Short Sales, Damages and Class Certification in 10b-5 Actions

Robert C. Apfel
Bondholder Communications Group, New York, NY 10004

John E. Parsons
Charles River Associates, Boston, MA 02116

G. William Schwert
University of Rochester, Rochester, NY 14627
and National Bureau of Economic Research

Geoffrey S. Stewart
Jones Day Reavis & Pogue, Washington, DC 20004

First Draft: July 2001
In a short sale, an investor sells a share of stock he does not own and profits when the price of the stock declines. A peculiar feature of short sales is the apparent increase in the number of shares of stock beneficially held by investors over and above the actual number of shares issued by the corporation. It has previously been noted that this may create problems in the execution of proxy votes. In this paper we illustrate a related problem in the prosecution of claims of securities fraud. We examine this problem using the recent case of Computer Learning Centers, Inc., (CLC) in which the number of short sales was extremely large.

Plaintiffs in the Computer Learning Centers case proposed a class including all those who purchased CLC common stock from April 30, 1997 to April 6, 1998. Defendants opposed certification of the class, focusing on the large number of short sales and the resulting difficulty in establishing which members of the class actually had standing to sue. The court denied the motion for class certification. Although the court gave plaintiffs leave to amend the class, the case was settled before a new class was identified.

Short-selling, Litigation, Securities fraud

JEL Classifications: G14, G18, K22

Cited 6 times in the SSCI through 2008

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