Supreme Court keeps investor suits narrow

In a 5-to-3 ruling, justices say firms that merely abetted fraud can't be sued.

from the January 16, 2008 edition

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Company officials devised a plan to artificially boost Charter's bottom line. They set up a system in which they overpaid two of their suppliers for television cable boxes. They paid $20 per box above the usual price – generating $17 million in overpayments. The suppliers – Scientific-Atlanta and Motorola – then agreed to pay $17 million to Charter to purchase advertising from Charter.

In effect, Charter was giving the suppliers free advertising but booking the recycled $17 million as new revenue.

To help throw Charter's auditors off the trail, Scientific-Atlanta and Motorola backdated phony contracts and were asked to send letters to Charter justifying the $20 extra charge per box, according to a federal indictment. One of the suppliers sent false invoices, the indictment says.

The moves inflated Charter's bottom line and prevented a stock plunge, but only temporarily. When Charter's true financial situation was revealed (amid other questionable activities), the company's stock fell from $26 per share in 2000 to 76 cents per share by 2002.

A shareholder suit against Charter's top executives was settled out of court. The shareholders then sued Scientific-Atlanta and Motorola for their alleged role in the fraud.

But that suit – the subject of Tuesday's Supreme Court decision – was dismissed by a federal judge and the Eighth US Circuit Court of Appeals in St. Louis.

Both lower courts ruled that such civil lawsuits by shareholders could be pursued against the primary perpetrators of the fraud at Charter, but that Motorola and Scientific-Atlanta were not involved deeply enough in the fraud.

The courts cited a 1994 Supreme Court case, Central Bank v. First Interstate Bank, that ruled that those who merely aid and abet a fraud can not be sued by shareholders. Instead, investors may only request enforcement action by state or federal prosecutors or by the Securities and Exchange Commission.

"Secondary actors are subject to criminal penalties and civil enforcement by the SEC," Kennedy writes. "The enforcement power is not toothless."

Kennedy justified the narrow reading of the securities law by saying that when Congress last amended the law, it declined to include specific authorization for investor suits against vendors and other secondary actors.

"The determination of who can seek a remedy has significant consequences for the reach of federal power," Kennedy writes. "The decision to extend the cause of action is for Congress, not for us."

Stevens counters in his dissent that "the court is simply wrong when it states that Congress did not impliedly authorize this private cause of action when it first enacted the statute."

He adds, "Congress enacted [the securities regulations] with the understanding that federal courts respected the principle that every wrong would have a remedy."

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