Boston University School of Law

 

The Plight of the Individual Investor in Securities Class Actions

David H. Webber
Boston University School of Law

Boston University School of Law Working Paper 11-02

New York University School of Law
Law & Economics Research Paper Series, Working Paper No. 10-19

Forthcoming in Volume 106, Issue 1, of the Northwestern University Law Review

Abstract

Individual investors victimized by securities fraud have no voice in directing class actions brought on their behalf once institutional investors obtain lead plaintiff appointments. The same holds for state-level transactional class actions claiming breaches of fiduciary duty by boards of directors in connection with mergers and acquisitions. In theory, the interests of institutional and individual investors align, nullifying the need for a separate voice for individuals; one rationale for the lead plaintiff modifications of the Private Securities Litigation Reform Act of 1995 was that individuals would benefit from the sophistication of institutional investor lead plaintiffs. But in practice, individual investors’ interests in these actions often differ from, and may directly conflict with, those of
institutional lead plaintiffs. The routine appointment of institutional lead plaintiffs without regard to these conflicts effectively elevates the interests of institutional over individual investors, running afoul of procedural requirements that lead plaintiffs be typical and adequate class representatives. This Article examines the recurrent conflicts between these two groups of investors and suggests that the best remedy is for courts to
appoint representative individual investors as co-lead plaintiffs with institutional investors. This Article proposes a procedure for selecting such individual co-lead plaintiffs from the pool of sophisticated individuals who are likely to be class members.

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Suggested citation: Webber, David H., "The Plight of the Individual Investor in Securities Class Actions," forthcoming in Volume 106, Issue 1, of the Northwestern University Law Review.

 

David H. Webber Contact Information
dhwebber@bu.edu

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