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Tuesday, April 8, 2008

Holy International Securities Class Action Trials Batman!

We have to admit that we were crying into our Cheerios a little this week, as the two securities class action cases we thought were going to trial ended up not going that route (keep reading for an update on those two cases) during the first quarter of 2008.

But then we saw that a trial has started in Germany over a share offering in in June 2000 by Deutsche Telekom, the former state owned telecommunications concern.

While the US securities class action settled in 2005 for $120 million, this case is the first test of Gesetz über Musterverfahren in kapitalmarktrechtlichen Streitigkeiten or KapMug which loosely translates to "statute governing representative legal actions on the grounds of capital markets disputes." KapMug was introduced in Germany to deal with mass claims in cases concerning the capital markets.

The Deutsche Telekom matter has generated enough interest and has enough participants that the court hearing the matter was "forced the court to rent a civic hall that provides room for 600 people." Indeed, according to an article from Spiegel Online, approximately 900 lawyers are representing the shareholders.

Though press reports are a bit inconsistent, a few things are clear:

1. The class numbers between 16-17,000.
2. The plaintiffs are seeking approximately $126 million in damages.
3. The German plaintiffs had to wait substantially longer than the US plaintiffs for their day in court.

Spiegel Online, Bloomberg, and the AP all have stories on the Deutsche Telekom case.

For the record, Omnicom Group and Oracle Corp were the two cases scheduled to go to trial that we alluded to earlier.

According to Omnicom's 10-Q for the period ended September 30, 2007, "a trial on any remaining portion of plaintiff’s claim is currently scheduled for the first quarter of 2008."

But, in January, Judge Pauley granted the defendants motion for summary judgment. So that was strike one for our securities class action trial predictor (the 7940 Series).

We did not despair, as we had already found a pre-trial order in the Oracle litigation that set the jury trial for March 24, 2008.

But then we saw this motion, seeking an order vacating the March 24, 2008 trial date and reassignment of the case to another district court judge, as Judge Jenkins had been nominated to a seat on the California Court of Appeal, First District.

And finally we saw this notice, vacating all pretrial deadlines and the trial date. Interestingly enough though, Judge Jenkins intends to "resolve the submitted Motions For Summary Judgment before reassigning the case."

Of course, none of this requires us to update our presentation (here) of the 20 federal securities class action cases that have gone to trial since 1996.

Monday, March 17, 2008

Converium - the new Vivendi?

An issue that has been raised with seemingly increased frequency as of late in US securities class actions is the existence of, and occasion predominance of non-US investors in securities class actions filed in the US courts.

The issue often crops up as noted by The D&O Diary at the lead plaintiff stage, and even at the initial complaint stage. But it doesn't disappear, instead popping up again at the motion to dismiss stage and again at the class certification stage.

(Side note - that seems to be enough stages to have a bona-fide Securities Litigation Palooza)

It is the class certification stage that interests us today, as earlier this month, Judge Cote partially granted and partially denied a motion to certify the class in the SCOR Holding (Switzerland) AG (nee Converium), litigation.

In the Converium litigation, Judge Cote certified a class that included:

- US residents who purchased Converium shares on the Swiss Exchange (SWX); or
- Any person who purchased Converium American Depositary Shares ("ADSs") on the NYSE.

Judge Cote specifically denied certification to that portion of the putative class that consisted of non-US investors that purchased shares of Converium (a non-US company) on a non-US Exchange. Such a class of foreign purchasers who bought a foreign issuer's securities on a foreign exchange is known as an "f-cubed class."

Only time will tell if we see the same result in Converium that we saw in Vivendi, namely dozens and dozens of large institutional investors filing individual or group actions in the US courts.

Monday, February 18, 2008

Yet Another Breed of Opt-Out Case

Most securities litigators can spot a prototypical opt-out fact pattern from a mile away:

1. Good liability
2. Large damages
3. Solvent defendant(s)
4. Motion to dismiss denied
5. Settlement and/or class certification decision

We recently posted about a group of opt-out cases that spawned from just such a fact pattern, with the growing number opt-out cases filed in the Tyco litigation.

We also have spilled some ink about a non-standard opt-out fact pattern, in the Vivendi Universal litigation, where international institutional investors have filed individual or group actions after having been excluded from the class as a result of Judge Holwell's class certification decision.

Well, we have a new breed of opt-out cases to discuss - the Merck opt outs.

Readers may recall that in April 2007, Judge Chesler granted the motions to dismiss with prejudice and dismissed the securities class action pending against Merck related to Merck's Vioxx troubles.

According to Merck's most recent 10-Q, a total of seven opt-out cases have been filed against the company, but here's the first kicker, five of the seven were filed after the class action had already been dismissed by Judge Chesler. As an aside, according to my research, a total of eight opt-out cases have been filed and six were filed after Judge Chesler dismissed the securities class action.

Only two, an October 2005 complaint filed in the District of New Jersey by Stichting Pensioenfonds ABP (a Dutch pension fund) and an August 2005 complaint filed in Multnomah County Circuit Court on behalf of the Oregon Public Employee Retirement Fund, were filed before the motion to dismiss was granted.

As a side note, the Oregon state case has been set for trial in October 2008, though it would not make our list of securities class action trials as it is an individual complaint, and not a class action.

The six post-motion to dismiss complaints were filed on behalf of various international institutional investors, and contain a similar cast of characters to the opt-outs filed in the Vivendi litigation, though with a few twists on the attorneys or groups of plaintiffs involved in a given case. The post-motion to dismiss opt-out plaintiffs and their counsel are:

Grant & Eisenhofer

Norges Bank

Grant & Eisenhofer and Diaz, Reus, Rolff & Targ

Deka FundMaster Investmentgesellschaft mbH
Deka International (Ireland) Limited
Deka International S.A. Luxemburg
Deka Investment GmbH
Frankfurter Service Kapitalanlagegesellschaft mbH
International Fund Management S.A. Luxemburg
Internationale Fonds Service AG
Internationale Kapitalanlagegesellschaft mbH
Metzler Investment GmbH
Munich Ergo Asset Management GmbH

Grant & Eisenhofer, Motley Rice LLC and Sturman LLC

Deutsche Asset Management Investmentgesellschaft mbH
DWS (Austria) Investmentgesellschaft mbH
DWS Investment GmbH
Erste-Sparinvest Kapitalanlagegesellschaft mbH
Landesbank Berlin Investment GmbH
Liechtensteinische Landesbank Aktiengesellschaft
LRI Landesbank Rheinland-Pfalz International S.A.
Oppenheim Kapitalanlagegesellschaft mbH
Oppenheim Pramerica Asset Management S.à r.l.
Pioneer Investments Kapitalanlagegesellschaft mbH
Union Asset Management Holding AG
WIENER STÄDTISCHE Versicherung AG Vienna Insurance Group

Grant & Eisenhofer and Schiffrin Barroway Topaz & Kessler

AFA Livförsäkringsaktiebolag
AFA Sjukförsäkringsaktiebolag on its own behalf and on behalf of Kollektivavtalsstiftelsen
Trygghetsfonden TSL
AFA Trygghetsförsäkringsaktiebolag
Alecta pensionsförsäkring, ömsesidigt
AMF Pension Fondförvaltning AB
Arbetsmarknadsförsäkringar Pensionsförsäkringsaktiebolag
Danske Invest Administration A/S
Fjärde AP-Fonden
Gamla Livförsäkringsaktiebolaget SEB Trygg Liv
SEB Asset Management S.A.
Sjunde APFonden;
Skandinaviska Enskilda Banken AB on its own behalf and on behalf of SEB Investment Management AB
Swedbank Robur AB

Schiffrin Barroway Topaz & Kessler

Allianz Global Investors Ireland Limited
Allianz Global Investors Kapitalanlagegesellschaft mbH
Allianz Global Investors Luxembourg S.A.

As with the Tyco and Vivendi opt-out cases, check back here, as we will be updating the list and tracking these cases as well.

Tuesday, February 12, 2008

Holder-Seller Conflicts and Exploding Class Periods

For some time now, a small, but vocal group of judges have written about the theoretical conflict inherent in many securities class actions - namely that when a case settles, current shareholders are paying damages to a class that includes former shareholders. See e.g. In re Seagate II Technology Sec. Litig., 843 F.Supp. 1341, 1362-64 (N.D.Cal.1994); In re Party City Sec. Litig., 189 F.R.D. 91, 108-10 (D.N.J.1999).

We will leave the legitimacy of the holder-seller conflict theory aside for now.

The $20.1 million tentative settlement in the Lumenis Ltd. securities class action announced yesterday has the ability to test whether investors care about this theoretical conflict, particularly when, as noted in the press release announcing the settlement, "the major portion would be paid on behalf of the defendants by the Company's insurers."

As noted in the press release, the company:

has scheduled a special general meeting of shareholders to seek approval and authorization, in accordance with the Israeli Companies Law, of a proposed settlement of the securities class action litigation that has been pending against the Company in the federal court in New York since 2002.

Though I am not licensed to practice law in Israel, and I did not stay at a Holiday Inn Express last night, it appears that the Israeli Companies Law requires shareholder approval of the settlement as it is considered an "extraordinary transaction."

A quick perusal of the 6-K filed by the company this week breaks the settlement down to a more granular level:

The Company has entered into separate confidential settlement agreements with its primary D&O Insurer, Genesis Insurance Company (“Genesis”), and the two excess D&O Insurers whose policies are immediately above the Genesis policy, Zurich American Insurance Company (“Zurich”) and Lumbermens Mutual Casualty Company (“Lumbermens”), as a result of which it is expected that Lumenis itself will directly contribute $2,736,000 toward the settlement of the Securities Class Action and the above-named D&O Insurers will collectively contribute the remaining $17,364,000, for a total of $20,100,000.

Thus the company will contribute about 13% of the total settlement.

Another interesting provision of the settlement, as detailed in the 6-K is the following:

After the filing of the Stipulation of Settlement, Lead Plaintiffs will file a Third Amended and Consolidated Class Action Complaint (“TAC”) naming the same defendants as are named in the SAC and which will incorporate additional allegations and claims based on those alleged in the SEC Civil Action. The TAC will amend and enlarge the class definition to include persons who purchased Lumenis securities at any time between October 2, 2000 and March 7, 2006 (the “Settlement Class Period”). Lumenis and the other defendants will not be required to respond to the TAC, by answer or by motion, unless and until the Court fails to give final approval to the settlement or it is otherwise terminated, and the Company and the individual defendants retain all of their defenses with respect to the TAC.

Thus, the class has grown quite a bit, having started at a mere seven weeks in the initial complaints, morphed to eight months or so in the amended complaints and now stretching nearly five and a half years, beyond even what the extended statute of limitations found in Sarbanes-Oxley would allow.

This poses an interesting philosophical question - is it reasonable to allow a settlement to extinguish claims that have yet to become time-barred - as the end of the enlarged class period is less than two years old. We'll save that one for another day as well.

Thursday, January 31, 2008

International Vivendi Opt-Outs, Continued

The flow of cases filed by non-US institutional investors in the Vivendi litigation continues.

The newest batch brings the total number of investors that were excluded from the class by Judge Holwell's decision that have in turn filed individual or group claims to 78, spread across 29 different cases.

Those cases have now been consolidated with each other and with the class action. A copy of the consolidation order can be accessed here.

The following institutional investors (and their respective counsel) filed "opt-out" complaints since our last update:

Diaz, Reus, Rolff and Targ and Grant & Eisenhofer

Andra AP-Fonden
MEAG Munich Ergo Kapitalanlagegesellschaft mbH
MEAG Munich Ergo Assetmanagement Gmbh
Nordcon Investment Management AG
Tredje AP-Fonden

Labaton Sucharow

AGF Asset Management, S.A.
Aletti Gestielle SGR S.p.A.
Caisse de Depot et Placement du Quebec
Eurizon Capital SGR S.p.A.
Italfortune International Fund
Novara Aquilone Sicav

Motley Rice

Baden Wurttembergische Investmentgesellschaft mbH
DWS Austria Investmentgesellschaft mbH
DWS Investmentgesellschaft mbH
Forsta AP-Fonden
KBC Asset Management NV
Pioneer Investment Management Ltd.

Schiffrin Barroway Topaz & Kessler

Famandsforeningen Pensam Invest
Fjarde Ap-Fonden
Swedbank Robur Fonder AB

As promised, we will keep a running tally of the non-class Vivendi cases here, so check back for updates.

Monday, December 10, 2007

More International Vivendi Opt-Outs

The trickle of cases filed by non-US institutional investors in the Vivendi litigation continues.

Labaton Sucharow

Irish Life Investment Managers Limited

Motley Rice

Universal-Investment-Gesellshaft mbH

As promised, we will keep a running tally of the non-class Vivendi cases here, so check back for updates.

Wednesday, November 7, 2007

When Opting Out Is Really Opting In

Much has has been written over the last few years about institutional investors excluding certain higher profile securities class actions to file individual or group actions. The process is of course known as "opting out."

But what do you call someone who was never in the case, and files an individual or group action?

That is the altogether predictable consequence of the somewhat controversial class certification decision issued earlier this year in In re Vivendi Universal, S.A. Securities Litigation, No. 02-5571 (S.D.N.Y.), by Judge Richard J. Holwell.

That decision, which certified a class of investors "from the United States, France, England, and the Netherlands" that purchases ordinary shares or American Depository Shares of Vivendi, implicitly and explicitly excluded investors from other countries, notably Germany and Austria.

A number of large international institutional investors that were excluded from the class definition have now started to file individual or group actions in the United States.

The first post-class certification action was filed on behalf of Capitalia Asset Management Sgr, S.P.A. and Capitalia Investment Management S.A. just three months after Judge Holwell's decision. Capitalia Asset Management Sgr, S.P.A et al v. Vivendi Universal, S.A. et. al., Case No. 1:07-Cv-05742 (S.D.N.Y., complaint filed June 15, 2007). The Capitalia entities are represented by Labaton Sucharow.

The Capitalia complaint was followed by more than a dozen others, covering a virtual who's who of European institutional investors.

A copy of one of the group complaints can be found here.

Below is a list of the international institutional investors that have filed individual or group actions and the law firms that represent the investors.

(Last Updated 2/22/08)

Diaz, Reus, Rolff and Targ, LLP and Grant & Eisenhofer, P.A.

Andra AP-Fonden
Alte Leipziger Trust Investment-Gesellschaft mbH
Bayern-Invest Kapitalanlagegesellschaft mbH
Deka International S.A. Luxemburg
Deka Fundmaster Investmentgesellschaft mbH
Deka Investment
Deka International (Ireland) Limited.
Frankfurter Service Kapitalanlagegesellschaft mbH
Helaba Invest Kapitalanlagegesellschaft mbH
HSBC Trinkaus & Burkhardt AG
Internationale Kapitalanlagegesellschaft mbH
Ifos Internationale Fonds Service AG
MEAGMunich Ergo Assetmanagement Gmbh
MEAG Munich Ergo Kapitalanlagegesellschaft mbH
Meltzer Investment Gmbh
Meltzer Ireland, Ltd.
Nordcon Investment Management AG
Norges Bank
Swiss Life Asset Management AG
Swiss Life Funds AG
Swiss Life (Belgium) S.A.
Swiss Life Asset Management Gmbh
Swiss Life Holding AG
Swiss Life Asset Management (Nederland) B.V.
Swiss Life Investment Management Holding AG
Tredje AP-Fonden

Labaton Sucharow
AGF Asset Management, S.A.
Aletti Gestielle SGR S.p.A.
Caisse de Depot et Placement du Quebec
Capitalia Asset Management Sgr, S.P.A.
Capitalia Investment Management S.A.
Eurizon Capital SGR S.p.A.
Irish Life Investment Managers Limited
Italfortune International Fund
Novara Aquilone Sicav

Motley Rice

Baden Wurttembergische Investmentgesellschaft mbH
Deutsche Asset Management Investmentgesellschaft mbH
DWS Austria Investmentgesellschaft mbH
DWS Investment Gmbh
DWS Investmentgesellschaft mbH
Erste-Sparinvest Kapitalanlagegesellschaft mbH
Forsta AP-Fonden
Fortis Investment Management SA
Indexchange Investment AG
KBC Asset Management NV
Landesbank Berlin Investment Gmbh
LRI Landsbank Rheinland-Pfalz International S.A.
Oppenheim Asset Management Services S.A.R.L.
Oppenheim Kapitalanlagegesellschaft mbH
Pioneer Investment Management Ltd.
Pioneer Investments Kapitalanlage-Gesellschaft mbH
Pioneer Investments Austria Gmbh
Raiffeisen Kapitalanlage-Gesellschaft mbH
SEB Investment Mangement AB
Skandia Insurance Company Ltd.
Union Asset Mangement Holding AG
Universal-Investment-Gesellshaft mbH
Wiener Städtische AG Vienna Insurance Group

Schiffrin Barroway Topaz & Kessler

AFA Livforsakringsaktiebolag
AFA Sjukforsakringsaktiebolag
AFA Sjukforsakringsaktiebolag (On Behalf Of Kollektivavtalsstiftelsen Trygghetsfonden TSL)
AFA Trygghetsforsakringsaktiebolag
Alecta Pensionsforsakring Omsesidigt
Allianz Global Investors Ireland Limited
Allianz Global Investors Kapitalanlagegesellschaft mbH
Allianz Global Investors Luxembourg S.A.
AMF Pension Fondforvaltning AB
Arbetsmarknadsforsakringar
Arbejdsmarkedets Tillaegspension
Arca SGR S.P.A.
Danske Invest Administration A/S
Famandsforeningen Pensam Invest
Fjarde AP-Fonden
Industriens Pensionsforsikring A/S
Pensionsforsakringssktiebolag
Pensionskassernes Administration A/S
Sjunde AP-Fonden
Swedbank Robur Fonder AB
Varma Mutual Pension Insurance Company

We will keep a running tally of the non-class Vivendi cases, so check back for updates.

Monday, October 29, 2007

Look Out Mumbai...

According to this article from The Business Standard, the Indian government is planning to enact legislation to allow class action lawsuits to be brought by shareholders.

According to the article, Indian law currently allows individuals to file "public interest litigation...limited to the violation of fundamental rights and not for civil claims or torts."

The legislation, which is part of a broader new "Company Law Bill," is expected to be voted on during the winter session of Parliament, and stems from an expert report submitted to the Ministry of Corporate Affairs back in 2005.

Tuesday, September 4, 2007

Add another log on the fire...

Over at The 10b-5 Daily, Lyle Roberts blogged last week about the travails of Biovail Corporation (NYSE: BVF), which finds itself both as a defendant and a plaintiff in securities litigation.

Biovail_logo.gif

A quick review of the Securities Class Action Services database reveals that the company is actually the subject of litigation in two countries, also having been named as a defendant in a statement of claim lodged in the Ontario Superior Court of Justice.

Additionally, the same group of defendants in the company's suit against short-sellers of the company's stock are named as defendants in a securities class action pending in New Jersey.

Now if only we could get the short sellers to sue the shareholders, then we'd have something...

Tuesday, June 5, 2007

International Institutional Investor "Arms Race"

As recently discussed in our whitepaper, Accountability Goes Global: International Investors and U.S. Securities Class Actions, international institutional investors are becoming increasingly active in US securities class actions.

And as noted here, here, and here, one reason that may be driving the trend is the increased number of official and unofficial affiliations that American class action law firms have announced with foreign based firms.

Well yesterday Schiffrin Barroway Topaz & Kessler, LLP announced a "strategic alliance" with an Israeli based firm, Man-Barak Advocates & Solicitors.

This is at least the third formally announced relationship that Schiffrin Barroway has entered into, after the "formal cooperation" agreement that was announced last year with a German law firm, Winheller Attorneys at Law and a "cooperation" with Italian firm Studio Legale Avvocato Giuseppe L. Rosa & Consulenti Associati that was announced earlier this year.

There are of course informal relationships that exist and that careful observers will have noted. For example, nearly half of the Israeli institutional investor lead plaintiff movants identified by our whitepaper research were represented by a combination of Glancy Binkow & Goldberg LLP and Israeli attorney Jacob Sabo, though neither firm has announced an alliance or agreement.

It appears that the arms race is alive and well.

Tuesday, May 22, 2007

Australian Class Action Firm First Law Firm to Go Public

The Australian based class action law firm Slater & Gordon became the first law firm in the world to go public yesterday, as shares began trading on the Australian Stock Exchange.

According to an article from The Legal Times:

The IPO is the first for a law firm following new legislation in Australia that allows firms to raise funds on the public markets and allows non-lawyers to invest.

The IPO received extensive press coverage in Australia, with articles from the Sydney Morning Herald, The Australian, and The Brisbane Times, among others.

The Legal Times also notes that "a similar bill is under consideration in the United Kingdom," and the Times of London has a story here, on the Slater Gordon IPO and an in depth examination of the possibility of similar public offerings in the UK.

A copy of the Slater Gordon prospectus is available here.

Quote of note:

Lawyers have a primary duty to the courts and a secondary duty to their clients. These duties are paramount given the nature of the Company’s business as an Incorporated Legal Practice. There could be circumstances in which the lawyers of Slater & Gordon are required to act in accordance with these duties and contrary to other corporate responsibilities and against the interests of Shareholders or the short-term profitability of the Company.

Update: Both The D&O Diary and Best in Class have posts on the Slater Gordon IPO.

Monday, March 12, 2007

Pack Your Bags, We're Going to Lagos

The SCAS Research team informs me that a securities class action has been filed against Cadbury Schweppes Plc's Nigerian subsidiary, Cadbury Nigeria Plc, in what is believed to be the first securities class action ever filed in Nigeria.

The class action relates to the revelations by Cadbury last December that it had discovered "a significant and deliberate overstatement of Cadbury Nigeria results, which had existed over a number of years” after increasing its stake in the Nigerian subsidiary.

The Times of London has a story, here.

One of the plaintiffs in the Nigerian class action is Nsongurua Udombana, a professor of international law at the University of Lagos. According to the Times, Professor Udombana and his fellow plaintiffs "are trying to see if we can establish a precedent and start something that could bring a revolution in corporate governance in Nigeria."

egg_logo.gif

Though best known to many as the producer of the seasonally appropriate Cadbury Creme Egg, the company produces a host of well known brands, from Trident to Dr. Pepper. Cadbury also produces regional brands, such as Bournvita, the "biggest selling food drink in Nigeria."

Thursday, March 8, 2007

Canadian Hedge Fund Scandal Rolls On

Manulife Securities International Ltd. today announced that it has filed a proposed class action against Société Générale and related entities over the role allegedly played by Société Générale in the meltdown of Portus Alternative Asset Management Inc., "Canada's biggest hedge fund scandal."

Portus has been in receivership and bankruptcy proceedings in the Ontario Superior Court since February 2005.

The proposed class action seeks damages from Société Générale based on the loss of invested capital as well as losses resulting from Portus Investors' inability to achieve a return on their investment due to the collapse of Portus.

The new class action comes about five months after lawyers for Portus investors filed a class action against PricewaterhouseCoopers and two Toronto law firms, alleging that the professional services firms received illegally withdrawn fees from Portus accounts.

Thursday, July 27, 2006

Insider Trading: Tokyo Drift

An astute reader has emailed me about a new case in Japan that shows that Business Week-style insider trading schemes are no longer limited to the U.S. 

According to this article in the Japan Times, Kazumasa Sasahara, an employee of the business newspaper Nihon Keizai Shimbun Inc., was arrested Tuesday afternoon on suspicion of insider trading.  Sasahara worked in the advertising section at the newspaper's Tokyo office, and allegedly carried  out a scheme in which he traded based on nonpublic information he obtained on planned stock splits by five listed companies before legal notices on the splits were published in the paper.  Sasahara allegedly stole a password to get the information.

According to the Japanese Securities and Exchange Surveillance Commission (and thank you, Japan, for adding that word "Surveillance" to your the title), Sasahara generated about 30 million yen in illicit profits (about $256,000 per Google).

Two other notable items in the article that show how far the U.S. is in front of Japan in the insider trading industry:

  1. "It is believed to be the first time that an employee of a media organization has been arrested on insider trading allegations."
  2. "It is the first time the security watchdog has filed a criminal accusation for insider trading involving multiple stock issues."

Tuesday, March 7, 2006

"More Nations Open the Door to Securities Lawsuits"

ISS' Ted Allen has an excellent article in this month's SCAS Alert entitled "More Nations Open the Door to Securities Lawsuits."  The article, posted here on the ISS Corporate Governance Blog, breaks down on a country-by-country basis the discussion that took place at last month's webcast on non-U.S. securities class actions.