Law Commons^™

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

Law, Ideology, And Strategy In Judicial Decisonmaking: Evidence From Securities Fraud Actions, Michael A. Perino

Faculty Publications

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high-court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some …

Did The Private Securities Litigation Reform Act Work?, Michael A. Perino

Faculty Publications

In 1995 Congress passed the Private Securities Litigation Reform Act (the PSLRA or the Act) to address abuses in securities fraud class actions. In the wake of Enron, WorldCom, Adelphia, and other high profile securities frauds, critics suggest that the law made it too easy to escape liability for securities fraud and thus created a climate in which frauds are more likely to occur. Others claim that the Act has largely failed because it did little to deter plaintiffs' lawyers from filing nonmeritorious cases. This article employs a database of the 1449 class actions filed from 1996 through 2001 to …

Sec Enforcement Of Attorney Up-The-Ladder Reporting Rules: An Analysis Of Institutional Contraints, Norms, And Biases, Michael A. Perino

Faculty Publications

In their paper and in their earlier comments to the SEC on the proposed attorney reporting rules, Professors Cramton, Cohen and Koniak do an excellent job recounting the genesis of the attorney reporting requirements in the Sarbanes-Oxley Act, describing the SEC's proposed and final rules and critiquing the rule's triggering mechanism and now apparently shelved noisy withdrawal requirement. Their case study of the recent Spiegel, Inc. independent examiner's report is a particularly useful vehicle for examining the practical implications of the SEC's policy and drafting choices. Although I was a member of a committee that submitted comments opposed to noisy …

Enron's Legislative Aftermath: Some Reflections On The Deterrence Aspects Of The Sarbanes-Oxley Act Of 2002, Michael A. Perino

Faculty Publications

Since Enron's implosion, an astounding string of accounting scandals have stunned the securities markets. Global Crossing, WorldCom, Adelphia, and a host of other companies have seen plummeting share prices and SEC and criminal investigations. Congress's reaction has been equally stunning and surprisingly swift. It passed with near unanimity the Sarbanes-Oxley Act of 2002 (the "SOA" or the "Act"), and President Bush quickly signed it into law. The President billed the Act as one of the "the most far-reaching reforms of American business practices since the time of Franklin Delano Roosevelt." While the SOA is certainly lengthy, with eleven titles and …

Securites Law For The Next Millennium: A Forward-Looking Statement, Michael A. Perino

Faculty Publications

This article serves as the introduction to a symposium on the future of the securities markets and securities regulation which was held as part of St. John's University School of Law's year-long 75th anniversary celebration. The introduction serves to place the symposium in an historical context to set the stage for a discussion of the future.

Fraud And Federalism: Preempting Private State Securities Fraud Causes Of Action, Michael A. Perino

Faculty Publications

The passage of the Private Securities Litigation Reform Act of 1995 has engendered a significant forum shift in class action securities fraud litigation, from federal to state court. This unintended by-product of the Act has reignited debate over our dual federal-state system of securities regulation and in turn has inspired a discussion as to whether Congress should now preempt state securities fraud causes of action. This article argues that preemption is an appropriate, but not the only, solution to these concerns. To support this argument, this article first traces the history of dual state-federal securities regulation within the context of …

The Pentium Papers: A Case Study Of Collective Institutional Investor Activism In Litigation, Joseph A. Grundfest, Michael A. Perino

Faculty Publications

This article suggests that institutional investors have rational incentives to become more active in the litigation arena, but that the current debate is falsely constrained because it rests on the assumption that institutional investors must participate either by (1) assuming the formal role of lead plaintiff, class representative, or intervenor or, (2) not participating at all. This is a false dichotomy because, as this article demonstrates, institutions have available to them a rich array of flexible, informal, and relatively inexpensive mechanisms by which they can make their views known to litigants and courts alike.

Our hypothesis that institutional investor activism …

Not Just A Private Club: Self Regulatory Organizations As State Actors When Enforcing Federal Law, Richard L. Stone, Michael A. Perino

Faculty Publications

In the Securities Exchange Act of 1934, Congress enacted a comprehensive scheme for regulating the national securities markets. Pursuant to that scheme, the Securities and Exchange Commission was given ultimate authority to enforce the newly enacted securities laws against market participants. The Exchange Act also created a prominent enforcement role for national securities exchanges, like the New York Stock Exchange. Congress required these self-regulatory organizations as a condition for their continued operation to enforce, among other things, compliance by their members with the provisions of the Exchange Act and the rules and regulations promulgated thereunder. The SROs were also given …