Who Won with Halliburton?

Hillary A. Sale

Simple. The lawyers. Cases will take longer to settle, litigation will be prolonged, and the outcome will be more legal fees – with no indication that it will actually improve outcomes.

There’s a certain irony in all of this – after all, the lawyers on the side of the defendants who argued in favor of limiting the fraud on the market presumption stood to lose a lot. Indeed, the elimination of the doctrine would have had dramatic implications for the class action practice of securities litigation. Now, those same lawyers stand to win. How?

Let’s take a step back to the 1995 Private Securities Litigation Reform Act, and the role that it played in securities litigation. One of the key aspects of that legislation was the heightened pleading standard. By all accounts, the heightened pleading standard made it more difficult for cases to survive a motion to dismiss. One result was increased settlement value for the cases that do survive that far, arguably those more likely associated with securities law violations. Another result has been increased litigation of other aspects of the cases – and, therefore, more legal fees – on an hourly basis for the defense-side lawyers.

So, what now? Well, Halliburton in even its most narrow form allows for more litigation at the class certification stage but may not cull cases before settlement the way that the PSLRA did.  Instead, the focus will now be on market efficiency, and the pre-settlement litigation will be prolonged.

Who will pay for all of this litigation? The shareholders.  When cases settle under the policy limits, the shareholders pay, but indirectly, through insurance costs. Now, arguably, the incentive to litigate to the policy limits has increased. If the lawyers and econometricians exhaust the insurance policy, however, and the claims have merit, the plaintiffs will have settlement leverage.  The result will be settlements paid by the entity (and not usually the individuals), and the shareholders will pay more directly for the costs of the settlement. So the lawyers win, as do the econometricians, but the shareholders lose.

Hillary A. Sale is the Walter D. Coles Professor of Law and Professor of Management at Washington University in St. Louis.