Underwriter Laddering: The Next Step in Securities Class Actions
Class Action Watch Winter 2002
January 1, 2002
In the midst of the decline of the technology sector, investors are suing failed dot.com companies and their initial public offering (IPO) underwriting banks for misleading investors through use of a process called "laddering." Plaintiff stockholders contend that well known brokerage houses insisted that clients, as a condition for buying low offering-price stocks, lock into buying more after-market" shares of the same stock at predetermined higher prices. Stock values rose, in some cases up to 400% of the original IPO value, at which point the preferred clients could sell the stock for the high price, with large commissions going to brokers. Plaintiffs assert that materially false and misleading prospectus statements detailing these inflated stock values and the rise of the stock price render certain named defendant dot.com companies liable under Section 11 of the 1933 Securities Act, which prohibits material misrepresentations or omissions in a prospectus or registration statement. In addition, plaintiffs also assert that the underwriters of defendant dot.coms are liable for arranging schemes such as kickbacks to investment banks and forced "tie-in" agreements that are prohibited by the Sherman Act.
Underwriter laddering cases, as they are known, have resulted in over 150 securities class actions filed this year. Thus far, all the cases have been coordinated before Judge Shira Sheindlen of the Southern District of New York. Milberg Weiss reportedly makes 5 filings per day, and Wolf Holdenstein, Stull Stull & Brody, Lovell Stewart, and Bernstein Litowitz also represent aggrieved investors suing underwriters. Recently Judge Kaplan SDNY has used an auction-bidding process to assign lead counsel to unrelated class actions, so attorneys may be competitively bidding for the chance to win a judgment against the $200 billion investment industry. Professor Joseph Grundfest of the Stanford Law School, a former SEC commissioner, thinks it will be hard for any plaintiffs to prove that laddering is illegal, and even harder to prove injury "given the dynamics of after-market behavior, it will be very difficult to prove they suffered damages".
The defendant underwriters contend that the market, especially in a new industry, like the Internet marketplace, is bound to fluctuate. The defense bar argues that in order to evaluate a fair offering price for stock, a broker must gauge investor interest in buying in the after-market phase. The coordinated cases involve virtually all the well known Wall Street brokerage houses, including Lehrman Brothers, Merrill Lynch, Morgan Stanley, BancBoston, and Solomon Smith Barney. Though many of the dot.com defendants are now defunct, and tapped of all resources, they carry D & O insurance policies which can yield up to $20 million.
These class action filings and the associated press coverage has attracted the interest the Justice Department and the Securities and Exchange Commission, both of which are currently conducting related criminal investigations. In a June Congressional hearing, brokers were probed about the ethics of laddering and the alleged conflict of interest arising from broker commissions on securities sales. This new breed of class action has spurred the Securities Industry Association to release new industry ethical guidelines, calling for the use of more caution when marketing IPOs to clients. Several named defendants have made internal changes including underwriter Credit Suisse which recently removed its technology sector investing directors and named a new chief executive officer.