Corporate Governance

Justice Stevens and the Loss to Investors/Shareholders

By J Robert Brown Jr.

Justice Stevens just announced that he was stepping down.  A great deal of focus will be on his views in the area of individual rights.  But it is quite clear that investors and shareholders just lost a significant ally. 

In particular, he has been the strongest voice on the Court objecting to the conservative majority's activist approach towards restricting the reach of securities fraud actions.  It became absolutely clear in Stoneridge that this majority, while unwilling to undo the private right of action under Rule 10b-5, intended as a matter of policy to restrict the reach of this provision.  It was a policy that had long been in place and one that Justice Stevens had consistently resisted.

Examples?  

He has disagreed with the conservative majority and their efforts to cut back on Rule 10b-5, most recently in Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148 (2008)  In that case, where this majority announced its affirmative opposition to cut back an actions brought under Rule 10b-5, Justice Stevens wrote a vigerous dissent.  

He wrote the majority decision in SEC v. Zandford, 535 US 813 (2002) that put a stop to efforts by the Fourth Circuit to use the "in connection with" requirement to substantially limit securities fraud actions by injured investors.

He dissented in Cent. Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164  (1994), a much criticized and result oriented opinion that eliminated aiding and abetting liability under Rule 10b-5, despite the fact that every circuit in the country addressing the issue had found otherwise.   

He dissented in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), a case that effectively shortened the statute of limitations under Rule 10b-5.  It took Congress and SOX to overturn portions of this decision. 

It is with great hope that the Obama Administration will take the positions and views of Justice Steven's in this area into account when a replacement is announced. 

Full post as published by The Race to the Bottom on April 09, 2010 (boomark / email).