Optimism and auditor liability

There is strong evidence that individuals are optimistic in the sense that they underrate the probability of a negative event occurring. This paper provides a positive theoretical analysis of how auditor optimism affects their incentives to take care under two liability rules: strict liability and a negligence rule. Under strict liability, auditors are held liable when they cause damages to investors. Under a negligence rule, auditors are held liable when they cause damages and in addition, act negligently, that is, fail to meet the standard of due care specified in legal and professional rules. I find the following results. (1) If due care is sufficiently close to the efficient level, a negligence rule distorts auditors’ incentives less than strict liability. Under strict liability, optimism makes the auditor overestimate the chances of finding material mistakes and thus induces suboptimal care. (2) If due care is too strict, the auditor will not exert due care but the same level of suboptimal care under either liability rule. (3) With increasing optimism and in the absence of punitive damages, strict liability becomes less preferable to a precise negligence rule. This statement also holds for vaguely defined standards of due care if due care is sufficiently strict or if auditor optimism is sufficiently high. (4) Punitive damages counteract suboptimal incentives generated by auditor optimism, especially under strict liability.     

Auditors' Liability, Vague Due Care, and Auditing Standards

This paper expands the set of previously considered liability rules to include a negligence liability rule with a vague specification of due care. Auditors who are negligent in conducting their audit are liable for losses that result from reliance on misstated financial statements. However, what constitutes negligence for auditors is not clearly specified in the law. Consequently, courts often resort to Generally Accepted Auditing Standards (GAAS) and Statements on Auditing Standards (SAS) as benchmarks for determining due care. A liability regime that consists of a vague negligence rule supports and amplifies the credibility of auditing standards. While auditing standards alleviate some of the vagueness that is inherent in the legal standard, they also form a lower bound on due care, since an audit of a quality that is lower than the quality that auditing standards require would be considered negligent. Thus, the vague specification of due care enables auditors to commit to audit quality as pronounced in auditing standards. This paper explores this link between professional standards and auditors' legal liability. It establishes that the commitment to auditing standards could not have been as credible as it is, if auditors' liability was determined based on the strict liability rule, or based on a negligence rule with a clearly specified due care, since under these two liability rules courts would not need to refer to auditing standards to establish fault. The paper also demonstrates that a legal regime where audit standards are used as a benchmark to evaluate negligence is not the same as a legal regime where due care is defined clearly. Therefore, previous studies that assumed a negligence regime with clear due care may have overstated the effort level that is induced by legal liability.     

On the Judgment Proof Problem

A party who causes harm to others and is found legally liable but cannot fully pay is said to be judgment proof. When the party who causes the harm is judgment proof, the incentives provided by the negligence and strict liability rules diverge. The payment probabilities implied by the two rules also differ. If the cost of care is non-monetary, as in Shavell's analysis, then the different probabilities generated by the two rules and the injurer's risk aversion combine to show that greater care is optimal under the negligence rule than the strict liability rule. If, however, the cost of care is monetary then the difference in probabilities generated by the two rules suffices to show greater care under the strict liability rule than under the negligence rule. The latter case holds for either a risk averse injurer or a corporate injurer.     

On the Judgment Proof Problem

A party who causes harm to others and is found legally liable but cannot fully pay is said to be judgment proof. When the party who causes the harm is judgment proof, the incentives provided by the negligence and strict liability rules diverge. The payment probabilities implied by the two rules also differ. If the cost of care is non-monetary, as in Shavell's analysis, then the different probabilities generated by the two rules and the injurer's risk aversion combine to show that greater care is optimal under the negligence rule than the strict liability rule. If, however, the cost of care is monetary then the difference in probabilities generated by the two rules suffices to show greater care under the strict liability rule than under the negligence rule. The latter case holds for either a risk averse injurer or a corporate injurer.     

Managerial liability and corporate innovation: Evidence from a legal shock

Despite a longstanding debate over the pros and cons of imposing legal liability on directors and officers (D&Os), there is limited evidence on how D&O liability affects corporate innovation. We study this question by exploiting Nevada's 2001 corporate law change that dramatically lowered D&O legal liability and helped Nevada become the second most popular state for out-of-state incorporations. We find that firms incorporated in Nevada exhibit an increase in innovation outputs relative to matched control firms after the law change, particularly firms facing higher litigation risk or operating in more innovative industries. The results are driven mainly by exchange-listed firms that are subject to better governance than over-the-counter (OTC) listed firms. Lower D&O liability also enables firms to pursue more risky, but potentially more rewarding, explorative innovation. Therefore, although holding D&Os liable may be desirable overall, it also entails a cost by discouraging innovation in some firms. Our study has implications for how the litigation environment may influence sustainable growth via innovation.     

Accidental death and the rule of joint and several liability

Most U.S. states have enacted JSL reform, the move from a regime of joint and several liability (JSL) that allows plaintiffs to claim full recovery from any one of multiple defendants to one where defendants are held liable only for the harm they cause. Contrary to previous theoretical work, we show that JSL reform can increase precaution by judgment proof agent by giving “deep pockets” an incentive to reduce their own liability by bringing judgment‐proof agents into court. This result can help explain our empirical findings showing that JSL reform reduces death rates (and hence increase precaution) for many types of accidents. Together, these results highlight the role that litigation costs and judgment‐proof agents play in the functioning of the American tort system.     

Auditor Reputation Under Different Negligence Regimes

Do auditor reputation effects evolve the same way under precise negligence as under vague negligence? Or are there differences? We assume that investors update their beliefs on unobservable auditor quality when an auditor discloses an inaccurate report. We call this a reputation effect. A necessary condition for reputation effects to occur is that, ex ante, investors expect ‘good’ auditors to take more care than ‘bad’ auditors such that ‘good’ auditors are less likely to issue an inaccurate report. Consistent with empirical evidence, we assume that wealthier (‘good’) auditors tend to take more care than less wealthy (‘bad’) auditors. We find that under vague negligence, reputation effects will occur, inducing both types of auditor to increase the level of care taken. A ‘good’ auditor is likely to exert excessive care. Then, even in the absence of auditor risk aversion, a (properly defined) liability cap is necessary to induce efficient incentives. A contractual liability cap is preferable to a legally fixed liability cap. Under precise negligence, a ‘good’ auditor will exert the standard of due care. However, a ‘bad’ auditor will also do so if sufficiently wealthy. Consequently, ex ante, investors do not expect different levels of care to be taken or reputation effects to occur. A liability cap is not desirable. This paper highlights the importance of non‐legal sanctions in auditor liability. Finally, it links the ‘reputation’ and ‘deep pocket’ hypotheses, both of which have attempted separately in the past to explain the positive correlation between auditor size and auditor quality.     

农村公共卫生服务效果分析和思考——基于海南省调查数据

当前村医的诊疗能力有一定提高。农村居民患者的就医意向和对村医服务态度的评价与其年龄和受教育程度密切相关,同时村医对疾病预防和控制知识的宣传不够,对微利的预防保健工作的重视不够。为更好地发挥三级医疗卫生服务网络“网底”的作用,农村公共卫生服务补偿力度应视不同地区经济发展水平而异,重点向贫困地区倾斜,建立权责分明的村卫生室绩效考核制度,明确各级财政对公共卫生服务项目的补偿比例,鼓励多元化筹资兴办村卫生室。     

Medical malpractice: an empirical examination of the litigation process

New data on medical malpractice claims against a single hospital in which a direct measure of the quality of medical care is available are used to investigate the roles of the negligence rule and incomplete information in the dispute settlement process in medical malpractice. We find that the quality of medical care (negligence) is an extremely important determinant of defendants' medical malpractice liability. More generally, we find that the data are consistent with a model in which plaintiffs are poorly informed ex ante about whether there has been negligence, file suit to gather information, and either drop the case if they find that negligence was unlikely or settle for a positive payoff if they find that negligence was likely. We also find that the cases are resolved earlier in the litigation process when the parties are more certain, one way or the other, about the likelihood of negligence.     

The insolvent subsidiary and liability of the parent corporation in the USA,Argentina, and UNCITRAL

The increasing unacceptability of the concept of entity law and the emergence of the doctrine of enterprise law with respect to many aspects of the legal relationships of parent and subsidiary corporations particularly in insolvent situations is a very interesting issue. This change is very significant because it reflects a growing unwillingness on the part of the courts and legislatures to continue accepting the traditional view of corporate law when it no longer corresponds to the economic reality of the modern business enterprise in a complex industrialized international society. This paper examines the American case law and in particular the decisions that have imposed liability where a company is liable for the obligations of an insolvent subsidiary and by contrast the decisions that have denied liability. The paper also examines the position in Argentina within the Argentine law and the UNCITRAL recommendations in respect of liability issues within corporate groups in insolvency. Copyright © 2010 John Wiley & Sons, Ltd.     

Precision and Manipulation of Non-financial Information: The Curious Case of Environmental Liability

This paper develops a model showing how the environmental liability regime and the precision of the disclosed environmental performance indicator affect managers’ incentives (1) to reduce actual pollution and (2) to manipulate the reported pollution. I assume a company with a separation of ownership and control which can be held liable for environmental damages and distinguish between a negligence regime and strict liability. The results suggest that if there is no manipulation but only a lack of precision of the disclosed environmental performance indicator, a negligence rule induces lower actual pollution levels than strict liability even though a negligence rule is considered to be more lenient. If managers are able to manipulate the disclosed environmental performance indicator, they will do so and actual pollution levels will generally increase. While manipulation makes it easier for shareholders to escape liability under a negligence regime, shareholders suffer from manipulation under strict liability due to higher actual pollution and higher expected damage compensation payments. Therefore, the manipulation level is higher under a negligence regime. My analysis contributes to the environmental performance and disclosure literature by showing that the liability regime is an important determinant affecting environmental reporting and actual pollution decisions.     

Limiting Auditors' Liability: The Potential Consequences

The recent revival of interest in the issue of limiting auditors' liability raises questions about the potential effect of such a limitation on auditors' performance. This paper considers the consequences of limited liability from the perspectives of contracting theory and economic arguments. We examine the potential effect of a reduction in auditors' liability on the standard of care or quality of service they provide, emphasising the "calculus of negligence" concept used by Australian courts. We consider the potential impact of reduced liability on the auditor's decision to shirk responsibilities (the moral hazard problem) and on the value placed on audit services. The analysis shows that placing a statutory cap on auditors' liability has the potential to reduce the effectiveness of bonding mechanisms; provide an avenue for divergent behaviour; lower the level of care provided by auditors; and decrease the value of audit services.     

Ausweitung der Arzthaftung als Einfallstor für neue Formen der Arzthaftpflichtversicherung?

In a recent case, the Austrian Supreme Court remarkably extended medical liability of a gynaecologist for inadequate information about a possible mental handicap of an unborn child. On this occasion, the paper outlines the modified risk exposure of physicians and analyses a possible impact of case-law on the availability and affordability of liability insurance. It raises the question whether a liability crisis could be possible in Austria and briefly explains the underlying U.S. legal and regulatory framework that led to liability crises in the past. In the U.S., alternative risk transfer by means of Risk Retention Groups (RRGs) has been crucial in improving availability and affordability of liability insurance and to rein in liability crises. The Austrian legal and regulatory framework as it stands now would allow for self insurance solutions like Risk Retention Groups but the economic necessity for alternative solutions to traditional insurance schemes seems to be lacking.     

Unbounded liabilities,capital reserve requirements and the taxpayer put option

When firms access unbounded liability exposures and are granted limited liability, then an all equity firm holds a call option, whereby it receives a free option to put losses back to the taxpayers. We call this option the taxpayer put, where the strike is the negative of the level of reserve capital at stake in the firm. We contribute by (i) valuing this taxpayer put, and (ii) determining the level for reserve capital without a reference to ratings. Reserve capital levels are designed to mitigate the adverse incentives for unnecessary risk introduced by the taxpayer put at the firm level. In our approach, the level of reserve capital is set to make the aggregate risk of the firm externally acceptable, where the specific form of acceptability employed is positive expectation under a concave distortion of the cash flow distribution. It is observed that, in the presence of the taxpayer put, debt holders may not be relied upon to monitor risk as their interests are partially aligned with equity holders by participating in the taxpayer put. Furthermore, the taxpayer put leads to an equity pricing model associated with a market discipline that punishes perceived cash shortfalls.     

The benefits of extended liability

We characterize the optimal regulation of a firm that undertakes an environmentally risky activity. This firm (the agent)is protected by limited liability and bound by contract to a stakeholder (the principal). The level of safety care exerted by the agent is nonobservable. This level of care depends both on the degree of incompleteness of the regulatory contract and on the allocation of bargaining power between the principal and the agent. Increasing the wealth of the principal that can be seized upon an accident has no value when private transactions are regulated but might otherwise strictly improve welfare. An incomplete regulation supplemented by an ex post extended liability regime can sometime achieve the second best.     

Scope of Auditors' Liability,Audit Quality,and Capital Investment

One of the fundamental issues in the discussion of auditors' liability is to whom auditors should be held liable for ordinary negligence under common law. Three judicial viewpoints prevail: the restrictive privity approach, the more liberal Restatement approach, and the most liberal foreseeability approach. To compare these three approaches from an efficiency perspective, this paper develops a model that features an owner-managed firm, an independent auditor, a continuum of unrelated lenders, and an impartial court. Double effort-incentive problems appear for the firm and the auditor. The firm has an additional incentive problem due to the sequential nature of its borrowing. This paper shows that the effort-incentive problem and the sequential borrowing problem of the firm render unambiguous improvements in audit effort/quality, capital investment, and social welfare as the judicial approach governing the scope of auditors' liability becomes more conservative.     

Board liability for cyberattacks: The effects of a prior attack and implementing the AICPA’s cybersecurity framework

A significant litigation trend is the rise in lawsuits filed against boards of directors following cybersecurity incidents. We perform an experiment to examine factors we predict will influence directors’ litigation risk. We examine whether jurors are more likely to hold directors liable when a company previously experienced an immaterial cyberattack, and whether subsequently implementing the American Institute of Certified Public Accountants’ cybersecurity risk management reporting and assurance framework (the “Framework”) can mitigate the effects of a prior attack. Consistent with counterfactual reasoning theory, we find jurors are more likely to hold directors liable for a cyberattack when a company previously experienced an attack. Importantly, we also find that directors can reduce this liability risk after a prior cyberattack by subsequently implementing the Framework, especially when they obtain external assurance. Our results have important implications for research, boards, regulators and public policymakers, audit firms, and attorneys who handle cybersecurity-related cases.     

A combination of differentiation and consolidation theory and risk-benefit analysis to examine decisions on mastitis prevention

Abstract

Mastitis infections cause severe pain in dairy cows and are the most costly illness to farmers. This study combined differentiation and consolidation (Diff-Con) theory with risk-benefit analysis to explore how risky decisions are perceived and justified after a decision has been taken. More specifically, using survey data from 428 Swedish dairy farmers, their decisions about adopting preventive measures to control mastitis (mastitis control options, MCO) in dairy herds were examined. The analyses included group comparisons with non-parametric rank tests and use of both ordinary least squared regression and seemingly unrelated regression analysis to examine how prior adoption of MCO affects farmers’ attitudes to the MCO. The results showed that MCOs already adopted were rated higher in perceived riskiness (if not implemented) and in expected benefit (for illness prevention) than non-adopted MCOs. Having made the decision to implement a strategy increased the likelihood of that decision being perceived as more beneficial (reducing mastitis) and risky (in terms of disease increase if not implemented), irrespective of the combination of strategies used on the farm, during the post-consolidation stage. No difference in perceived illness prevalence could explain the farmers’ rating of the MCOs. These findings suggest that there may be a path dependency in farmers’ decision-making with respect to MCO. This implies that novel MCOs may have difficulty in achieving wider implementation. These results have implications for the development of strategies to communicate best practices for use of MCOs and for new research on MCOs and farmers’ decision-making.     

Grüne Gentechnik im Kontext der Haftpflichtversicherung

Genetically modified organisms (GMOs) play regularly an important role in the negotiations on cross-border trade agreements (e.?g. TIPP). Especially the so-called “green genetic engineering” is in the focus of attention because it comprises the development of novel or modified plants and food. However, GMOs are in the public perception still barely accepted and are also heavily regulated by law. Therefore, it is unclear, which liability risks GMOs contain and for which potential claims producers are liable. The aim of the paper is to illuminate the extent to which green genetic engineering is a particular challenge for liability insurance. Also an overview shall be given, which possible damage scenarios can trigger liability cases.     

不真正连带债务理论在保险活动中的应用——兼评“无责免赔”问题

保险活动中,保险人与其他责任人对同一损失同时负有补偿义务的情形时常发生,保险界对其如何处理至今尚未找到明确统一的、具有说服力的理论或者法律依据,以致于虽然《保险法》第60条对相关问题进行了规定,但保险实务中仍然出现了包括机动车保险中"无责免赔"这类被法院认定为无效条款的约定,交通事故人身损害赔偿纠纷中保险人也被不当地判决承担连带责任。将不真正连带债务理论应用于保险活动中,能够为保险竞合和包括保险人补偿义务在内的补偿义务竞合情形提供广为接受的处理方案,能够为保险条款和《保险法》的完善提供理论指导,能够为"无责免赔"争议和交通事故人身损害赔偿纠纷中保险人权利义务合理确定等现实问题的解决提供思路。