GOVERNANCE - Class Inaction

治理问题和投资者活动可能是当天的观点，但在违反直觉的发展中，股东对公共公司带来的诉讼似乎正在下降。根据斯坦福法学院和基石研究的联合研究，2007年上半年提交了59件套装，自2005年7月以来每六个月期间平均为61人。这些水平代表着急剧减少1996年7月至2005年6月，每六个月每六个月加入每六个月的101级诉讼投诉的平均率。

Why the downturn? Perhaps the biggest reason is the wave of regulation and enforcement that followed the fraud-fueled collapses of Enron Corp., WorldCom and a host of other big companies. In 2002, Congress passed the Sarbanes-Oxley Act, requiring executives to certify the accuracy of financial statements, among other measures. The Securities and Exchange Commission and U.S. stock exchanges also passed rules forcing companies to hire more independent directors and otherwise improve their governance. And federal prosecutors have charged a host of corporate executives and directors with securities-law violations in connection with the accounting scandals of the early 2000s. All that intervention seems to be having both a deterrent and a remedial effect, legal experts say.

"There are probably fewer financial and accounting irregularities," says John Coffee, Adolf A. Berle Professor of Law at Columbia Law School. "Managements have been deterred, and accountants are more rigorous."

Several recent court decisions may have contributed to the decline in class-action lawsuits as well. A 2005 U.S. Supreme Court ruling, in the case of Dura Pharmaceuticals v. Broudo, set a new standard for securities fraud claimants, requiring proof that a company's "misrepresentation (or other fraudulent conduct) proximately caused the plaintiff's economic loss." Previously, lower courts had held that shareholders needed to prove only that a stock's price was inflated at the time of purchase because of the company's misrepresentation. The high court's 2006 decision in Merrill Lynch, Pierce, Fenner & Smith v. Dabit has also been influential, securities lawyers say. In the ruling the court said that shareholders who simply chose to hold a security -- but did not buy or sell it as a result of a fraudulent statement -- could not bring class-action lawsuits in state court to get around the law prohibiting the filing of suits on these grounds in federal courts.

Of course, the stock market's bull run from 2003 until earlier this year could also be a big reason why litigation ebbed. Rising markets generate fewer losses that investors might try to recover in court. They can also help companies obscure questionable accounting practices or developing problems that become crises later.

“强大的市场和商业周期可以允许公司隐藏事物，”律师事务所赠款伙伴和艾森霍夫的合伙人斯图尔特·格兰特说。

Consequently, more than a few securities-litigation experts expect that the major stock indexes' recent dives presage a spike in class- action lawsuits.

"Fraud always finds a way to bounce back," says Robert Schwinger, a partner with Chadbourne & Parke, whose practice includes class-action, shareholder and other corporate-governance-related litigation. "When conditions change and there is a collapse in the market, we will see a rush of filings. Only when things start to crumble do people run around looking for other people to blame and sue."

Still, some believe that even if the pace of litigation tracks the business cycle, Sarbanes-Oxley and other postbubble reforms will have a lasting effect, so that there won't be a proliferation of new legal actions.

"Even if volatility is up and the market is down, we won't see a huge increase that will bring us back to where it was," insists Stanford Law School professor Joseph Grundfest, director of the Securities Class Action Clearinghouse, co-director of the Rock Center on Corporate Governance and a former SEC commissioner. "Executives today know that if they commit fraud, the probability of being caught is higher and the penalties will be larger, so the incentive is to commit less fraud."