"Never Speak When You Can Wink"
The National Law Journal has an "NLJ Roundtable" entitled "After Sarbanes-Oxley" that includes some very funny and insightful remarks from MoFo's Jordan Eth. I urge you to read the whole thing but here are some excerpts:
- "First issue. Fraud is still illegal.... You know how many securities class actions get filed against companies every year? Roughly 200. You know how many before Sarbanes-Oxley? Roughly 200. You know how many before the reform act? Roughly 200. It's the speed of Bill Lerach's printing press. I mean, it's not all these statutes."
- "Here's one thing you've got in Sarbanes-Oxley. You now have a longer statute of limitations. Now, what does that have to do with Enron and WorldCom? It's usually considered slow if a plaintiffs' lawyer files in 48 hours rather than 24 hours. So did we really need a new statute of limitations?"
- "Before Sarbanes-Oxley, about 3% or 4% of cases had class periods of three years or longer. Now, it's about 20%. Nothing like working on a case where you've got a 4 1/2-year class period. And no one who worked there even knows what's going on, and the systems are changed, and the software is different, and the damages are higher, and it's harder for you to insure the risk because you don't even know how long we could be sued for something we said 4 1/2 years ago? What was going on 4 1/2 years ago? Well, that's a problem."
- "As a litigator, I will tell you that you know documents are just the bane of our existence. Never write when you can speak. Never speak when you can wink."
- "Used to be that . . . the SEC had to prove you were substantially unfit to serve as a director, and then you can be barred from doing that in the future. They've gotten rid of the word substantially. I guess now you could be minimally unfit, barely unfit, and they could bar you. "
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