Zur Fraud-on-the market-Theorie im US-amerikanischen informationellen Kapitalmarktrecht : theoretische Grundlagen, Rechtsprechungsentwickling und Materialien

On stock markets, there are regularly (at least) two different information sets: The set determining the market price is not necessarily the same as the one being available to the entity’s management. If the management has the ability to influence the first one, it consequently has the possibility to manipulate the market price. It is sought for conditions under which the general premises of civil law for shareholders’ entitlement to damages are fulfilled taking into consideration an economic capital market theory. Hereby, the first premise is the existence of a damage. The second premise is the damage being caused by the liable party. The prove of the premises is incumbent on the plaintiffs. The fraud on the market-theory facilitates the prove of the first premise: Instead of proving that the investor relied directly on the manipulative statement (or concealment) of the management, it is sufficient to prove that he relied on the integrity of the (manipulated) market price. The fraud on the market-theory obviously influences the conditions sought after. U. S. courts have already accepted the theory in the 1970’s. But not until 1987, the application of the theory was confirmed by the Supreme Court: A chemical company denied negotiations with a competitor about a merger, thereupon shareholders sold their stocks. However, in spite of the denial, the success of the negotiations was announced just a few weeks later and the market price rose. The shareholders claimed for damages resulting from the artificially deflated market price at the time of their selling. The Supreme Court judged: “Because most publicly available information is reflected in market price, an investor’s reliance on any public misrepresentations […] may be presumed.” Though this presumption was made in order to streamline securities fraud litigation, the Supreme Court also (implicitly) demanded the verification of the derived theoretical conditions.