Sec Enforcement Actions for Financial Fraud and Private Litigation: An Empirical Inquiry

Duke Law Journal, Vol. 53, p. 737, 2003

Reprinted: Corporate Practice Commentator, Vol. 46, p. 65, 2004

Vanderbilt Law and Economics Research Paper No. 03-08

24 Pages Posted: 5 Aug 2003

See all articles by James D. Cox

James D. Cox

Duke University School of Law

Randall S. Thomas

Vanderbilt University - Law School; European Corporate Governance Institute (ECGI)

Date Written: May 23, 2003

Abstract

This paper examines the overlap between SEC securities enforcement actions and private securities fraud class actions. We begin with an overview of data concerning all SEC enforcement actions from 1997 to 2002. We find that the volume of SEC enforcement proceedings is relatively modest. We next examine the scope of the recently enacted "Fair Fund" provision that authorizes the SEC to designate civil penalties it recovers from defendants to benefit defrauded private investors. We conclude that this provision offers only limited potential relief for private investors. We complete this part of the paper with an analysis of the serious resource limitations faced by the SEC.

The second portion of the paper contains an empirical analysis of the determinants of SEC enforcement actions and the overlap of private fraud suits and SEC enforcement proceedings. In bi-variate analysis, we find that: private suits with parallel SEC actions settle for significantly more than private suits without such proceedings; SEC enforcement actions target significantly smaller companies than private actions alone; private cases with parallel SEC actions take substantially less time to settle than other private cases; and private cases with parallel SEC actions have significantly longer class periods than other private actions. Finally, we create a model for estimating damages to compare settlement ratios in cases with parallel SEC actions to those in private actions. We find that one-fourth of all the private class action settlements occurring in suits that yield less than 10% of provable losses are settled for less than .02 percent of provable losses, but that there are no private actions with parallel SEC suits with such small settlements.

In the final part of the paper, we conduct a multivariate regression analysis of the determinants of when SEC enforcement actions are filed. We find that the most highly significant determinant of SEC actions is financial distress. Estimated losses do not appear to be a statistically significant factor in the SEC's decision to file these suits.

JEL Classification: K2, K22, G30, G34, G38

Suggested Citation

Cox, James D. and Thomas, Randall S., Sec Enforcement Actions for Financial Fraud and Private Litigation: An Empirical Inquiry (May 23, 2003). Duke Law Journal, Vol. 53, p. 737, 2003; Reprinted: Corporate Practice Commentator, Vol. 46, p. 65, 2004; Vanderbilt Law and Economics Research Paper No. 03-08. Available at SSRN: https://ssrn.com/abstract=429140 or http://dx.doi.org/10.2139/ssrn.429140

James D. Cox

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7056 (Phone)
919-613-7231 (Fax)

Randall S. Thomas (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

European Corporate Governance Institute (ECGI)

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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