Short Sellers, Short Squeezes, and Securities Fraud

Abstract

The modern securities fraud class action lawsuit rests on a legal fiction. Plaintiffs are able to bring claims together and avoid proving individual reliance because over thirty years ago, the Supreme Court assumed that almost all investors purchase and sell securities based on their belief that the market price is accurate. In today's world of short sellers, options traders, algorithmic traders, and institutional investors with more valuation tools than the issuers themselves, that assumption cannot hold. These atypical traders, particularly short sellers, are becoming more and more visible in class actions as lead plaintiffs and lead plaintiff candidates, and sometimes as defendants. Courts have not decided exactly what to do with short sellers in securities fraud cases, and this Article is one of the first to create a theoretical and normative framework for atypical investors in the securities fraud paradigm. Building on a dataset of all 10b-5 cases filed in federal court in 2017, this Article explores the questions of when and whether short sellers and other atypical traders should benefit from the securities fraud class action structure.

Keywords: securities fraud, class action, short sellers, options traders, atypical traders, lead plaintiffs, algorithmic traders, institutional investors