2004: The Year in Review
Here are my picks for some of the best, worst and oddest securities litigation-related events in 2004:
Best Settlement: The historic settlement in the WorldCom/Citigroup case, which resulted in a massive settlement fund of $2.575 billion. This is the second-largest settlement of all time, behind only the $2.85 billion settlement in 2000 by Cendant Corp. The stakes will be even higher in the upcoming trial of the non-settling defendants in the WorldCom case, which is set to begin Feb. 28.
Best Friend of the Plaintiffs' Securities Class Action Bar: New York Attorney General Eliot Spitzer, whose activism has helped fuel private securities litigation in recent years, spurred yet another huge wave of securities class actions in the fourth quarter of 2004 through his investigation of, and litigation against, insurance brokers and companies. And it now appears that Mr. Spitzer's work may help plaintiffs' law firms on the expense side of their business, as well. In December, his office announced that it was investigating whether improper behavior by insurance companies has been a factor in the rising cost of malpractice insurance for lawyers, and reportedly began interviewing class action attorneys about their particular problems getting insurance.
Best Comeback: After having their securities class action against Bristol-Myers Squibb Co. thrown out by a federal judge in April 2004, shareholders appealed to the Second U.S. Circuit Court of Appeals. Even before any ruling came from the appeals court, the investors were able to strike a $300 million settlement agreement, one of the 20 largest of all time.
Best Last Laugh: Back in 2003, a 71-year-old West Palm Beach retiree who lost $2 million when MCI and WorldCom stock plummeted, took the novel legal approach of suing Citigroup for his pain and suffering (which allegedly included high blood pressure, anxiety attacks, and mental and physical stress) under the Florida tort of "outrage." Told that at least one prominent securities defense attorney found the claim laughable, plaintiff's attorney Ted Babbitt countered, "We'll see who laughs last . . . it only takes a finding by one judge to make this cause of action available to millions of shareholders." In September, a state circuit judge denied a motion to dismiss the suit, a ruling that Mr. Babbitt's firm says has put the case "on a road to a Florida state jury trial and potential punitive damages."
Worst Holiday Season: Martha Stewart, who spent the holidays as an inmate in the minimum-security women's prison in Alderson, West Virginia (a.k.a. "Camp Cupcake"). Runner-up for worst holiday season goes to all counsel involved in the high-profile criminal prosecution of Richard Scrushy, former CEO of HealthSouth, who is scheduled to go to trial on Jan. 5.
Best Line Written about the Martha Stewart Case: In February, Ms. Stewart's lawyers announced that she would not testify and would put on only one defense witness and a handful of documents. Her lawyers estimated that her defense would take about 15 minutes, or as Greg Smith of the New York Daily News put it, "the same amount of time the diva recommends letting a German Chocolate Inside-Out Cake cool after baking."
Harshest Opinion: The 69-page decision by Chief Administrative Law Judge Brenda P. Murray prohibiting Ernst & Young from taking on new audit clients for six months. In her decision, Judge Murray said "the evidence shows that [E&Y] has an utter disdain for the Commission's rules and regulations on auditor independence."
Most Eye-Opening New SEC Enforcement Trend: Huge penalties (tens of millions of dollars) against corporations for perceived non-cooperation during SEC investigations.
Most Eye-Opening New DOJ Prosecutorial Trend: The quasi-"deputization" of private counsel conducting internal investigations of alleged fraud at corporations. In April, several former executives at Computer Associates International were indicted for obstruction of justice based on statements made not to any government official but rather to the company's outside counsel, which was conducting an internal investigation of possible financial fraud.
Worst Headline: "SEC expected to keep watching out for investors," The Associated Press, Sunday, Dec. 12. Of course, this is only an "expectation."
Most Unexpected Reprieve: Gary Winnick, former chairman of Global Crossing. After a lengthy SEC investigation concerning the public disclosure of certain "swaps" of fiber-optic network capacity with other telecom companies, the SEC's Enforcement Division recommended that the SEC bring a case and impose a fine against Winnick. After Winnick reportedly agreed to settle by paying a fine of $1 million, the proposed case and settlement were presented to the SEC commissioners for approval. In a highly unusual occurrence, however, the SEC commissioners voted 3-2 to reject the SEC staff's recommendation, concluding that Winnick did not sign off on the disclosures at issue. As a result, Winnick was neither charged nor fined by the SEC.
Best Comic Relief: The SEC's job posting for an in-house psychologist to help "improve employee attitudes and satisfaction related to employee retention, job satisfaction, burnout, conflict and stress," which prompted an immediate barrage of one-liners. Among them, Bill McLucas (former director of the SEC's Division of Enforcement) reportedly joked, "Just one? They should get a couple." He also suggested that current Enforcement Director Stephen Cutler should get the first appointment once the psychologist came on board so that "he can take out his hostilities with that person instead of my clients." No word on whether the position was ever filled.
A Hearty Welcome to: Class action settlement notices written in plain English as required under the recent amendments to Federal Rule 23(c)(2). Rule 23(c), which now requires that settlement notices be written "in plain, easily understood language," has had a dramatic effect on the readability and usefulness of these important notices.
Good Riddance to: "Buried notice," the dubious practice of trying to avoid competition for the roles of lead plaintiff/lead counsel by publishing the required "notice" of newly filed cases not on a national business wire such as PR Newswire or Business Wire, but rather in places designed not to attract attention (such as in the back pages of a hard copy newspaper). Although the Private Securities Litigation Reform Act, which was enacted in the infancy of the Internet, technically permits notice to be published in any "business-oriented publication," the industry practice and standard is to provide notice via the business wires. Indeed, in March, a federal court in Baltimore ruled that even publishing notice in The New York Times is now insufficient under the PSLRA.
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Comments
Tell me why, when companies are fined millions for their illegal activites that steal billions from investors why they aren't required to repay investors billions? It seems it's very profitable for these criminals to continue to personally keep their obscene illegally gotten wealth. They should have to sell all their personal assets. The trusting investor gets the shaft while the criminals continue their lifestyles
Posted by: Patricia Johnson | March 15, 2005 12:59 PM