A Corporation’s Securities Litigation Gambit: Fee-Shifting Provisions That Defend Against Fraud-on-the-Market

Steven W. Lippman *

A major issue in today’s corporate landscape is the growth of shareholder litigation. The typical types of claims brought by shareholders are derivative claims and class action claims. Specifically, derivative claims aimed at merger transactions were filed in over 90% of corporate mergers and acquisitions valued at $100 million since 2010.[1] As for securities class action claims—the topic of this comment—there have been an average of 191 filings per year since 1997.[2] Of the 166 securities class action claims in 2013, 84% involved Rule 10b-5 claims.[3] Claims alleging a violation of Section 10(b) of the Securities and Exchange Act of 1934 contend that the company made fraudulent misstatements or omissions that violate federal securities laws.[4] The ability to bring class action suits has its foundation in both statutory regimes and common law principles.[5]

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* J.D. Candidate 2016, University of Richmond School of Law. B.B.A., 2012, James Madison University. I am forever grateful for the love and support from my parents and my grandmother, Irene Lippman. I would like to thank the editors and staff of the University of Richmond Law Review for their hard work in making this publication possible.

        [1].    Lisa A. Rickard, Delaware Flirts with Encouraging Shareholder Lawsuits, Wall St. J. (Nov. 14, 2014), http://www.wsj.com/articles/lisa-rickard-delaware-flirts-with-encour aging-shareholder-lawsuits-1416005328.

        [2].    Cornerstone Research, Securities Class Action Filings—2013 Year in Review 1 (2014), available at https://www.cornerstone.com/GetAttachment/d88bd527-25b5-4c54-8d40-2b13da0d0779/Securities-Class-Action-Filings-2013-Year-in-Review.pdf. While there has been a decline in the number of filings in recent years, there was an increase in the number of filings from 2012 to 2013. Id.

        [3].    Id. at 1, 7.

        [4].    15 U.S.C. § 78j(b) (2012).

        [5].    Class Action: An Overview, Legal Info. Inst., https://www.law.cornell.edu/wex/ class_action (last visited Apr. 3, 2015).