Misleading Employer Communications and the Securities Fraud Implications of the Employee as Investor

Abstract:     
This Article addresses the securities fraud implications of the employee as investor. It first demonstrates that employee investors are particularly vulnerable to securities fraud committed by company management. Company management can capitalize on the employment relationship and communicate directly with their employees, through such media as employee newsletters, employee meetings, and employer e-mails. These communications are often promotional in nature. They may also be misleading. Unfortunately, employees are more likely to believe misleading employer communications because of the natural tendency of employees to trust the senior management of their employer. The Article then demonstrates that the anti-fraud provisions of the federal securities laws do not adequately address the vulnerability of employee investors. In particular, I point out that because employer communications are not publicly made, securities fraud actions are unlikely to be brought, either by the SEC or by private plaintiffs. To fill this regulatory gap, I propose that certain types of employer communications should be disclosed to the Securities and Exchange Commission. Requiring disclosure of employer communications would have a disciplining effect on senior management without chilling the disclosure of information by employers to their employees.

Keywords: Enron, Corporate Governance, Securities Law, Securities Regulation, Corporate Law, Sarbanes-Oxley

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