Risk-Shifting Through Issuer Liability and Corporate Monitoring

36 Pages Posted: 5 Oct 2013 Last revised: 16 Oct 2013

See all articles by Martin Gelter

Martin Gelter

Fordham University School of Law; European Corporate Governance Institute (ECGI)

Date Written: October 2013


This article explores how issuer liability reallocates fraud risk and how risk allocation may reduce the incidence of fraud. In the US, the apparent absence of individual liability of officeholders and insufficient monitoring by insurers undermines the potential deterrent effect of securities litigation. The underlying reasons why both mechanisms remain ineffective are collective action problems under the prevailing dispersed ownership structure, which eliminates the incentives to monitor set by issuer liability. This article suggests that issuer liability could potentially have a stronger deterrent effect when it shifts risk to individuals or entities holding a larger financial stake. Thus, it would enlist large shareholders in monitoring in much of Europe. The same risk-shifting effect also has implications for the debate about the relationship between securities litigation and creditor interests. Creditors’ claims should not be given precedence over claims of defrauded investors (e.g. because of the capital maintenance principle), since bearing some of the fraud risk will more strongly incentivize large creditors, such as banks to monitor the firm in jurisdictions where corporate debt is relatively concentrated.

Keywords: issuer liability, securities law, securities class action, dispersed ownership, concentrated ownership, capital maintenance, fraud risk, compensation, deterrence, prospectus liability

JEL Classification: G30, G32, K13, K22

Suggested Citation

Gelter, Martin, Risk-Shifting Through Issuer Liability and Corporate Monitoring (October 2013). European Business Organization Law Review, 2014, Forthcoming; ECGI - Law Working Paper No. 228; Fordham Law Legal Studies Research Paper No. 2335721. Available at SSRN: https://ssrn.com/abstract=2335721

Martin Gelter (Contact Author)

Fordham University School of Law ( email )

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646-312-8752 (Phone)

HOME PAGE: http://www.fordham.edu/info/23135/martin_gelter

European Corporate Governance Institute (ECGI)

HOME PAGE: http://ecgi.global/users/martin-gelter

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