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What Counts as Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act

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  • A. C. Pritchard
  • Hillary A. Sale

Abstract

This article presents the findings of a study of the resolution of motions to dismiss securities fraud lawsuits since the passage of the Private Securities Litigation Reform Act (PSLRA) in 1995. Our sample consists of decisions on motions to dismiss in securities class actions by district and appellate courts in the Second and Ninth Circuits for cases filed after the passage of the Reform Act to the end of 2002. These circuits are the leading circuits for the filing of securities class actions and are generally recognized as representing two ends of the securities class action spectrum. Post‐PSLRA, the Second Circuit applies the least restrictive pleading standard to securities claims and the Ninth Circuit applies the most restrictive. The Ninth Circuit's post‐PSLRA reputation as being a tougher venue in which to win securities fraud class actions is borne out by a significantly higher dismissal rate. The differences between the two circuits are also reflected in factors that correlate with dismissal. For example, allegations of violations of accounting principles other than revenue recognition correlate negatively with dismissal in the Second Circuit. This coefficient, however, is insignificant in our regressions for the Ninth Circuit. Allegations of revenue recognition violations are insignificant in both circuits, regardless of whether the issuer has been forced to restate those revenues. The circuits part ways on other factors as well: the Second Circuit is significantly less likely to dismiss cases with allegations of false forward‐looking statements, a surprising result given the stringent standards for such statements imposed by the PSLRA. The Ninth Circuit is significantly less likely to dismiss complaints with allegations of ‘33 Act violations, and the Second Circuit is more likely to dismiss cases brought by the Milberg Weiss firm. When it comes to insider trading, however, both circuits are skeptical, and the allegations correlate with dismissal in both circuits.

Suggested Citation

  • A. C. Pritchard & Hillary A. Sale, 2005. "What Counts as Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 2(1), pages 125-149, March.
    • Handle: RePEc:wly:empleg:v:2:y:2005:i:1:p:125-149
    DOI: 10.1111/j.1740-1461.2005.00033.x
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    Cited by:

    1. Xiaomeng Chen & Meiting Lu & Yaowen Shan & Yizhou Zhang, 2023. "Securities class actions and conditional conservatism: Evidence from two legal events," Accounting and Finance, Accounting and Finance Association of Australia and New Zealand, vol. 63(2), pages 2441-2471, June.
    2. Hassan, M. Kabir & Houston, Reza & Karim, M. Sydul, 2021. "Courting innovation: The effects of litigation risk on corporate innovation," Journal of Corporate Finance, Elsevier, vol. 71(C).
    3. Al-Hadi, Ahmed & Habib, Ahsan, 2023. "Consequences of state-level regulations in accounting, finance, and corporate governance: A review," Advances in accounting, Elsevier, vol. 60(C).
    4. Stephen J. Choi & Karen K. Nelson & A. C. Pritchard, 2009. "The Screening Effect of the Private Securities Litigation Reform Act," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 6(1), pages 35-68, March.
    5. Blakeley B. McShane & Oliver P. Watson & Tom Baker & Sean J. Griffith, 2012. "Predicting Securities Fraud Settlements and Amounts: A Hierarchical Bayesian Model of Federal Securities Class Action Lawsuits," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 9(3), pages 482-510, September.
    6. Kim, Irene & Skinner, Douglas J., 2012. "Measuring securities litigation risk," Journal of Accounting and Economics, Elsevier, vol. 53(1), pages 290-310.
    7. Joshua Cutler & Angela K. Davis & Kyle Peterson, 2019. "Disclosure and the outcome of securities litigation," Review of Accounting Studies, Springer, vol. 24(1), pages 230-263, March.
    8. Clive Lennox & Bing Li, 2020. "When Are Audit Firms Sued for Financial Reporting Failures and What Are the Lawsuit Outcomes?," Contemporary Accounting Research, John Wiley & Sons, vol. 37(3), pages 1370-1399, September.
    9. Anutchanat Jaroenjitrkam & Sirimon Treepongkaruna & Pornsit Jiraporn, 2022. "Does shareholder litigation risk promote or hinder corporate social responsibility? A quasi‐natural experiment," Corporate Social Responsibility and Environmental Management, John Wiley & Sons, vol. 29(3), pages 657-674, May.
    10. Dain C. Donelson & Justin J. Hopkins, 2016. "Large Market Declines and Securities Litigation: Implications for Disclosing Adverse Earnings News," Management Science, INFORMS, vol. 62(11), pages 3183-3198, November.
    11. Douglas Cumming & Na Dai, 2009. "Capital Flows and Hedge Fund Regulation," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 6(4), pages 848-873, December.
    12. Brochet, Francois & Srinivasan, Suraj, 2014. "Accountability of independent directors: Evidence from firms subject to securities litigation," Journal of Financial Economics, Elsevier, vol. 111(2), pages 430-449.
    13. Dewan, Yasir, 2019. "Corporate crime and punishment : The role of status and ideology," Other publications TiSEM 08d87b94-7449-4a1f-a3ae-0, Tilburg University, School of Economics and Management.
    14. Allen H. Huang & Jianghua Shen & Amy Y. Zang, 2022. "The unintended benefit of the risk factor mandate of 2005," Review of Accounting Studies, Springer, vol. 27(4), pages 1319-1355, December.
    15. Nguyen, Nam H. & Phan, Hieu V. & Lee, Eunju, 2020. "Shareholder litigation rights and capital structure decisions," Journal of Corporate Finance, Elsevier, vol. 62(C).
    16. Lennox, Clive & Li, Bing, 2014. "Accounting misstatements following lawsuits against auditors," Journal of Accounting and Economics, Elsevier, vol. 57(1), pages 58-75.
    17. Yiwei Li & Wei Song & Tingyu Sun & Qingjing Zhang, 2023. "The impact of shareholder litigation risk on income smoothing," Review of Quantitative Finance and Accounting, Springer, vol. 61(4), pages 1379-1413, November.
    18. Karen K. Nelson & A. C. Pritchard, 2016. "Carrot or Stick? The Shift from Voluntary to Mandatory Disclosure of Risk Factors," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 13(2), pages 266-297, June.
    19. Dain C. Donelson & Justin J. Hopkins & Christopher G. Yust, 2018. "The cost of disclosure regulation: evidence from D&O insurance and nonmeritorious securities litigation," Review of Accounting Studies, Springer, vol. 23(2), pages 528-588, June.
    20. Jae Hwan Ahn, 2022. "The road not taken: A comparison of Accounting and Auditing Enforcement Releases and securities class actions," Journal of Business Finance & Accounting, Wiley Blackwell, vol. 49(9-10), pages 1489-1529, October.
    21. Stephen J. Choi & Theodore Eisenberg, 2010. "Punitive Damages in Securities Arbitration: An Empirical Study," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 497-546.
    22. Chu, Yongqiang, 2017. "Shareholder litigation, shareholder–creditor conflict, and the cost of bank loans," Journal of Corporate Finance, Elsevier, vol. 45(C), pages 318-332.
    23. Wang, Qiming & Cheng, C.S Agnes & Lian, Qin & Liu, Cathy Zishang, 2022. "Law firm market share and securities class action litigation outcomes," The Quarterly Review of Economics and Finance, Elsevier, vol. 84(C), pages 596-609.

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