What To Know About Short-Seller Risks During Pandemic
Avi Weitzman, Barry Goldsmith and Jonathan Seibald
Law360, 3 June 2020
As the world struggles to cope with the COVID-19 pandemic, and volatile markets are rattled by the latest virus and economic news, publicly traded companies are increasingly susceptible to fraudulent short-seller attacks. While legitimate short selling plays an important and well-recognized role in the public markets, there are a few who have abused and misused short selling to manipulate the price of public company stock.
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Market Manipulation and Directors Fiduciary Duty of Care
Market manipulation of emerging or small cap companies is pervaasive on Wall Street and according to the SEC has increased over 37% in the last decade. The nature and scope of market manipulation schemes is limited only by the creativity and audacity of their perpetrators. While the substance and mechanics of market manipulation schemes may differ, the objective is the same – to inject false information into the marketplace that artificially affects the price of the target companies securities by “interfering with the natural interplay of the forces of supply and demand.” The proliferation of market manipulation scshemes has created challenging risk-management and best practice issues for the directors of targeted companies, which require directors to continuously assess the nature and scope of their fiduciary duty of care.
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