to remove barriers to the imposition of liability.
But separate and apart from these considerations that might suggest a Congressional inclination in favor of the bill, there are a variety of other factors that might further increase the possibility that the bill could pass.
First, the courts have presented Congress with an engraved invitation to implement these changes. The most prominent example of this is the March 17, 2009 opinion (here) by then-Southern District of New York Judge Gerald Lynch in the Refco case. (On September 17, 2009, the Senate confirmed Judge Lynch’s nomination to the Second Circuit.) In the opinion, Judge Lynch dismissed the securities claims filed against a lawyer that had advised the client later criminally convicted of securities fraud.
Judge Lynch commented that "it is perhaps dismaying that participants in a fraudulent scheme who may even have committed criminal acts are not answerable to the victims of the fraud." Judge Lynch stated that the Congressional decision to leave the enforcement of aiding and abetting liability solely to the SEC "may be ripe for re-examination." He noted that "while the impulse to protect professionals and other marginal actors who may too easily be drawn into securities litigation may well be sound, a bright line between principles and accomplices may not be approximate."
The sentiment expressed in the opinion of a judge as respected as Judge Lynch could provide intellectual cover, and perhaps even policy justification, for Congress to take steps to which it is likely already inclined.
Second, as a result of its fumbled opportunities to investigate Bernard Madoff and other developments, the SEC’s regulatory credentials are held in particularly low regard right now, which underscores the concern with leaving aiding and abetting enforcement exclusively with the SEC.
As Professor Coffee noted in his written testimony, "does anyone really believe today, in this post-Madoff world, that the SEC, by itself, can adequately deter most secondary participants in securities frauds?" He added that the SEC is "cost constrained, has limited personnel and a large backload of cases," noting that the SEC "sometimes missed for years frauds (such as Madoff and Stanford Ponzi schemes) that others had begun to suspect."
Third, in the wake of the global financial crisis, there is particularly strong public sentiment in favor of holding gatekeepers accountable. The gatekeepers most frequently cited are the rating agencies, but other gatekeeper scapegoats include auditors, lawyers and offering underwriters. Riding alongside this general public outrage is a parallel public perception that the SEC has so far at least has done relatively little in the wake of the subprime meltdown and global financial crisis to target and pursue wrongdoers, a perception that puts further stress on the SEC’s exclusive right to pursue aiding and abetting liability claims.
A final consideration that could increase the likelihood of the bill’s passage is a bill amendment Professor Coffee has proposed. He suggests placing a ceiling on liability for secondary defendants of $2 million for individuals and $50 million for corporations, subject to the further provision that the award should not in any event exceed the greater of ten percent of the defendant’s average income; net worth; or market capitalization. Professor Coffee’s proposed ceiling, if adopted, could further advance the likelihood of the bill’s passage.
What Happens if the Bill Passes?
Of course, it remains to be seen if the bill will in fact pass. Congress is extraordinarily preoccupied right now, and the bill’s opponents, who are legion, will be well-organized and active. The bill could yet wind up on the dust heap of failed legislative initiatives.
But what happens if it does pass? Well, at a minimum, the roster of defendants in securities class action lawsuits will be greatly expanded, and public companies’ outside professional advisors increasingly will find themselves named as co-defendants in securities suits along with their client companies. The likely costs of defense alone for these gatekeeper defendants will be enormous, which in turn will create significant pressure for these gatekeeper defendants to settle, at least for cases surviving initial dismissal motions. In short, if the bill passes, look for the cost of professional liability insurance to escalate. (Indeed, Coffee cited concerns about the availability of professional liability insurance as one reason to justify the adoption of a secondary liability ceiling.)
That said, plaintiffs seeking to pursue claims against the gatekeepers would still have to satisfy the PSLRA’s requirement that the complaint plead "with particularity facts giving rise to a strong inference that the defendant acted with the requisite state of mind." This hurdle is hard enough for plaintiffs to satisfy with respect to primary actors; it will be that much more challenging in connection with allegations against secondary actors. Moreover, the PSLRA’s proportionate liability provisions at least theoretically should reduce the liability that would be imposed on less culpable defendants.
But while the potential exposure the bill might pose for gatekeepers is an interesting question, it is not the only question the bill’s passage would present. The potential liability of other companies and their directors and officers for aiding and abetting claims is a related and equally serious question that the bill’s passage would present.
In that regard, it is important to keep in mind that aiding and abetting defendants in the Stoneridge case were not Charter Communications’ outside professionals. Rather, the defendants against whom the plaintiffs sought to impose secondary liability were Scientific Atlanta and Motorola, who were acting as customers and suppliers that allegedly facilitated a "round trip" revenue scheme so that Charter could hit its revenue targets.
My point here is that the potential defendants who could find themselves drawn into securities class action lawsuits on aiding and abetting claims if the bill passes will include not just gatekeepers but also other companies whose business transactions with the alleged primary violator are alleged to have aided and abetted the securities fraud.
In other words, were Senator Specter’s bill to pass, it would not only greatly expand the potential securities liability exposure for companies’ outside professionals. It would also expand the potential securities liability exposure of all companies that transact business with public companies.
At a minimum, this possibility has significant implications for D&O insurance coverage. In particular, the way in which the term "securities claim" is defined in the D&O insurance policy could become even more important than it is now. Currently, there are two variations in the way the term is defined. Under one formulation, the term is defined solely with reference to violations alleged in connection with the purchase or sale of the insured company’s own securities. In the other formulation, the term is defined with respect to any alleged violation of the securities laws. (To be sure, there are some definitions that incorporate both formulations.)
The first formulation potentially might be too narrow to encompass a claim that the insured company aided and abetted a securities law violation by another company. Clearly in anticipation of the possibility that the Specter bill might pass, it is critically important to carefully review the D&O policy’s definition of the term "securities claim" to ensure that it is sufficiently broad to encompass aiding and abetting claims.
A more challenging issue may arise with respect to private companies. There is nothing about the kind of vendor wrongdoing alleged in the Stoneridge case that would restrict the possibility of a claim on that basis solely to public companies. These kinds of allegations clearly could also be alleged against private companies as well. But private company D&O insurance policies usually contain some form of securities claim exclusion. These exclusions typically are tied to the public offering of the insured company’s own securities. But in light of the possibility of aiding and abetting claims even against private companies, these private company D&O insurance policy exclusions should be carefully scrutinized to determine how they might affect coverage under the policy in the event of an aiding and abetting claim against the insured private company.
A final note about the possibility of private litigant aiding and abetting claims is that, were the bill to be enacted, it could enormously complicate the jobs of professional liability insurance underwriters. The potential liability exposures of both outside professionals and of companies that do business with public companies will be expanded, in ways that traditional underwriting tools may be ill-suited to test and measure. It seems probable that underwriters may attempt to raise rates as the only instrument available to protect insurers from the possibility of expanded aiding and abetting liability exposure.
Special thanks to the several loyal readers who have sent me links regarding the Specter bill.
And While You’re At It, Congress: Stoneridge is not the only Supreme Court decision that Senator Specter has targeted. In addition, on July 22, 2009, Senator Specter introduced Senate Bill 1504 , "Notice Pleading Restoration Act of 2009," the purpose of which is to legislatively overturn the Supreme Court’s decision in the Iqbal case. Iqbal, building on the Court’s previous holding in the Twombley case, held that in order to survive initial motions to dismiss, plaintiffs’ complaints must provide "facial plausibility" for the claims asserted.
Unlike his Stoneridge bill, Specter’s Iqbal bill has not yet made it to committee review. According to Tony Mauro’s September 21, 2009 Law.com article (here), civil rights and consumer groups and trial lawyers have been meeting and conferring on ways to advance the legislation or otherwise to try undo Iqbal. According to the article, Iqbal has already had a very significant impact – it has already "produced 1,500 district court and 100 appellate court decisions."
Whether or not these legislative efforts ultimately succeed, it is clear that the plaintiffs’ bar and their allies intend to try to circumvent the effects of a string of defense-friendly Supreme Court rulings. The current Congressional logjam will clearly be a factor in whether or not these bills even make it through the process. The more interesting question is whether the pendulum has swung enough as a result of the current economic crisis that these legislative initiatives will carry the day.