Tag Archives: stock market

Q4 Economic and Investment Outlook

Although it may not seem like it, in the second quarter of this year the U.S. economy passed into the beginning of its seventh year of expansion. In the 158 years that the National Bureau of Economic Research (the arbiters of “official” U.S. economic cycles) has been keeping records, ours is now the fifth-longest economic cycle, at 75 months. For fun, when did the longest cycles occur, and what circumstances characterized them? Is there anything we can learn from historical perspective about what may lie ahead for the current cycle?

The first cycle longer than the current, by only five months, is the 1938-1945 U.S. economic expansion cycle. Of course, this was the immediate post-Depression recovery cycle. What preceded this cycle, from 1933-1937, was the bulk of FDR’s New Deal spending program, a program that certainly rebuilt confidence and paved the way for a U.S. manufacturing boom as war on European and Japanese lands destroyed their respective manufacturing capabilities for a time. More than anything, the war-related destruction of the industrial base of Japan and Europe was the growth accelerant of the post-Depression U.S. economy.

In historically sequential order, the U.S. economy grew for 106 months between 1961 and 1970. What two occurrences surrounded this economic expansion that were unique in the clarity of hindsight? A quick diversion. In 1946, the first bank credit card was issued by the Bank of Brooklyn, called the “Charge-It” card. Much like American Express today, the balance needed to be paid in full monthly. We saw the same thing when the Diners Club Card became popular in the 1950s. But in 1958, both American Express and Bank of America issued credit cards to their customers broadly. We witnessed the beginning of the modern day credit culture in the U.S. economic and financial system. A support to the follow-on 1961-1970 economic expansion? Without question.

Once again in the 1960s, the influence of a major war on the U.S. economy was also apparent. Lyndon Johnson’s “guns and butter” program increased federal spending meaningfully, elongating the U.S. expansion of the time.

The remaining two extended historical U.S. economic cycles of magnitude (1982-1990, at 92 months, and 1991-2001, at 120 months) both occurred under the longest bull market cycle for bonds in our lifetime. Of course, a bull market for bonds means interest rates are declining. In November 1982, the 10-year Treasury sported a yield of 10.5%. By November 2001, that number was 4.3%. Declining interest rates from the early 1980s to the present constitute one of the greatest bond bull markets in U.S. history. The “credit cycle” spawned by two decades of continually lower interest rates very much underpinned these elongated growth cycles. The question being, at the generational lows in interest rates that we now see, will this bull run be repeated?

So fast-forward to today. What has been present in the current cycle that is anomalistic? Pretty simple. Never in any U.S. economic cycle has federal debt doubled, but it has in the current cycle. Never before has the Federal Reserve “printed” more than $3.5 trillion and injected it into U.S. financial markets, until the last seven years. Collectively, the U.S. economy and financial markets were treated to more than $11 trillion of additional stimulus, a number that totals more than 70% of current annual U.S. GDP. No wonder the current economic cycle is pushing historical extremes in terms of longevity. But what lies ahead?

As we know, the U.S. Fed has stopped printing money. Maybe not so coincidentally, in recent months macroeconomic indicators have softened noticeably. This is happening across the globe, not just in the U.S. As we look forward, what we believe most important to U.S. economic outcomes is what happens outside of the U.S. proper.

Specifically, China is a key watch point. It is the second-largest economy in the world and is undergoing not only economic slowing, but the very beginning of the free floating of its currency, as we discussed last month. This is causing the relative value of its currency to decline against global currencies. This means China can “buy less” of what the global economy has to sell. For the emerging market countries, China is their largest trading partner. If China slows, they slow. The largest export market for Europe is not the U.S., it’s China. As China slows, the Euro economy will feel it. For the U.S., China is also important in being an end market for many companies, crossing industries from Caterpillar to Apple.

In the 2003-2007 cycle, it was the U.S. economy that transmitted weakness to the greater global economy. In the current cycle, it’s exactly the opposite. It is weakness from outside the U.S. that is our greatest economic watch point as we move on to the end of the year. You may remember in past editions we have mentioned the Atlanta FED GDP Now model as being quite the good indicator of macroeconomic U.S. tone. For the third quarter, the model recently dropped from 1.7% estimated growth to 0.9%. Why? Weakness in net exports. Is weakness in the non-U.S. global economy the real reason the Fed did not raise interest rates in September?

Interest Rates

As you are fully aware, the Fed again declined to raise interest rates at its meeting last month, making it now 60 Fed meetings in a row since 2009 that the Fed has passed on raising rates. Over the 2009-to-present cycle, the financial markets have responded very positively in post-Fed meeting environments where the Fed has either voted to print money (aka “Quantitative Easing”) or voted to keep short-term interest rates near zero. Not this time. Markets swooned with the again seemingly positive news of no rate increases. Very much something completely different in terms of market behavior in the current cycle. Why?

We need to think about the possibility that investors are now seeing the Fed, and really global central bankers, as to a large degree trapped. Trapped in the web of intended and unintended consequences of their actions. As we have argued for the past year, the Fed’s greatest single risk is being caught at the zero bound (0% interest rates) when the next U.S./global recession hits. With declining global growth evident as of late, this is a heightened concern, and that specific risk is growing. Is this what the markets are worried about?

It’s a very good bet that the Fed is worried about and reacting to the recent economic slowing in China along with Chinese currency weakness relative to the U.S. dollar. Not only are many large U.S. multi-national companies meaningful exporters to China, but a rising dollar relative to the Chinese renminbi is about the last thing these global behemoths want to see. As the dollar rises, all else being equal, it makes U.S. goods “more expensive” in the global marketplace. A poster child for this problem is Caterpillar. Just a few weeks ago, it reported its 33rd straight month of declining world sales. After releasing that report, it announced that 10,000 would be laid off in the next few years.

As we have explained in past writings, if the Fed raises interest rates, it would be the only central bank on Earth to do so. Academically, rising interest rates support a higher currency relative to those countries not raising rates. So the question becomes, if the Fed raises rates will it actually further hurt U.S. economic growth prospects globally by sparking a higher dollar? The folks at Caterpillar may already have the answer.

Finally, we should all be aware that debt burdens globally remain very high. Governments globally have borrowed, and continue to borrow, profusely in the current cycle. U.S. federal debt has more than doubled since 2009, and, again, we will hit yet a U.S. government debt ceiling in December. Do you really think the politicians will actually cap runaway debt growth? We’ll answer as soon as we stop laughing. As interest rates ultimately trend up, so will the continuing interest costs of debt-burdened governments globally. The Fed is more than fully aware of this fact.

In conjunction with all of this wonderful news, as we have addressed in prior writings, another pressing issue is the level of dollar-denominated debt that exists outside of the U.S.. As the Fed lowered rates to near zero in 2008, many emerging market countries took advantage of low borrowing costs by borrowing in U.S. dollars. As the dollar now climbs against the respective currencies of these non-dollar entities, their debt burdens grow in absolute terms in tandem with the rise in the dollar. Message being? As the Fed raises rates, it increases the debt burden of all non-U.S. entities that have borrowed in dollars. It is estimated that an additional $7 trillion in new dollar-denominated debt has been borrowed by non-U.S. entities in the last seven years. Fed decisions now affect global borrowers, not just those in the U.S.. So did the Fed pass on raising rates in September out of concern for the U.S. economy, or issues specific to global borrowers and the slowing international economies? For investors, has the Fed introduced a heightened level of uncertainty in their decision-making?

Prior to the recent September Fed meeting, Fed members had been leading investors to believe the process of increasing interest rates in the U.S. was to begin. So in one very real sense, the decision to pass left the investment world confused. Investors covet certainty. Hence a bit of financial market turbulence in the aftermath of the decision. Is the Fed worried about the U.S. economy? The global economy? The impact of a rate decision on relative currency values? Is the Fed worried about the emerging economies and their very high level of dollar-denominated debt? Because Fed members never clearly answer any of these questions, they have now left investors confused and concerned.

What this tells us is that, from a behavioral standpoint, the days of expecting a positive Pavlovian financial market response to the supposedly good news of a U.S. Fed refusing to raise interest rates are over. Keeping rates near zero is no longer good enough to support a positive market sentiment. In contrast, a Fed further refusing to raise interest rates is a concern. Let’s face it, there is no easy way out for global central bankers in the aftermath of their unprecedented money printing and interest rate suppression experiment. This, we believe, is exactly what the markets are now trying to discount.

The U.S. Stock Market

We are all fully aware that increased price volatility has characterized the U.S. stock market for the last few months. It should be no surprise as the U.S. equity market had gone close to 4 years without having experienced even a 10% correction, the third-longest period in market history. In one sense, it’s simply time, but we believe the key question for equity investors right now is whether the recent noticeable slowing in global economic trajectory ultimately results in recession. Why is this important? According to the playbook of historical experience, stock market corrections that occur in non-recessionary environments tend to be shorter and less violent than corrections that take place within the context of actual economic recession. Corrections in non-recessionary environments have been on average contained to the 10-20% range. Corrective stock price periods associated with recession have been worse, many associated with 30-40% price declines known as bear markets.

We can see exactly this in the following graph. We are looking at the Dow Jones Global Index. This is a composite of the top 350 companies on planet Earth. If the fortunes of these companies do not represent and reflect the rhythm of the global economy, we do not know what does. The blue bars marked in the chart are the periods covering the last two U.S. recessions, which were accompanied by downturns in major developed economies globally. As we’ve stated many a time, economies globally are more linked than ever before. We live in an interdependent global world. Let’s have a closer look.

If we turn the clock back to late 1997, an emerging markets currency crisis caused a 10%-plus correction in global stock prices but no recession. The markets continued higher after that correction. In late 1998, the blowup at Long Term Capital Management (a hedge fund management firm implosion that caused a $3.6 billion bailout among 16 financial institutions under the supervision of the Fed) really shook the global markets, causing a 20% price correction, but no recession, as the markets continued higher into the early 2000 peak. From the peak of stock prices in early 2000 to the first quarter of 2001, prices corrected just more than 20% but then declined yet another 20% that year as the U.S. did indeed enter recession. The ultimate peak to trough price decline into the 2003 bottom registered 50%, quite the bear market. Again, this correction was accompanied by recession.

graph

The experience from 2003 to early 2008 is similar. We saw 10% corrections in 2004 and 2006, neither of which were accompanied by recession. The markets continued higher after these two corrective interludes. Late 2007 into the first quarter of 2008 witnessed just shy of a 20% correction, but being accompanied by recession meant the peak-to-trough price decline of 2007-2009 totaled considerably more than 50%.

We again see similar activity in the current environment. In 2010, we saw a 10% correction and no recession. In 2011, we experienced a 20% correction. Scary, but no recession meant higher stock prices were to come.

So we now find ourselves at yet another of these corrective junctures, and the key question remains unanswered. Will this corrective period for stock prices be accompanied by recession? We believe this question needs to be answered from the standpoint of the global economy, not the U.S. economy singularly. For now, the jury is out, but we know evidence of economic slowing outside of the U.S. is gathering force.

As you may be aware, another U.S. quarterly earnings reporting season is upon us. Although the earnings results themselves will be important, what will be most meaningful is guidance regarding 2016, as markets look ahead, not backward. We’ll especially be interested in what the major multinationals have to say about their respective outlooks, as this will be a key factor in assessing where markets may be moving from here.

The Defining Issue for Financial Markets

For anyone who has spent time on the open sea, especially in a small craft, you know the sea can be quite the moody mistress. Some days, the gale winds are howling. Some days the sea is as smooth as glass. The financial markets are quite similar.

In late August, the U.S. equity market experienced its first 10% price correction in four years. That ended the third longest period in the history of the market without a 10% correction, so in one sense it was long overdue. But, because the U.S. stock market has been as smooth as glass for years now, it feels as if typhoon winds are blowing.

Cycles define the markets’ very existence. Unfortunately, cycles also define human decision making within the context of financial markets.

Let’s focus on one theme we believe will be enduring and come to characterize financial market outcomes over the next six to 12 months. That theme is currency.

In past missives, we have discussed the importance of global currency movements to real world economic and financial market outcomes. The issue of currency lies at the heart of the recent uptick in financial market “swell” activity. Specifically, the recent correction in U.S. equities began as China supposedly “devalued” its currency, the renminbi, relative to the U.S. dollar.

Before we can look at why relative global currency movements are so important, we need to take a step back. It’s simply a fact that individual country economies display different character. They do not grow, or contract, at the same rates. Some have advantages of low-cost labor. Some have the advantage of cheap access to raw materials. Etc. No two are exactly alike.

Historically, when individual countries felt the need to stimulate (not enough growth) or cool down (too much inflation) their economies, they could raise or lower country-specific interest rates. In essence, they could change the cost of money. Interest rates have been the traditional pressure relief valves between various global economies. Hence, decades-long investor obsession with words and actions of central banks such as the U.S. Fed.

Yet we have maintained for some time now that we exist in an economic and financial market cycle unlike any we have seen before. Why? Because there has never been a period in the lifetime of any investor alive today where interest rates in major, developed economies have been set near academic zero for more than half a decade at least. (In Japan, this has been true for multiple decades.) The near-zero rates means that the historical relief valve has broken. It has been replaced by the only relief valve left to individual countries — relative currency movements.

This brings us back to the apparent cause of the present financial market squall — the supposed Chinese currency devaluation that began several weeks ago. Let’s look at the facts and what is to come.

For some time now, China has wanted its renminbi to be recognized as a currency of global importance — a reserve currency much like the dollar, euro and yen. For that to happen in the eyes of the International Monetary Fund (IMF), China would need to de-link its currency from the U.S. dollar and allow it to float freely (level to be determined by the market, not by a government or central bank). The IMF was to make a decision on renminbi inclusion in the recognized basket of important global currencies in September. In mid-August, the IMF announced this decision would be put off for one more year as China had more “work to do with its currency.” Implied message? China would need to allow its currency to float freely. One week later, China took the step that media reports continue to sensationalize, characterizing China’s action as intentionally devaluing its currency.

In linking the renminbi to the dollar for many years now, China has “controlled” its value via outright manipulation, in a very tight band against the dollar. The devaluation Wall Street has recently focused on is nothing more than China allowing the band in which the renminbi trades against the dollar to widen. With any asset whose value has been fixed, or manipulated, for so long, once the fix is broken, price volatility is a virtual guarantee. This is exactly what has occurred.

China loosened the band by about 4% over the last month, which we believe is the very beginning of China allowing its currency to float freely. This will occur in steps. This is the beginning, not the end, of this process. There is more to come, and we believe this will be a very important investment theme over the next six to 12 months.

What most of the media has failed to mention is that, before the loosening, the renminbi was up 10% against most global currencies this year. Now, it’s still up more than 5%, while over the last 12 months the euro has fallen 30% against the U.S. dollar. Not 4%, 30%, and remarkably enough the lights still go on in Europe. Over the last 2 1/2 years, the yen has fallen 35% against the U.S. dollar. Although it may seem hard to believe, the sun still comes up every morning in Japan. What we are looking at in China is economic and financial market evolution. Evolution that will bring change and, we assure you, not the end of the world.

Financial market squalls very often occur when the markets are attempting to “price in” meaningful change, which is where we find ourselves right now.

What heightens current period investor angst is the weight and magnitude of the Chinese economy, second largest on planet Earth behind the U.S. With a devalued currency, China can theoretically buy less of foreign goods. All else being equal, a cheaper currency means less global buying power. This is important in that, at least over the last few decades, China has been the largest purchaser and user of global commodities and industrial materials. Many a commodity price has collapsed over the last year. Although few may realize this, Europe’s largest trading partner is not the U.S., it’s China. European investors are none too happy about recent relative currency movements.

Relative global currency movements are not without consequence, but they do not spell death and destruction.

A final component in the current market volatility is uncertainty about whether the U.S. Fed will raise interest rates for the first time in more than half a decade. Seriously, would a .25% short-term interest rate vaporize the U.S. economy? Of course not, but if the Fed is the only central bank on Earth possibly raising rates again that creates a unique currency situation. Academically, when a country raises its interest rates in isolation, it makes its currency stronger and more attractive globally. A stronger dollar and weaker Chinese renminbi academically means China can buy less U.S.-made goods. Just ask Caterpillar and John Deere how that has been working out for them lately. Similarly, with a recent drop in Apple’s stock price, are investors jumping to the conclusion that Apple’s sales in China will fall off of the proverbial cliff? No more new iPhone sales in China? Really?

The issue of relative global currency movements is real and meaningful. The change has been occurring for some time now, especially with respect to the euro and the yen. Now it’s the Chinese currency that is the provocateur of global investor angst. Make no mistake about it, China is at the beginning of its loosening of the currency band, not the end. This means relative currency movements will continue to be very important to investment outcomes.

We expect a stronger dollar. That’s virtually intuitive. But a stronger dollar is a double-edged sword — not a major positive for the near-term global economic competitiveness of the U.S., but a huge positive for attracting global capital (drawn to strong currencies). We have seen exactly this in real estate and, to a point, in “blue chip” U.S. equities priced in dollars, for years now.

In addition to a higher dollar, we fully expect a lower Chinese renminbi against the dollar. If we had to guess, at least another 10% drop in the renminbi over next 12 months. Again, the price volatility we are seeing right now is the markets attempting to price in this currency development, much as it priced in the falling euro and yen during years gone by. Therefore, sector and asset class selectivity becomes paramount, as does continuing macro risk control.

Much like a sailor away far too long at sea, the shoreline beckons. We simply need to remember that there is a “price” for being free, and for now that “price” is increased volatility. Without question, relative global currency movements will continue to exert meaningful influence over investment outcomes.

These are the global financial market seas in which we find ourselves.

Future of Securities Class Actions

Securities litigation has a culture defined by multiple elements: the types of cases filed, the plaintiffs’ lawyers who file them, the defense counsel who defend them, the characteristics of the insurance that covers them, the way insurance representatives approach coverage, the government’s investigative policies – and, of course, the attitude of public companies and their directors and officers toward disclosure and governance.

This culture has been largely stable over the nearly 20 years I’ve defended securities litigation matters full time. The array of private securities litigation matters (in the way I define securities litigation) remains the same – in order of virulence: securities class actions, shareholder derivative litigation matters (derivative actions, board demands and books-and-records inspections) and shareholder challenges to mergers. The world of disclosure-related SEC enforcement and internal corporate investigations is basically unchanged, as well. And the art of managing a disclosure crisis, involving the convergence of shareholder litigation, SEC enforcement and an internal investigation involves the same basic skills and instincts.

But I’ve noted significant changes to other characteristics of securities-litigation culture recently, which portend a paradigm shift. Over the past few years, smaller plaintiffs’ firms have initiated more securities class actions on behalf of individual, retail investors, largely against smaller companies that have suffered what I call “lawsuit blueprint” problems such as auditor resignations and short-seller reports. This trend – which has now become ingrained into the securities-litigation culture – will significantly influence the way securities cases are defended and by whom, and change the way that D&O insurance coverage and claims need to be handled.

Changes in the Plaintiffs’ Bar

Discussion of the history of securities plaintiffs’ counsel usually focuses on the impact of the departures of former giants Bill Lerach and Mel Weiss. But although the two of them did indeed cut a wide swath, the plaintiffs’ bar survived their departures just fine. Lerach’s former firm is thriving, and there are strong leaders there and at other prominent plaintiffs’ firms.

The more fundamental shifts in the plaintiffs’ bar concern changes to filing trends. Securities class action filings are down significantly over the past several years, but, as I have written, I’m confident they will remain the mainstay of securities litigation and won’t be replaced by merger cases or derivative actions. There is a large group of plaintiffs’ lawyers who specialize in securities class actions, and there are plenty of stock drops that give them good opportunities to file cases. Securities class action filings tend to come in waves, both in the number of cases and type. Filings have been down over the last several years for multiple reasons, including the lack of plaintiff-firm resources to file new cases as they continue to litigate stubborn and labor-intensive credit-crisis cases, the rising stock market and the lack of significant financial restatements.

Although I don’t think the downturn in filings is, in and of itself, very meaningful, it has created the opportunity for smaller plaintiffs’ firms to file more securities class actions. The Reform Act’s lead plaintiff process gives plaintiffs’ firms incentives to recruit institutional investors to serve as plaintiffs. For the most part, institutional investors, whether smaller unions or large funds, have retained the more prominent plaintiffs’ firms, and smaller plaintiffs’ firms have been left with individual investor clients who usually can’t beat out institutions for the lead-plaintiff role. At the same time, securities class action economics tightened in all but the largest cases. Dismissal rates under the Reform Act are pretty high, and defeating a motion to dismiss often requires significant investigative costs and intensive legal work. And the median settlement amount of cases that survive dismissal motions is fairly low. These dynamics placed a premium on experience, efficiency and scale. Larger firms filed most of the cases, and smaller plaintiffs’ firms were unable to compete effectively for the lead plaintiff role or make much money on their litigation investments.

This started to change with the wave of cases against Chinese issuers in 2010. Smaller plaintiffs’ firms initiated most of them, as the larger firms were swamped with credit-crisis cases and likely were deterred by the relatively small damages, potentially high discovery costs and uncertain insurance and company financial resources. Moreover, these cases fit smaller firms’ capabilities well; nearly all of the cases had “lawsuit blueprints” such as auditor resignations or short-seller reports, thereby reducing the smaller firms’ investigative costs and increasing their likelihood of surviving a motion to dismiss. The dismissal rate has indeed been low, and limited insurance and company resources have prompted early settlements in amounts that, while on the low side, appear to have yielded good outcomes for the smaller plaintiffs’ firms.

The smaller plaintiffs’ firms thus built up a head of steam that has kept them going, even after the wave of China cases subsided. For the last year or two, following almost every “lawsuit blueprint” announcement, a smaller firm has launched an “investigation” of the company, and smaller firms have initiated an increasing number of cases. Like the China cases, these tend to be against smaller companies. Thus, smaller plaintiffs’ firms have discovered a class of cases – cases against smaller companies that have suffered well-publicized problems that reduce the plaintiffs’ firms’ investigative costs – for which they can win the lead plaintiff role and that they can prosecute at a sufficient profit margin.

To be sure, the larger firms still mostly can and will beat out the smaller firms for the cases they want. But it increasingly seems clear that the larger firms don’t want to take the lead in initiating many of the cases against smaller companies and are content to focus on larger cases on behalf of their institutional investor clients.

These dynamics are confirmed by recent securities litigation filing statistics. Cornerstone Research’s “Securities Class Action Filings: 2014 Year in Review” concludes that (1) aggregate market capitalization loss of sued companies was at its lowest level since 1997 and (2) the percentage of S&P 500 companies sued in securities class actions “was the lowest on record.” Cornerstone’s “Securities Class Action Filings: 2015 Midyear Assessment” reports that two key measures of the size of cases filed in the first half of 2015 were 43% and 65% lower than the 1997-2014 semiannual historical averages. NERA Economic Consulting’s “Recent Trends in Securities Class Action Litigation: 2014 Full-Year Review” reports that 2013 and 2014 “aggregate investor losses” were far lower than in any of the prior eight years. And PricewaterhouseCoopers’ “Coming into Focus: 2014 Securities Litigation Study” reflects that, in 2013 and 2014, two-thirds of securities class actions were against small-cap companies (market capitalization less than $2 billion) and that one-quarter were against micro-cap companies (market capitalization less than $300 million). These numbers confirm the trend toward filing smaller cases against smaller companies, so that now, most securities class actions are relatively small cases.

Consequences for Securities Litigation Defense

Securities litigation defense must adjust to this change. Smaller securities class actions are still important and labor-intensive matters – a “small” securities class action is still a big deal for a small company and the individuals accused of fraud, and the number of hours of legal work to defend a small case is still significant. This is especially so for the “lawsuit blueprint” cases, which typically involve a difficult set of facts.

Yet most securities defense practices are in firms with high billing rates and high associate-to-partner ratios, which make it uneconomical for them to defend smaller litigation matters. It obviously makes no sense for a firm to charge $6 million to defend a case that can settle for $6 million. It is even worse for that same firm to attempt to defend the case for $3 million instead of $6 million by cutting corners – whether by under-staffing, over-delegation to junior lawyers or avoiding important tasks. It is worse still for a firm to charge $2 million through the motion to dismiss briefing and then, if it loses, to settle for more than $6 million just because it can’t defend the case economically past that point. And it is a strategic and ethical minefield for a firm to charge $6 million and then settle for a larger amount than necessary so that the fees appear to be in line with the size of the case.

Nor is the answer to hire general commercial litigators at lower rates. Securities class actions are specialized matters that demand expertise, consisting not just of knowledge of the law but of relationships with plaintiffs’ counsel, defense counsel, economists, mediators and D&O brokers and insurers.

Rather, what is necessary is genuine reform of the economics of securities litigation defense through the creation of a class of experienced securities litigators who charge lower rates and exhibit tighter economic control. Undoubtedly, that will be difficult to achieve for most securities defense lawyers, who practice at firms with supercharged economics. The lawyers who wish to remain securities litigation specialists will thus face a choice:

  1. Accept that the volume of their case load will be reduced, as they forego smaller matters and focus on the largest matters (which Biglaw firms are uniquely situated to handle well, on the whole);
  2. Rein in the economics of their practices, by lowering billing rates of all lawyers on securities litigation matters, and by reducing staffing and associate-to-partner ratios; or
  3. Move their practices to smaller, regional defense firms that naturally have more reasonable economics.

I’ve taken the third path, and I hope that a number of other securities litigation defense lawyers will also make that shift toward regional defense firms. A regional practice can handle cases around the country, because litigation matters can be effectively and efficiently handled by a firm based outside of the forum city. And they can be handled especially efficiently by regional firms outside of larger cities, which can offer a better quality of life for their associates and a more reasonable economic model for their clients.

Consequences for D&O Insurance

D&O insurance needs to change, as well. For public companies, D&O insurance is indemnity insurance, and the insurer doesn’t have the duty or right to defend the litigation. The insured selects counsel, and the insurer has a right to consent to the insured’s selection, but such consent can’t be unreasonably withheld. D&O insurers are in a bad spot in a great many cases. Because most experienced securities defense lawyers are from expensive firms, most insureds select an expensive firm. But in many cases that spells a highly uneconomical or prejudicial result, through higher than necessary defense costs or an early settlement that doesn’t reflect the merits but that is necessary to avoid using most or all of the policy limits on defense costs.

Given the economics, it certainly seems reasonable for an insurer to at least require an insured to look at less expensive (but just as experienced) defense counsel before consenting to the choice of counsel – if not outright withholding consent to a choice that does not make economic sense for a particular case. If that isn’t practical from an insurance law or commercial standpoint, insurers may well need to look at enhancing their contractual right to refuse consent or even to offer a set of experienced but lower-cost securities defense practices in exchange for a lower premium. It is my strong belief that a great many public company CFOs would choose a lower D&O insurance premium over an unfettered right to choose their own defense lawyers.

Because I’m not a D&O insurance lawyer, I obviously can’t say what is right for D&O insurers from a commercial or legal perspective. But it seems obvious to me that the economics of securities litigation must change, both in terms of defense costs and defense-counsel selection, to avoid increasingly irrational economic results.

Are We Entering a Bear Market?

We promise, when we wrote our monthly discussion a few weeks back titled, “At the Margin,” we had absolutely no magical insight into the price correction U.S. stocks experienced last week and this, one of the more noticeable in quite some time. You may remember our early August discussion heavily detailed the frailties of human decision-making regarding investments, with particular light being cast on emotional crowd behavior. Greed and fear are two of the most emotionally dominant drivers of decision-making, and two of the greatest enemies of investors. We’ve learned after decades of experience in the financial markets that controlling our emotions is the most important personal exercise for investment decision-making. Having said this, we thought it was important to look at the bigger picture in light of the downward movement in the U.S. and global stock markets over the last several trading days.

Although it’s never fun to experience a price correction, we need to remember that price corrections are normal in financial markets. What is abnormal are markets that go straight up without corrections — or markets that go straight down, for that matter. With all major U.S. equity markets off 10% or more as of this writing, one of the longest periods in market history without a 10% correction has ended. The last time we experienced one was in 2011. The steep correction that has taken place in the last week in U.S. equity markets appears to be a combination of emotional selling and forced selling because of margin calls, as the fundamentals of the markets have not drastically changed in the past week.

Let’s step back for a second.

Is this the beginning of a bear market in US stocks? No one knows. For now, there is not enough “weight of the evidence” to suggest this, but we’re keeping score. Although few probably realize this, about a month ago 20% of the S&P 500 stocks had already fallen 20% from their highs, well before the recent correction in the major indexes. The fact is that a “stealth correction” has already been occurring for some time now. If you own the stocks that have corrected in this manner, you are fully aware. What happened in recent days is that a lot of the “winners” of this year sold off. Historically, market corrections have been nearer an end than a beginning once the leaders finally correct. We will be watching market character closely in the weeks ahead.

It has been so long since we have experienced any type of even semi-meaningful correction in the U.S. equity markets that we have been convinced, when it finally arrived, it would feel like a bear market and emotions would be highly charged. Sound familiar?

Is there plenty to worry about in financial markets and global economies today? You had better believe it, but there has been plenty to worry about for years now in the aftermath of the Great Recession. U.S. corporations and households are a lot healthier today than was the case a number of years ago. Perhaps ironically, it’s the government sector where we find balance sheets impaired. It’s a good thing we can’t buy share ownership in global governments.

The worries will never stop; there is always something to worry about with the flood of data tied to financial markets and global economies. The key is assessing the magnitude of the reality of these worry points and how they may affect real world economic outcomes.

For now, no one knows where the markets will travel with any day-to-day precision. We have been expecting a correction for some time now, although having it happen in just a few days feels like quite the dramatic event. That sense of “free falling” over a short time is never comfortable. We instinctively act to stop the feeling by any means possible; it’s just who we are.

We believe it is imperative to do two things as we move ahead – 1) keep our emotions in check while thinking objectively and 2) assess forward market character on a continuing and intensive basis. As we have stated many a time in our communications to you, risk management is the key to successful investment outcomes over time. We know emotions have recently run higher than has been the case for some time now, and because of this it feels the risks of being invested in the equity markets are greater. If the weight of the evidence tells us this for-now-short-term correction is to become something much deeper, we will not hesitate to take protective action. The key in investing is not pinpointing the market peak prior to a correction nor nailing an exact interim market bottom before a rally. The key is avoiding large bear market drawdowns and participating in favorable market environments to the greatest extent possible.

What Is the Killer App for Insurance?

Remember the must-read book Unleashing the Killer App: Digital Strategies for Market Dominance, by Larry Downes and Chunka Mui? I was lucky to get a signed copy at a Diamond Technology Partners event and hear them speak about the killer app. It was in 1998, the start of the e-business revolution, with the emergence of the Internet as a platform for a new business model. Every company was holding executive management strategy sessions discussing the book and brainstorming. In the insurance industry, many were putting up their first websites and beginning to think about e-business opportunities that could become their killer apps.

Many insurance companies failed in this effort. Their vision wasn’t big enough. Their desire to upend existing models wasn’t strong enough. Rather, they thought incrementally and cautiously. This resulted in strange hybrid solutions, such as websites with no integration to back-end systems. Requests were printed off and manually put into the systems. Many companies wasted time on vaporware — ideas that never got off the ground because of organizational angst or a lack of leadership.

The late 1990s were an exciting and painful time as we recalibrated our thinking toward an entirely new era of business. In spite of our efforts, we fell a lap or more behind in our race toward innovation.

But some companies succeeded. Think about Esurance and Homesite, startups that understood the opportunities and launched their businesses around this time. These companies exploited the dramatic changes introduced by the Internet and challenged one of the long-held business assumptions, that agents were required to sell and service insurance with direct-to-consumer models. As a result, they emerged as formidable, innovative companies.

Do established insurers have another chance to stay in the race?

Recently, I read the follow-up to the first book, this one titled, The New Killer Apps: How Large Companies Can Out-Innovate Start-ups, and another titled, Billion Dollar Lessons, both by Chunka Mui and Paul B. Carroll. Interestingly, the follow-up takes the view that decades- or century-long established companies can out-innovate today’s start-ups, many of whom are considered unicorns (pre-IPO tech start-ups with at least a $1 billion market value). These unicorns and other start-ups have emerged in the last few years with not only massive valuations but with real business models, real revenue and real customers — unlike in the first Internet boom. Think of Uber, Airbnb, Snapchat, SpaceX and Pinterest.

Even more compelling for insurance is the rapidly growing intensity of change being influenced by these companies. Consider Uber and the impact on auto insurance, Airbnb and homeowners insurance or Snapchat’s new payment options.

The authors are quick to point out what we should all recognize, that being big AND agile is essential in today’s rapidly changing world of converging technology innovations, including mobile, social media, sensors, cameras, cloud and emergent knowledge. They estimate that more than $36 trillion of stock-market value is up for “re-imagination” in the near future — meaning that either existing companies reimagine their business and claim the markets of the future or the alternative may happen and they may be reimagined out of existence!

When the authors compared successes and failures of established companies, they found that successful companies thought big, started small and learned fast. Failures commonly missed on one or all of these points. Is the insurance industry thinking big enough yet? Are companies innovating by starting small? And are they learning fast by experimenting, testing and learning from failures?

The only way insurers stand to catch up in a race where the trophy is not just success but also survival, is to out-innovate the competition, including the new competition from outside the industry looking to disrupt insurance. It’s possible, but it is going to require both wise technology investment and a whole new insurance business model mindset.