In a February 14, 2011 order (here), an Ontario Superior Court Justice has denied the motion of the defendants in the IMAX securities lawsuit pending in Ontario for leave to appeal the December 2009 rulings of Ontario Superior Court Justice Katherine van Rensberg granting the plaintiffs leave to pursue securities claims in a class proceeding.

 

At its most basic the order is essentially just a ruling that the defendants have not satisfied the relevant standard to justify an appeal at this stage in the proceedings. However, the court’s explanation of its decision implicitly endorses Judge Van Rensberg’s prior decisions – including in particular her decision to certify a global class of all Imax investors. Overall, as detailed below, the February 14 ruling is quite favorable to the plaintiffs.

 

Background

As detailed here, in December 2009, in "groundbreaking" rulings representing the first application of Ontario’s newly revised securities laws, Judge van Rensberg entered two orders granting the plaintiffs leave to bring their case, as required under to proceed under the laws, and certifying the suit as a class action. These rulings allowed the plaintiffs leave to proceed with their case against several IMAX directors and officers over disclosures in the company’s 2005 financial statements.

 

Justice van Rensberg’s decisions were the first to test recent revisions to the Ontario Securities Act that potentially made it easier for disappointed investors to bring actions for civil liability against directors and officers of public companies for misrepresentations in public disclosure documents.

　

These statutory provisions, which became effective　in December 2005, were first passed by the Legislative Assembly of Ontario in legislation now referred to simply as Bill 198, which is codified as Section XXIII.1 of the Ontario Securities Act. The　provisions provide for the liability of certain specified individuals for misrepresentations in companies’ public disclosure documents.

 

Section 138.8 (1) of the statute specifies, however, that a liability action cannot be commenced "without leave of court granted upon motion with notice to each defendant." The court is to grant leave only "where it is satisfied" that the action "is being brought in good faith" and there is a "reasonable possibility" the plaintiff will prevail at trial.

 

In granting the plaintiffs’ motion for leave to proceed, Justice van Rensberg held that she "is satisfied that the action is brought in good faith and that the plaintiffs have a reasonable possibility of success at trial in pursuing the statuory claims against all… parties" other than with respect to two individual outside director defendants. 　

　

Justice van Rensberg also specifically held that the plaintiffs had satisfied the requirement for the certification of a global class to assert both the statutory claims and certain common law claims that the plaintiffs had raised. The approved class included both plaintiffs who had bought there IMAX shares on the TSX as well as those who had bought their shares on the NASDAQ exchange.

 

The defendants sought leave to appeal Judge van Rensberg’s rulings to the Divisional court.

　

The February 14 Ruling

Under applicable statutory provisions, leave to appeal may be granted at this stage in the proceedings, inter alia, when there is "good reason to doubt the correctness of the order." In his February 14 order, Superior Court Justice D.L. Corbett held that this standard had not been met and he denied the defendants’ motion for leave to appeal.

 

At its most basic, the order essentially just holds that the statutory standard has not been met. Indeed, throughout the February 14 order, Justice Corbett reiterates with respect to the various substantive issues presented that "appellate courts will be in a better position to address them on a full factual record, after trial."

 

However, in order to substantiate the ruling, Justice Corbett specifies the bases for the determination that "there is no good reason to doubt the correctness of the decision" – which is, as Justice Corbett specifically puts it, that "this is the sort of claim that ought to be permitted to proceed," adding, with respect to the plaintiffs’ substantive misrepresentation claims that "it seems that the plaintiffs have a good arguable case, one that is worthy of moving forward." As detailed in the Discussion section below, Justice Corbett’s analysis in this regard is quite favorable to the plaintiffs, and to plaintiffs generally.

 

Justice Corbett’s determination is most interesting with respect to Justice van Rensberg’s certification of a global class. In holding that there is "no reason to doubt the correctness" of Justice van Rensberg’s decision on these issues, Justice Corbett noted:

 

It would be wrong, of course, to compel foreign investors to be bound by Canadian proceedings, if they prefer to have their claims adjudicated elsewhere. But similarly, it would be wrong to preclude the from participating in Canadian proceedings if they wish their claims to be pursued in Ontario

 

Justice Corbett specifically found there is no prohibition of overlapping class proceedings in different jurisdictions, holding that the separate proceedings should not be viewed as "competing." Rather the proceedings should be "complementary" so as to "achieve a proper vindication of the rights of plaintiffs, fair process for the defendants and the plaintiffs, respect for the autonomous jurisdictions involved and an integrated and efficient resolution of claims." This process does not "required balkanization of class proceedings, but rather sensitive integration of them"

 

Discussion

For the parties, Judge Corbett’s ruling essentially means that the case will now go forward in Ontario. The larger significance may be that another court has corroborated Justice van Rensbert’s approach and conclusions with respect to the application of the new statutory provisions to the IMAX case.

 

But the most interesting aspect of Justice Corbett’s ruling is the determination that the certification of a global class was not clearly in error. The practical effect is a global class action might now go forward in Ontario courts under Ontario law under circumstances in which a global class might not be certified in U.S. courts under U.S. law.

 

As it happens, on December 22, 2010, Southern District of New York Naomi Reice Buchwald denied the motion for class certification in the parallel U.S. IMAX securities suit, holding that various circumstances prevented the lead plaintiff from serving as class representative.

 

But in any event, the plaintiffs in the U.S. case had not sought to include in the class the investors who had purchased their shares in IMAX on the Toronto stock exchange, having amended their motion for class certification in light of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank, to limit their proposed class to those investors who purchased their shares on NASDAQ. That is, the plaintiffs essentially conceded that under Morrison the class in the U.S. class action could not include investors who purchased their shares outside the U.S.

 

In other words, the class certified by the Ontario court is more encompassing than the one that could be certified by a U.S. court. And Judge Corbett’s recent decision found no reason to doubt the correctness of Justice van Rensberg’s determination of these issues.

 

One of the questions commentators have asked in the wake of the U.S. Supreme Court’s decision in the Morrison case is whether plaintiffs’ counsel may seek to pursued securities claims outside of the U.S. The recent action filed in the Netherlands on behalf of Fortis investors provides some evidence that the plaintiffs’ attorneys are indeed pursuing alternatives to litigating cases outside of the U.S.

 

The recent affirmation that Ontario’s courts are authorized to certify a global class in a securities liability suit, in circumstances where a U.S. court cannot, highlights the question whether plaintiffs’ attorneys may look to Ontario’s courts as an alternative securities litigation forum, particularly in light of Justice van Rensberg’s earlier ruling that the threshold for establishing the right to pursue a securities claim under Ontario’s new legal provisions is a low one. Ontario’s courts certainly could be an attractive form at least with respect to Canadian companies.

 

I should add that even beyond the class certification issues, the February 14 opinion is favorable to plaintiffs. Among other things, Justice Corbett stated (in paragraph 29) that fraud alleged do "not require the plaintiffs to adduce direct evidence of the state of mind of the defendants" which "may be ‘inferred from all of the circumstances," which is "a common way of determining knowledge and intention." 

 

Justice Corbett also evinced his support (in paragraph 32) for the view that "a different standard of proof" applies to defendants affirmative defenses than is to be applied to plaintiffs to determine whether they should be permitted to proceed. The plaintiffs standard is "relatively low" while the defendants must establish their affirmative defenses "to a standard sufficient to grand summary judgment dismissing a claim." Indeed, Justice Corbett went on (in paragraph 37), the "constellation of facts" alleged "may well preclude the defendants’ affirmative defenses."

 

Finally, Justice Corbett also supported the view that reliance be established by showing reliance on the market (in a manner similar to a fraud on ther market theory) rather than by individual reliance, if supported by the facts.

 

Special thanks to Daniel Bach of the Siskinds law firm for providing me with a copy of the February 14 decision. The Siskinds law firm and the Sutts, Strosberg law firm represent the plaintiffs in the IMAX case in Ontario.

 

The Sports Highlight of the Decade?: In a February 14, 2011 article, The Wall Street Journal asked the rhetorical questoin whether Wayne Rooney’s game-winning goal in the 78th minute of Saturday’s game between Manchester United (Rooney’s team) and Manchester City is the "sports highlight of the decade." All I know is that when Rooney executed his amazing, backwards bicycle kick, I shouted so loud that my wife came downstairs to make sure I was alright. Best of the decade or not, it is simplty amazing. So here is the video footage — be sure to watch the slow motion replay to really appreciate how amazing the goal is.　

　

http://img.widgets.video.s-msn.com/flash/customplayer/1_0/customplayer.swf

In today’s global economy, business increasingly is conducted cross-jurisdictionally. Company officials and their advisors increasingly must grapple with liability issues arising under the laws of multiple jurisdictions. These liability issues in turn can present complex indemnification and insurance questions. Simply identifying the operative legal considerations can present a significant challenge.

 

A newly updated legal resource may afford valuable information for those struggling with these issues. Information about the new volume, entitled Directors’ Liability and Indemnification: A Global Guide, Second Edition, can be accessed here. This new edition was edited by UK Insurance maven, Ed Smerdon of the Sedgwick Detert law firm.

 

The book’s separate chapters describe the essential legal principles in 38 different countries. This latest edition includes new chapters on China, the Czech Republic, Kazakhstan, South Korea and the United Arab Emirates, among others. Each chapter has been written by a leading law firm in the relevant jurisdiction. For example, the chapter on the United States was written by Dan Bailey and Darius Kandawalla of the Bailey Cavalieri law firm.

 

Each chapter provides a country-specific overview of the legal principles governing directors’ duties and obligations. The text also contains a description of the claims environment in each country, including the relevant considerations regarding criminal and regulatory liability. The information also includes the principles governing the availability of indemnification and insurance in each country, as well.

 

The information for each country is presented succinctly and provides more of an introduction to the critical legal considerations than it does a comprehensive dissertation. This volume will be most useful to those looking for a quick impression of the legal environment. For those looking for a deeper understanding, this volume at least provides some starting points.

 

It seems likely that legal challenges arising from the cross-jurisdictional conduct of business will only increase in the months and years ahead. This volume will likely prove a valuable resource for insurance advisors and others called upon to counsel companies in connection with the associated liability exposures and related insurance considerations. We can only hope that this book’s editors and authors will continue to update and expand this volume in the years ahead.

 

Many thanks to Ed Smerdon for providing me with an opportunity to review an advance copy of the book.

 

D&O Insurance Implications of Dodd-Frank: The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 introduced sweeping reforms to every aspect of the country’s financial system. In addition, many of the Act’s provisions – including in particular its new whistleblower bounty sections — seem likely to lead to increased SEC enforcement activity. The enforcement activity could in turn lead to follow on civil litigation.

 

The Act’s potential enforcement and litigation implications also carry important D&O insurance implications. These considerations and implications are reviewed in detail in a February 2011 article entitled "Dodd-Frank, SEC Enforcement Activity, Whistleblowers and D&O Insurance" (here) by my friend Priya Cherian Huskins and her colleague Carolyn Polikoff of the Woodruff Sawyer firm. Among other things, the authors discuss particular problems that may arise in connection with the Dodd-Frank’s executive compensation clawback provisions, as well as D&O insurance concerns arising from the new whistleblower provisions. The article concludes with a list of eight D&O insurance recommendations.

 

My thanks to Priya for reaching out to me to include a link to the article on this site.

 

Failed Bank Litigation Resources: Most readers who are following the events surrounding the current failed bank litigation wave likely are already familiar with the FDIC’s Failed Bank List, which is updated every Friday evening to reflect the latest banks of which the FDIC has taken control.

 

Another page on the FDIC website of which readers may want to be aware is the FDIC’s Professional Liability Lawsuits page. I have previously linked to this page in prior blog posts, but the FDIC has been updating the page and it now has a number of additional useful features.

 

First, for some time now, the FDIC has been updating the page to reflect the latest number of former directors and officers of failed banks against whom civil actions have been authorized. The page has recently been updated to show that the FDIC has now authorized civil actions against 130 directors and officers. More importantly, it is clear that the FDIC will be regularly updating this page with new information as additional actions are authorized.

 

In addition, in the new feature that readers may find most useful, the FDIC has now provided specific details regarding each of the four civil actions it has filed so far against former directors and officers of failed banks. From the way the information is presented (at the bottom of the page), it appears that the FDIC intends to update this information as additional actions are filed. Accordingly, this page could prove to be a valuable resource over time as the number of FDIC actions grows.

 

I intend to continue to track — and link to –the FDIC litigation on my own as it is filed, as reflected here. At least for now, the FDIC itself also seems to be committed to tracking and providing this information as well. Many readers may find the FDIC’s page to be a highly credible and (we can hope) timely resource on these issues. I will continue to provide links to the lawsuits.

 

And speaking of failed banks, the FDIC did take control of four additional banks this past Friday night, as is reflected on the agency’s Failed Bank List. These four new closures bring the 2011 year to date number of failed banks to 18.

 

The 18 bank failures have been spread across 12 different states, though the largest number of closures this year has been in Georgia (4), which has led the way with the largest number of bank failures since the current wave began. The 18 failures so far in 2011 bring the total number of failed banks since January 1, 2008 to 340.

 

It is interesting to note that the pace of bank closure so far this year is running slightly ahead of the pace in 2010, when the FDIC closed more banks than it had in a single year since 1992. The FDIC did not close its 18th bank in 2010 until February 19.

 

Living in America: On Friday, the determination of peaceful demonstrators in Egypt resulted in the historic overthrow of their oppressive government, but the lead story in Saturday’s Cleveland Plain Dealer was that the Cleveland Cavaliers’ ended their 26-game losing streak on Friday night. The Cavs’ first victory since December also apparently merited a headline in larger type as well.

 

As a letter to the editor in Sunday’s edition put it, "Your newspaper failed to explain why all those Egyptians were so excited about the Cavs game."  

 

Web Animation Video Phenomenon Even Reaches the Insurance Industry: I know that many of you were as interested as I was in the February 11, 2011 Wall Street Journal article about the increasing numbers of customized computer-generated animated videos, which anyone can make on web sites such as Xtranormal.

 

One sure sign of how widespread this new phenomenon has become is the animated Xtranormal video now circulating that takes a light-hearted look at the perennial conversation about business between brokers and underwriters. For those of you who have not already seen it, here is the "I Need New Business" video. (The views, attitudes and opinions expressed in the video do not necessarily reflect those of The D&O Diary or its author.)

 

http://www.xtranormal.com/site_media/players/jwplayer.swf http://www.xtranormal.com/site_media/players/embedded-xnl-stats.swf

In a February 10, 2011 opinion (here), the Second Circuit reversed the lower court’s dismissal of the securities class action lawsuit relating to The Blackstone Group’s June 2007 IPO. The decision, which represents a noteworthy victory for plaintiffs, contains an extensive analysis of "materiality" requirements and could prove significant in the many other pending cases alleging misrepresentations or omissions regarding the subprime meltdown and the ensuing deterioration of the financial marketplace.

 

Background

Blackstone, a leading asset manager and financial advisory firm, conducted an IPO in June 2007. As reflected here, in April 2008, investors who had purchased securities in the offering filed the first of several securities class action lawsuits against Blackstone and certain of its directors and officers, alleging that the company had made material misrepresentations and omissions in its IPO offering documents.

 

The investors alleged that at the time of the offering, Blackstone knew that two of its portfolio companies (FGIC Corporation, a monoline financial guarantor, and Freescale Semiconductor), as well as its real estate fund investments, were experiencing problems. The investors allege that the defendants knew that these problems could subject the company to a claw-back of performance fees or result in reduced performance fees. The defendants moved to dismiss.

 

In a September 22, 2009 order (here), Southern District of New York Judge Harold Baer, Jr. granted the defendants’ motions to dismiss, holding that the alleged misrepresentations or omissions regarding FGIC and Freescale were neither quantitatively nor qualitatively material, and further holding that the alleged misrepresentations regarding Blackstone’s real estate investments were insufficient because the plaintiffs’ allegations failed to specify how the residential mortgage woes would have a foreseeable material effect on Blackstone’s real estate investments. The plaintiffs appealed.

 

The February 10 Order

In an opinion written by Judge Chester J. Straub for a three judge panel, the Second Circuit reversed the district court, holding that the lower court had erred in dismissing the plaintiffs’ complaint.

 

The Second Circuit’s analysis focused on Blackstone’s obligation under Item 303 of Reg. S-K to disclose material risks, trends and uncertainties that could affect the firm’s financial results.

 

In holding that the complaint’s allegations regarding the offering documents’ omission in connection with Blackstone’s investments in FGIC and Freescale met both the quantitative and qualitative materiality requirements, the Court rejected Blackstone’s argument that a loss in one of its portfolio companies might be offers by a gain in another. "Blackstone," the Court said, "is not permitted, in assessing materiality, to aggregate the negative and positive effects on its performance fees in order to avoid disclosure of a particular negative event."

 

The Court added that "were we to hold otherwise, we would effectively sanction misstatements in a registration statement or prospectus related to particular portfolio companies so long as the net effect on revenues of a public private equity firm like Blackstone was immaterial." The question is not whether an investment’s loss in value will affect revenues but the firm "expects the impact to be material."

 

In concluding that the district court had erred in holding that the plaintiffs’ allegations did not satisfy the qualitative materiality requirements, the Court noted that the firm’s Corporate Private Equity division was the firm’s "flagship segment," adding that because the segment "plays such an important role in Blackstone’s business and provides value to all of its other asset management and financial advisory services," a reasonable investor "would almost certainly want to know information related to that segment that Blackstone reasonable expects will have a material adverse effect on its future revenues."

 

The Court added that it could not conclude that Freescale’s loss of an exclusive contract with it larges customer was immaterial in connection with one of the firm’s Corporate Private Equity firm’s largest investments. The Court noted that the failure to disclose the negative developments at FGIC and Freeescale "masked a reasonably likely change in earnings, as well as a trend, event or uncertainly that was likely to cause such a change."

 

With respect to Blackstone’s real estate investments, the Court held that the district court erred in concluding that the plaintiffs’ allegations were deficient because they failed to identify specific real estate investments that might have been at risk. The Court said:

 

This expectation …misses the very core of plaintiffs’ allegations, namely that Blackstone omitted material information it had a duty to report. In other words, plaintiffs’ precise, actionable allegation is that Blackstone failed to disclose material details of its real estate investments, and specifically that it failed to disclose the manner in which those unidentified, particular investments might be materially affected by the then-existing downward trend in housing prices, the increasing default rates for sub-prime mortgage loans, and the pending problems for complex mortgage securities.

 

The Second Circuit concluded that "plaintiffs provide significant factual detail about the general deterioration of the real estate market and specific facts , that drawing all reasonable inference in plaintiffs’ favor, directly contradict statements made by Blackstone in the Registration Statement."

 

Finally, the Court rejected the suggestion that the plaintiffs’ view of materiality would require investment firms like Blackstone to issue compilations of prospectuses of every portfolio company or real estate asset in with the firm has any interest. In order for omitted information to give rise to a claim under the ’33 Act, the reporting company would have to have an obligation (for example under Item 303 of Reg. S-K) to disclose the information and the omitted information would have to be "deemed material."

 

Discussion

The Second Circuit’s opinion in this case represents both a noteworthy victory for the plaintiffs and a development with potential significance for the many other subprime meltdown and credit crisis-related securities pending in Second Circuit.

 

It is not just that the district court’s dismissal was overturned, although that obviously is of most immediate significance for the parties involved. Rather, it is that the reversal was an act of the Second Circuit, to which all of the District Courts in the Southern District of New York – where so many cases are filed — are answerable.

 

So many of the cases growing out of the subprime meltdown and the credit crisis were, like this case, filed in the Southern District of New York. As these cases have proceeded to the motion to dismiss stage, the courts have struggled with what is required to be alleged in order to survive the motion to dismiss. And although not all of the cases turn on questions of materiality, when materiality questions arise, the Second Circuit’s opinion in the Blackstone case could be important, particularly for plaintiffs in ’33 Act cases.

 

The Second Circuit emphasized that, in its view, materiality requirements may be satisfied relatively easily. The Court emphasized at the outset that a ’33 Act complaint "need only satisfy the basic notice pleading requirements" adding that "where the principal issue is materiality, an inherent fact-specific finding, the burden on plaintiffs to state a claim is even lower." With the Second Circuit specifying only minimal pleading requirements, the threshold standard, at least as far as materiality, should become less onerous for plaintiffs – at least in ’33 Act claims.

 

The significance of this is perhaps best seen with respect to the plaintiffs’ allegations concerning Blackstone’s real estate asset investments. Although the district court found that the allegations failed to link the general real estate downturn to Blackstone’s specific real estate investments, in essence the Second Circuit found the plaintiffs’ allegations about the general real estate downturn to be sufficient and required a relatively slight connection between these generalized allegations and Blackstone’s own circumstances.

 

Given that, at least in this case and under the circumstance alleged, allegations about the generalized real estate downturn were found to be sufficient could give heart to other plaintiffs in other subprime meltdown and credit crisis-related securities suits. The complaints in many of these other cases often contain extensive accounts of the generalized real estate downturn. These other plaintiffs will undoubtedly seek to rely on the Second Circuit’s opinion in the Blackstone case, at least in order to show that their allegations satisfy the materiality requirements.

 

All of that said, it should also be noted that a critical feature of this case is Blackstone’s status as a publicly traded private equity firm. Both the district court and the Second Circuit were trying to deal with the threshold issues of what a firm like Blackstone has to disclose about its private equity portfolio investments. This aspect of the case arguably could limit the applicability of the Second Circuit’s opinion. (I will say as an aside that the Second Circuit’s supposedly reassuring words at the end of the Opinion that a firm like Blackstone would not have compile prospectuses of all of its portfolio companies are both unconvincing and unhelpful. The problem is that if materiality is as broad as the Second Circuit suggests, it is very difficult to find the outer edge of what a firm like Blackstone might have to disclose about its portfolio companies.)

　

The fact that the plaintiffs prevailed in their appeal in the Blackstone case may be noteworthy in and of itself. Up to this point, the plaintiffs’ appellate track record in securities suits related to the credit crisis was, well, not particularly encouraging for them. As reflected here, the plaintiffs had failed to overturn dismissals in the first three credit crisis securities appellate decisions, although just last month the plaintiffs in the Nomura Securities subprime-related securities suit did succeed in overturning one part of the dismissal of that case. Plaintiffs generally will take heart from the success in overturning the Blackstone lawsuit dismissal on appeal.

　

The Second Circuit’s reversal serves as a reminder that it may be dangerous to jump to too many conclusions about how plaintiffs are faring in the subprime and credit crisis related cases. There are still many more cases to be heard, and, as this case shows, there is always the possibility that further proceedings may alter or even undo prior results.

 

David Bario’s February 10, 2011 Am Law Litigation Daily article about the Blackstone decision can be found here. Peter Lattman’s post on the Dealbook blog about the decision can be found here.

If the lawsuit filed on February 7, 2011 in the Northern District of Georgia is any indication, the FDIC’s efforts to pursue liability claims will not only include suits against the directors and officers of failed banks, but will also include in at least some instances the failed institutions’ outside law firms. The FDIC’s actions so far raise the question of how extensive the FDIC’s pursuit of these kinds of claims ultimately may prove to be.

 

As reflected in J. Scott Trubey’s February 8, 2010 Atlanta Journal Constitution article (here), the FDIC’s recent suit was filed against a Henry County, Georgia law firm, Smith Welch & Brittain, and J. Mark Brittain, in connection with the firm’s legal services on behalf of Neighborhood, Community Bank, a Newnan, Georgia bank that failed on June 26, 2009.

 

In its complaint, a copy of which can be found here, the FDIC as receiver for the failed bank seeks to recover damages "in excess of $6 million" plus legal fees, based on the defendants’ alleged legal malpractice in connection with the law firm’s handling of certain loans the bank made to a local real estate developer between 2005 and 2007. The complaint alleges that the bank hired the firm to process the documents for the bank’s loans to the developer, who allegedly was also a client of the law firm. The suit alleges the developer of obtaining loans based on inflated property values. The individual defendant allegedly facilitated this, among other things, by creating two sets of settlement statements.

 

The lawsuit filed Monday is the third liability suit filed in Georgia against a failed bank’s outside law firm. As reflected in press reports (here, scroll down), on October 19, 2010, the FDIC filed two separate lawsuits in the Northern District of Georgia against outside law firms for the failed Integrity Bank of Alpharetta, Georgia. (In January, the FDIC filed a separate suit against former directors and officers of Integrity Bank, as reflected here.) The defendants in one of these two lawsuits also include a title insurance company.

 

The FDIC has made no secret of the fact that it may pursue claims against the failed banks’ gatekeepers – not just banks’ former directors and officers, but also, according to the FDIC’s website, the banks’ "attorneys, accountants, appraisers, brokers, or others." The website also states that as of February 7, 2011, the FDIC has "authorized seven fidelity bond, attorney malpractice, and appraiser malpractice lawsuits." which presumably includes the suits described above. (As detailed here, the FDIC has to date filed four lawsuits against the directors and officers of failed banks as part of the current wave of bank failures.)

 

The FDIC’s pursuit of claims against lawyers and other outside professionals is entirely consistent with the actions the agency took during the FDIC crisis. According to NERA Economic Consulting’s August 2010 report about failed bank litigation, in connection with the 2,744 institutions that failed as part of the S&L crisis, the FDIC (or the Resolution Trust Corporation) filed a total of 205 legal malpractice claims and 139 accounting malpractice claims (about 7.5% and 5% of failed banks, respectively).

 

The outcome of the FDIC’s professional liability claims during the S&L crisis, more than anything else, explain the FDIC’s present actions to pursue these claims in connection with the current round of bank failures. According to the NERA report, as a result of the FDIC’s S&L crisis legal malpractice claims, the FDIC recovered $500 million, and as a result of its accounting malpractice claims, the FDIC recovered $1.1 billion. (By way of contrast, the FDIC’s S&L crisis related claims against the former directors and officers of failed banks resulted in recoveries of $1.3 billion). Given this track record, it is hardly surprising that the FDIC is pursing claims of the type described above now.

 

One question that all of this information raises is whether the FDIC will as part of the current round of bank failures pursue claims against the failed institutions’ accountants, as the FDIC did during the S&L crisis. The FDIC’s website does not specify whether or not the agency’s board has so far authorized any claims against accountants or accounting firms.

 

Thought the FDIC has not yet pursued (or indeed, apparently, authorized) claims against the accounting firms of failed banks, it may only be a matter of time until these claims emerge, at least according to a February 8, 2011 Legal Intelligencer article entitled "FDIC Professional Liability Group Set to Pursue Audit Firms" (here). The article lays out the legal theories on which the FDIC is likely to proceed in its claims against outside accounting firms, and also reviews the firms’ likely defenses.

 

Though there have only been a few legal malpractice claims to date and as yet no accounting malpractice claims, this process has really only just gotten started. The FDIC’s website describes an 18 month process that precedes the authorization for the filing of these types of claims. Indeed, the lawsuits discussed above were filed nearly two years after the failure of the related institution.. Given that the current bank failure wave really started to gain momentum in the second half of 2009, it seems likely that as this year progresses – and on into 2012 – we could be seeing a steadily growing number of these types of gatekeeper claims.

 

The fact that the first attorney malpractice claims were filed in Georgia may simply be a reflection of the fact that as part of the current found of bank failures, more banks have failed in Georgia than in any other state. Of the 336 banks that failed between January 1, 2008 and February 4, 2011, 51 have been located in Georgia (including four of the fourteen banks that have failed in 2011).

 

Special thanks to a loyal reader for providing a link to the Legal Intelligencer article.

 

Law Firm Memo Round Up: Among the long list of law firm memos that arrived in my inbox this past week were a number of noteworthy items. First, Jenner & Block attorney Lorelie Masters and her colleague Brian Scarbrough have a February 7, 2011 Law.com article entitled "5 Key Lessons from Stanford D&O Ruling" (here), which analyzes the implications of the Southern District of Texas’s October 13, 2010 ruling in the D&O insurance coverage case involving Allen Stanford. The article highlights the difficulties that that can arise from "in fact" wording in D&O insurance policy exclusions.

 

Second, the Lowenstein Sandler law firm has published a February 2011 memo entitled "Residential Mortgage-Backed Securities Litigation: 2010 Survey" (here), contains a helpful summary of the court rulings in securities lawsuits involving RMBS, and also includes a detailed description of a long list of significant cases.

 

Finally, the Simpson Thacher law firm’s January 2011 "Securities Law Alert" (here) contains a helpful review of recent significant securities law developments, including the district courts’ continuing application of the U.S. Supreme Court’s decision in Morrison v. National Australia Bank. The memo includes a detailed list of the cases to watch in 2011, including a description of the key cases currently before the U.S. Supreme Court.

　

The filing of new subprime meltdown and credit crisis-related securities suits dwindled as 2010 progressed, which some commentators interpreted to suggest that the litigation filing phenomenon might finally have run its course. But though we have now begun the fifth year since the first subprime-related securities suit arrived in February 2007, it appears the process may not yet have played itself out, as the first subprime mortgage and credit crisis related lawsuit of 2011 was filed last week.

 

Moreover, as discussed further below, the early 2011 securities suit filings have reflected the continuation of other prior year’s filings trends as well.

 

The latest credit crisis lawsuit filing grows out of the foreclosure documentation debacle that came to light late last year.

 

According to their February 2, 2011 press release (here), plaintiffs’ lawyers have filed a securities class action lawsuit in the Southern District of New York against Bank of America Corporation and certain of its directors and officers alleging that "concealed defects in the recording of mortgages and improprieties with respect to the preparation of foreclosure paperwork that harmed BofA’s investors when BofA had to temporarily discontinue foreclosures and admit to the problems it was experiencing."

 

According to the press release, the complaint (which can be found here) alleges that

 

(a) BofA did not have adequate personnel to process the huge numbers of foreclosed loans in its portfolio; (b) BofA had not properly recorded many of its mortgages when originated or acquired, which would severely complicate the foreclosure process if it became necessary; (c) defendants failed to maintain proper internal controls related to processing of foreclosures; (d) BofA’s failure to properly process both mortgages and foreclosures would impair the ability of BofA to dispose of bad loans; and (e) BofA had engaged in a practice known internally as "dollar rolling" to remove billions of dollars of debt from its balance sheet over the prior years.

 

The BofA lawsuit is the second securities class action lawsuit to arise in the wake of the foreclosure documentation brouhaha. The first, filed in November 2010, involved Lender Processing Services, which related to alleged disclosure violations relating, among other things, to the company’s alleged use of "robo-signers." Background on the Lender Processing Services case can be found here.

 

I have added the new BofA lawsuit to my list of subprime and credit crisis related securities class action lawsuits, which can be accessed here. David Bario’s February 3, 2011 Am Law Litigation Daily article about the BofA suit can be found here.

 

Chinese Take-Out: The credit crisis litigation wave is not the only litigation trend from prior years that appears to have carried over into early 2011. As I first noted here, one of the trends that developed in the second half of 2010 was a rash of filings involving Chinese domiciled companies. Some commentators speculated in their year end litigation overviews that this development would prove to be a short-lived phenomenon, but at least so far, the filing trend appears to have continued into the first few weeks of the New Year.

 

Just last Friday, February 4, 2011, there were two new securities class action lawsuits filing involving Chinese-domiciled companies.

 

First, according to their February 4, 2011 press release (here), plaintiffs’ lawyers have filed a securities suit in the Southern District of New York against China MediaExpress. The relatively short complaint, which can be found here, alleges that the company’s share price declined after a pair of analyst reports in late January and early February raised questions about the accuracy of many of the Company’s statements and the quality of the company’s earnings.

 

Second, according to their February 4, 2011 press release (here), plaintiffs’ lawyers have initiated a securities class action lawsuit in the Southern District of New York against China Valves Technology and certain of its directors and officers. The complaint, which can be found here, alleges that the company misrepresented the nature of its February 2010 acquisition of China-based Able Delight Valve Company, and also misrepresented Able Delight’s financial condition and circumstances. According to the complaint, the company later disclosed that the Able Delight acquisition was a related party-transaction, the Able Delight was a money losing operation, and that Able Delight is the target of a corruption investigation.

 

The China Valves complaint, like the China MediaExpress complaint, makes extensive references to the reports of securities analysis, who apparently are closely scrutinizing Chinese companies with U.S. listings.

 

The January 11, 2011 Citron Research report quoted in the China Valves case stated, among other things with respect to the Able Delight transaction, "it is almost as if China Valves was trying to break a record with how many securities laws can be broken with a single transaction," characterizing the company’s transaction-related omissions as a "4-in-1 disclosure failure." (The China MediaExpress complaint also cited a research report issued by an analyst from Citron Research.)

 

Nor are these two cases the first of the year involving a Chinese company. As reflected here, on January 12, 2011, plaintiffs’ lawyers filed a securities class action lawsuit in the Central District of California against Tongxin International Ltd. and certain of its directors and officers. Although technically Tongxin is organized in the British Virgin Islands, it operates as a trucking manufacturing company based in China. Like the China Valves case, the Tonxin complaint (which can be found here) also alleges supposed misrepresentation and omissions with respect to a related-party transaction.

 

Some might argue that it is making too much to generalize from the three filings, but the fact is that these cases bear a strong resemblance to ten cases filed in 2010 against Chinese companies. Moreover, there have been relatively few new securities cases filed this year, so these three cases represent roughly one-fifth of all the securities class action lawsuits filed so far this year.

 

In other words, it sure looks like the wave of cases against Chinese companies has continued undiminished into the New Year. With securities analysts apparently highly motivated to ferret out Chinese companies reporting deficiencies, plaintiffs’ lawyers apparently will not lack for further grist for the litigation mill.

 

Even if the 2011 securities class action lawuits filings overall are off to a slow start, the filings so far suggest that prior years’ trends remain at work and are driving many of the new securities suits so far this year.

 

Health Disclosures, Leadership and Legacies: Following Apple’s January 18, 2011 announcement that its CEO, Steve Jobs, would be taking his third health-related leave of absence from the company’s helm, an energetic debate arose on the question of how much a public company must disclose about the medical condition of a key official.

 

I had occasion to reflect on the circumstances and questions surrounding Steve Jobs’ health-related disclosures while reading University of Wisconsin history professor John Milton Cooper, Jr’s excellent one-volume biography of Woodrow Wilson.

 

In October 1919, while traveling the country to try to drum up public support for The League of Nations, Wilson suffered a debilitating stroke. Just a few days later, while recuperating at the White House, he suffered a dangerous prostate infection that according to Cooper left Wilson "near death." Though he emerged from these twin ordeals, Wilson was left weakened, and arguably incapacitated.

 

Notwithstanding the seriousness of Wilson’s condition, the information disclosed publicly about his condition was carefully measured and consistently "vague" and "upbeat." Over the ensuing weeks and months, Wilson would struggle to recover, but he never considered resigning. His Vice President, Thomas R. Marshall, fearful of appearing as if he were plotting some kind of a coup, resolutely stayed in the background.

 

Cooper’s biography overall presents a balanced but unquestionably favorable impression of Wilson. However, with respect to Wilson’s condition in the wake of the medical crises, Cooper’s assessment is harsh. He noted that "the psychological effects of the stroke were … striking" as Wilson’s "emotions were unbalanced and his judgment was warped." Though in the past Wilson had been able to "offset his driving determination, combativeness and overweening self-confidence with detachment, reflection and self-criticism," those compensating behaviors were now "largely gone." Worse, Cooper noted, "his denial of his illness and limitations was starting to border on delusion."

 

The most disturbing thing about Wilson’s condition, however, is that the American people were largely kept in the dark, as was most of official Washington. With the benefit of hindsight and the passage of nearly a century’s time, it seems unbelievable how little of Wilson’s incapacity was disclosed.

 

Though both their conditions and the particulars of their circumstances arguably are entirely different, I still think there may be lessons for Jobs and for Apple from the circumstances surrounding Wilson’s incapacity.

 

The first is how harsh the judgment of history is on the decision to withhold information from the American people about Wilson’s condition. Cooper, an unquestionably favorable biographer, can barely restrain his outrage over the insufficiency of the disclosure about Wilson’s condition. Admittedly, part of Cooper’s outrage is due to the fact that the mistaken picture given of Wilson’s health allowed his wife Edith to exercise a complete gatekeeper role over the President, and practically speaking to determine Presidential policy and action. But even allowing for this historically astonishing aspect of Wilson’s situation, the fact remains that the history’s judgment surrounding the disclosure questions are unforgiving.

 

The second is that the decisions and disclosures surrounding Wilson’s health unquestionably undermined Wilson’s legacy. Cooper’s biography makes a persuasive case that, until his illness, Wilson was an effective President. Cooper also seems to suggest that without the troublesome months after Wilson’s illness, Wilson could well be remembered as a great President. Instead, the turmoil and conflict that followed his illness cast a cloud over Wilson’s entire Presidency. Had he accepted his incapacity and stepped aside when he was no longer able to govern, Wilson’s legacy might have been preserved. But that would have required him to acknowledge – to himself, and more importantly, to the American people – that he was no longer fit for office.

 

There are obvious and important differences between these two circumstances. Jobs, by contrast to Wilson, has been willing to take several leaves of absence from his position. Yet even in the latest announcement, there was an apparently deliberate suggestion that despite everything Jobs is somehow still in control – thus, the company’s January 18 release expressly stated that Jobs will "remain involved in major strategic decisions during [his] leave of absence." Maybe his condition allows him to remain involved, but there is a sense of Jobs struggling to remain in charge.

 

But the questions that surround Apple’s announcement relate less to Jobs’ determination to remain involved than they do the limited information about Jobs’ medical condition and capacity. Since Jobs medical challenges first emerged in 2003, Apple has maintained the same consistently restrained approach toward medical disclosures. The company’s approach may meet applicable legal standards, and, from the perspective of Jobs’s privacy, may be completely understandable. But I wonder if the company might take a different approach if it were to consider the disclosure questions in light of the way it might all look in retrospect, with the benefit of hindsight and after the passage of time.

 

I know that many readers may find my attempt to draw parallels between Wilson’s circumstances and what has recently happened to Steve Jobs to be more than a stretch. There is no doubt that the differences between the circumstances arguably are more important than the similarities. Nevertheless, I still think there are lessons that can be drawn from the way that history has judged the nondisclosures surrounding Wilson’s health.

 

Admittedly, my effort to frame the analysis in terms of the earlier time period may reflect a personal predilection more than anything else. I confess that I have long been fascinated with the sequence of events that followed after the end of World War I. There are a number of first-rate books on the subject. One I have read several times is Margaret Macmillan’s Paris 1919: Six Months That Changed the World, which not only details the deep problems associated with Wilson’s personal involvement in the negotiations of the Treaty of Versailles, but also documents how the peace negotiations left indelible marks throughout the world and to this very day, in places as far flung as Iraq, Palestine, the Balkans and the Far East.

 

The story of the troublesome events surrounding Edith’s Wilson’s caretaker role during Wilson’s illnesses is well told in Phyllis Lee Levin’s book, Edith and Woodrow: The White House Years.　

　

The storm has passed and the sun is shining down on chilly Times Square for the second day of the PLUS D&O Symposium. For those at the conference and for those stranded at home by the weather, I wanted to pass along a couple of links as an accompaniment for today’s conference panels.

 

First, I wanted to pass along a link to a podcast posted yesterday on the webpage for the LexisNexis Corporate and Securities Law Community. The podcast, in which I discuss trends in corporate and securities litigation during 2010, can be found here. The podcast content provides a complement to the discussion during yesterday’s first panel at the conference.

 

Second, for those of you who have not seen it already, I wanted to make sure to pass along a link to the February 2011 Advisen report entitled "Merger Objection Lawsuits: A Threat to Primary D&O Insurers?" The report, which can be found here, provides useful statistical detail and additional commentary regarding the growing levels of M&A related litigation. Full disclosure: I provided commentary for the Advisen report.

 

To those at the conference, enjoy the rest of the day. Please say hello if we have not yet had a chance to meet yet.

 

By the way, I took the picture of Times Square accompanying this post this morniing using my camera phone. "I want to wake up/ in a city/ that doesn’t sleep…"

 

So your flight was cancelled and you weren’t able to make it to New York for the PLUS D&O Symposium? Have no fear, my flight managed to get through and I made it to the conference, and so I am able to report here on the first day’s proceedings.

 

It may be cold consolation for those of you who didn’t make it, but you should know that you are not alone. There were quite a few empty seats in this morning’s sessions, and even a couple of speakers were unable to make it. Fortunately, the conference organizers were able to locate some able substitutes, and the show is going forward.

 

The day’s opening session was, as is customary, devoted to current corporate and securities litigation trends. The session was chaired by Bruce Angiolillo of the Simpson Thacher law firm, who substituted into the role at the last minute. The other panelists included leading members of both the plaintiffs and defense bar, as well as Columbia Law Professor John Coffee.

 

There were a number of recurring themes during the opening session, one of the most interesting of which was the recurring suggestion that the nature of securities class action litigation has been changing. For example, Professor Coffee noted that the source of the wrongdoing has changed; whereas in the past, the typical securities case would involve allegations of financial fraud, now there are many more cases involving alleged product defects or operational deficiencies than there are cases alleging financial fraud or restatements. Plaintiffs’ attorney Michael Dowd of the Robbins Geller firm, while acknowledging that filings of new financial fraud cases may have declined more recently, stated that he "has faith" that the financial fraud cases "will be back."

 

Other panelists echoed this suggestion that securities cases are changing, although they invoked different points of reference. Bill Grauer of the Cooley law firm noted that cases are becoming "much more complex" and "much more fragmented," particularly as one set of circumstances can and often does give rise to a multitude of separate regulatory and litigated proceedings.

 

In focusing on the past year’s most significant developments, the panel extensively discussed the U.S. Supreme Court’s decisions in the Morrison case (about which refer here) and in the Merck case. With respect to the Morrison case, among the topics discussed were the as yet unanswered questions that will have to be resolved in the wake of Supreme Court’s decision.

 

For example, Professor Coffee noted that questions remain on the question whether Morrison will apply to liability claims under Section 11 of the ’33 Act as well as to the Section 10(b) type claims that were involved in the Morrison case itself (at least one court has said that Morrison does extend to the ’33 Act, refer here). He also noted that the applicability of Morrison to tender offer litigation also remains to be answered. Finally, he noted that we are all waiting to find out what impact, if any, the Morrison opinion will have on the jury verdict entered in the Vivendi case (about which refer here).

 

Jay Eisenhofer of the Grant & Eisenhofer firm also noted some additional questions that remain in the wake of Morrison, including whether or not Morrison will preclude claims of persons who purchased American Depositary Receipts in the U.S (at least one court has held that at least with respect to ADRs purchased over the counter, as opposed to on an exchange, Morrison does preclude the applicability of Section 10(b)). He also noted that it will remain to be seen whether plaintiffs who bought their shares outside the U.S. can pursue claims under the law of the non-U.S. company’s home country, and whether or not plaintiffs can and will attempt to pursue claims under the common law.

 

The panel also extensively discussed the U.S. Supreme Court’s decision in the Merck case (about which refer here). Several panelists noted the difficulty defendants will now have, in the wake of Merck, showing that the plaintiffs had access to information sufficient to trigger the running of the statute of limitations, the result of which may be to keep cases alive much longer. Professor Coffee asserted that while the Merck decision may not be as important as the Morrison decision, it will "have an impact," and Dowd agreed that Merck will "have an impact on the quantity and quality of cases."

 

The panel also discussed the rising levels of merger and acquisition related litigation. As a preliminary matter, Eisenhofer expressed some skepticism whether there really is an increase in the level of M&A activity, suggesting that the apparent increase may simply be a refection of the fact that these types of suits may not have been fully "captured" in litigation statistics in the past, and that M&A litigation generally will "rise and fall" with the level of economic activity.

 

One attribute of the M&A related litigation that is arising is that it is often characterized by multiple proceedings in separate jurisdictions, a development that created logistical and cost issues for all concerned, which represents another manifestation of corporate and securities litigation. Several panelists suggested that one reason that these cases may be "migrating" away from Delaware is that the Court of Chancery has proved to be skeptical of many of these cases and therefore unwilling to award plaintiffs significant attorneys fees, particularly where the ostensible benefit to the defendant company as a result of the litigation is slight.

 

The panel discussed the question of whether or not companies can use forum selection clauses in their by laws to try to designate in advance to forum in which litigation involving the Board must go forward. The problem is that at least one court (in the Oracle case, about which refer here, scroll down) has found that a by-law forum selection clause is not enforceable.

 

The panel debated whether or not the whistleblower provisions of the Dodd-Frank Act will be significant. While some panelists expressed the view that the whistleblower provisions could have a significant impact on securities litigation, others were less sure. Professor Coffee noted that at least in the short run, the SEC’s budget constraints and the unwillingness of Congress to fund many activities mandated in Dodd-Frank may constrain the significance of whistleblowing at least for now.

 

As far as what may lie ahead in 2011, the panel discussed at length the cases now pending on the U.S. Supreme Court’s docket, particularly the Halliburton case, which will examine the question of whether or not the loss causation issue must be determined at the class certification stage. Eisenhofer expressed the view that the Halliburton case is "the big case of the Supreme Court term."

 

Professor Coffee stated that he believed, consistent with the holding in the Seventh Circuit and with the amicus brief filed by the Solicitor General, that far from loss causation being an issue that must be determined at the class action certification stage, as the Fifth Circuit has held, the issue of loss causation is a "common issue" that does not have to be proven at the class certification stage because it is not related to the Rule 23 predominance requirement.

 

Dowd, the plaintiffs’ attorney, noted that one consequence of this these efforts to drive issues that appropriately should be dealt with later in the case into a point earlier in the case is that defense expenses accrue much more quickly and much earlier in the case, sometimes creating impediments to later settlement because defense fees have substantially exhausted the available insurance.

 

Angiolillo had an interesting comment on what may be interfering with case settlement. He suggested that over the last ten years or so, it has become increasingly common for company’s D&O insurance to be structured into a tower of as many as twelve layers of insurance, and that as defense fees and prospective settlement amounts move progressively through the towers, points of resistance emerge that interfere with settlement efforts. Angiolillo suggested that the process participants "need to do a better job getting everyone on the same page" because this "structural issue …inhibits settlements."

 

And For Those Who Want More: Those home-bound due to weather and therefore unable to attend this conference and want more about what is going on with respect to directors and officers liability and insurance issues can refer to the several recent blog posts I have added on that very topic, including The Top Ten D&O Stories of 2010 (here), What to Watch Now in the World of D&O (here), A Closer Look at the 2010 Securities Class Action Filings (here), and The Latest Status on the Subprime and Credit Crisis-Related Securities Litigation (here).

 

The number of outstanding securities class action lawsuits in Canada reached an all-time high during 2010 according to a January 31, 2011 report by NERA Economic Consulting entitled "Trends in Canadian Securities Class Actions: 2010 Update." The report can be found here. The report includes an appendix in which securities lawsuit trends in several other countries are summarized, including Australia, Japan, and Italy, as well as the United States.

 

According to the report, there were eight new securities class action lawsuits filed in Canada during 2010. The number of 2010 filings is one fewer than the nine new cases filed in 2009, and two fewer than the record ten filings in 2008. Allowing for the settlements in six cases during the year in which defendants agreed to pay a total of CAN$80 mm, there are now 28 active Canadian securities class action lawsuits.

 

A total of 25 lawsuits have now been filed under Bill 198, the relatively new secondary liability provisions of the Ontario securities laws. Of the nine Bill 198 cases that have settled, the average settlement is CAN$10.7 mm, with four cases settling for more than $10 million and three settling for less than CAN$3 million.

 

Interestingly, one of the 2010 filings involved a company – Canadian Solar – whose shares do not trade on a Canadian exchange (its shared trade on NASDAQ. This is the second Canadian securities suit involving a company whose share do not trade on a Canadian exchange (the first being the 2008 lawsuit involving AIG).

 

The report notes that it has become relatively common in recent years for Canadian companies to be subject to securities lawsuit in the United States. Between 1996 and 2010, Canadian-domiciled companies have been named as defendants in securities class action lawsuits in the U.S. Of these, 17 cases also had parallel class action lawsuits in Canada.

 

The report notes that the number of future filings in the US against Canadian companies may decline in future years owing to the U.S. Supreme Court’s holding in Morrison v. National Australia Bank. Indeed, Morrison could have an impact on at least some of the cases pending in the U.S. against Canadian companies. The report notes that the Morrison case comes at a time when Canada and even other countries may be expanding the reach of their collective action mechanisms. It is entirely possible that there may be an increase of lawsuits in Canada involving companies whose shares do not trade in Canada, particularly in light of the fact that at least one Canadian court has been willing to certify a global class of claimants.

 

The average settlement amount of the 37 U.S. cases involving Canadian companies that have settled is US$71.5 mm, but this average is skewed by two large settlements involving Nortel. The median of these settlements is US$6 mm. For the 14 US cases against Canadian companies that have settled since 2007 (i.e., after the Nortel settlements), the average settlement is U.S $20.5 mm and the median settlement is uS$6.2 mm.

 

This Week at the PLUS D&O Symposium: Weather permitting, this week I will be attending the 2011 PLUS D&O Symposium in New York City. I know that many readers of this blog will also be there. I hope that if you see me at the Symposium that you will take a minute to say hello, particularly if we have not previously met. I look forward to seeing everyone there, or at least everyone who can make it through the storm. Safe travels to all, good luck to all of us with the weather.

　

According to Popular, Inc.’s January 27, 2011 press release (here), the Puerto Rican bank holding company has reached an agreement in principle to settle the subprime related securities lawsuit pending against the company, as well as in the related ERISA lawsuit. The securities suit has settled for $37.5 million, and the ERISA suit has settled for $8.2 million. The settlement is subject to court approval.

　

The plaintiffs’ complaint focused on the company’s accounting for a deferred tax asset. In the three years preceding the beginning of the class period (which went from January 24, 2009 to February 2009), the company had recorded tax loss carry forwards that totaled over $1 billion, largely as a result of the company’s U.S. subprime and other lending operations. The benefit of these deferred tax assets could only be realized if the company experienced sufficient U.S.-based gains within 20 years.

　

To offset the possibility the company might not fully realize the value of the deferred tax assets, accounting rules require reporting companies to take a valuation allowance, but the company recorded no material valuation allowance of this asset until late 2008. The company ultimately recorded an allowance for the full value of the asset. Following the announcement of this action, the company’s share price fell substantially.

　

The plaintiffs allege that the increasing, multiyear U.S.-based operating losses prevented it from anticipating sufficient taxable income to realize the full value of the deferred tax asset prior to the expiration of the 20-year period, yet failed to take a valuation reserve because doing so would have lowered the bank’s risk-based capital ratio below regulatory requirements. The financial picture the company’s treatment of the asset portrayed allowed the company to raise over $300 million in a May 2008 offering.

 

As discussed here, on August 2, 2010, District of Puerto Rico Judge Gustavo Gelpi granted in part and denied in part the defendants’ motion to dismiss.

 

According to the company’s press release, "management expects" that approximately $30 million of the $37.5 million securities class action settlement and all of the $8.2 million ERISA settlement will be funded by insurance. The parties expect to submit a joint motion for preliminary approval of the settlements within 45 days.

 

The press release also notes that the company has not yet reached settlement of the separate but related derivative lawsuit. As discussed here, on August 11, 2010, District of Puerto Rico Judge Jay Garcia-Gregory denied in part and granted in part the defendants’ motion to dismiss the derivative lawsuit.

 

Finally, the press release states that the company is aware of a separate lawsuit filed by individual claimants on January 18, 2011 but that the company has not yet been served.

 

The Popular securities lawsuit settlement is the first of subprime-related securities class action lawsuit settlement of the year. As I noted here, and as Cornerstone Research also noted in it recently released year-end securities litigation, the subprime-related securities suits have been taking longer to resolve than have securities cases generally.

 

Indeed, even though more than 220 securities class action lawsuits were filed between 2007 and 2010 as part of the subprime and credit crisis-related securities litigation wave, only 18 of the cases have settled so far, including the Popular settlement. My guess is that though the Popular settlement is first one this year, there will be many more before year end.

 

The Popular case is also the first subprime-related securities settlement involving a commercial bank. During the subprime-related litigation wave, a host of troubled and failed banks have been sued. A number of those cases have been dismissed, but others, like the Popular case have not been dismissed. Unlike many of the banks involved in these lawsuits, Popular’s banking operations remain functional, so the resolution of this case may have relatively little to say about the cases involving failed banks.

 

I have in any event added both settlements to my running tally of subprime and credit crisis-related case resolutions, which can be accessed here.

 

The Financial Crisis Inquiry Commission Report: On January 27, 2011, the Financial Crisis Inquiry Commission released its report, concluding that the 2008 Financial Crisis was an avoidable disaster caused by both private and public sector failings, including corporate mismanagement and excessive risk-taking on Wall Street and widespread failures in government regulation designed to preserve the safety and soundness of our financial system.

 

The report itself can be found here, and the report’s conclusion, as well as the two dissents filed on behalf of a total of four commissioners, can be found here

 

The Commission was established as part of the Fraud Enforcement and Recovery Act passed by Congress and signed by the President in May 2009. The Commission’s purpose was to "examine the causes, domestic and global, of the current financial and economic crisis in the United States."

 

I must confess that due to the fact that the report weights in at 633 pages, I have not yet had a chance to read the entire report. I will say, based on the parts I have read so far, that whomever is responsible for the authorial voice in the report has definite literary pretensions.

　

Thus, for example, in alluding to the report’s conclusion that the Federal Reserve had failed to adequately supervise subprime mortgage lending, the report rhetorically asks "What else could one expect on a highway where there were neither speed limits nor neatly painted lines?" And of the financial institutions’ recklessly willingness to take on risk, the report says "Like Icarus, they never feared flying ever closer to the sun." And in describing the sheer extent of blameworthiness, the report says "To paraphrase Shakespeare, the fault lies not in the stars, but in us."

 

Maybe the prose is not too high-falutin for a governmental Commission report, but the problem with the use of that kind of language is that it runs the risk of coming off like the work of, say, an over-wrought blogger. (Not that there are any of those around here.)

 

The Commission itself was intended to be bipartisan, but it would be difficult to try to characterize the report as bipartisan, owing to the fact that the only four Republicans on the Commission dissented from the report. The Commission’s inability to reach a consensus, at a minimum, dilutes the report’s persuasiveness, as it now appears more like an expression or a mere point of view, rather than a set of definitive findings.

 

While I intend to try to read the entire report at some point, I have to say that I find it odd that we are being given this report only now, half a year after Congress enacted its massive financial reform legislation. Am I the only one that thinks that the sequencing might have been improved if the reform legislation were only taken up after the Commission issued its report?

 

The one thing I think everyone should know is that the Commission’s website has a separate Resources page, here, that is stuffed with all sorts of useful and interesting graphics, reports, and fact sheets, as well as a glossary of terms and even a searchable document archive. A note on the webpage advises that the Commission will soon be adding to the page an interactive timeline, audio files, interview notes, as well as other materials gathered in the course of the investigation. The graphics library alone is well worth the time to visit the site.

　

In recent days, I have published a series of posts with analysis of and commentary on recent trends in securities class action litigation. As part of this continuing series of posts, I thought it would be useful to include commentary from the plaintiffs’ perspective. With that in mind, I reached out to Max Berger at the Bernstein Litowitz Berger & Grossman firm, and Max graciously agreed to participate in an interview for this blog in the form of a Q&A exchange.

 

By way of background, Bernstein Litowitz is one of the country’s leading plaintiffs’ class action law firms. Max is a partner in the firm and is also head of the firm’s litigation practice. He prosecutes class and individual actions on behalf of the firm’s clients. He and his firm have been involved in some of the highest profile securities class action lawsuits in recent years. Max has indicated with an asterisk in the text of his answers below some of the cases in which his firm has been involved. My questions to Max appear in italics, and his answers appear as indented text (Please note that Max’s portion of the content also includes the indented text following his final answer.)

 

Q.: What do you think were the most important securities litigation trends or developments in 2010?

 

A.: There are several trends we have seen throughout 2010 that are really continuations of developments from prior years. Central among those, from our perspective representing institutional investors as plaintiffs in these cases, is that the challenges investors face in successfully prosecuting federal securities claims continue to grow. On virtually every element of our clients’ claims, including scienter, loss causation, class certification and standing, we have seen the hurdles increase as a result of court decisions adverse to investors. One notable exception is the statute of limitations, an issue where the Supreme Court provided a favorable ruling this year in Merck.* Of course, that ruling was influenced by the heightened requirements for pleading scienter in a securities fraud action that make it virtually impossible for an investor to assert a claim of fraud until there is clear evidence of fraudulent intent.

 

While the obstacles to bringing and prosecuting securities cases have dramatically increased, we have seen the scope of the wrongdoing become exponentially larger. Investors have obtained several large recoveries, even as restatements by public companies have declined. Subprime litigation – by which I refer to the full panoply of cases tied to high-risk lending, mortgage securitization and sales of mortgage-backed securities in the last five or six years – remains front and center. The scope and egregiousness of a number of those cases has prompted significant private institutions that have not previously engaged in securities litigation to file claims, and it will be interesting to see whether the involvement of such institutions in these types of cases is a trend that continues. The recent warnings from the FDIC about the financial condition of many midsized banks, coupled with the initiation of securities class actions against several regional banks at the end of 2010, suggests that investors have not yet learned the full truth about the reckless lending and loan management practices of the banks in which they have invested.

 

Finally, toward the end of 2010, we began to see a resurgence of merger and acquisition activity. For investors in public companies, that trend underscores a need to increase vigilance over the terms of these transactions to ensure that shareholders’ interests are being protected. Indeed, there has been an increase in transactional litigation, and we do expect that trend to increase along with the number of significant deals projected in 2011.

 

Q.: What impact do you think the Dodd-Frank whistleblower provisions will have on private securities litigation? Are there other aspects of the Dodd-Frank Act that you think will have an important impact on securities litigation?

 

A.: In our experience, the whistleblower provisions of Dodd-Frank have not yet had a significant impact on private litigation. As in cases outside the securities arena, there are very high hurdles faced by whistleblowers when they decide to take on a former employer. They risk becoming pariahs in self-protecting industries and often imperil their current employment and future employment prospects. Nonetheless, other significant recoveries that whistleblowers have helped obtain – such as in the recent GlaxoSmithKline case, in which a whistleblower who helped the government recover billions of dollars, stands to recover nearly $100 million for herself – may incentivize whistleblowers to take advantage of the protections afforded by Dodd-Frank. In light of the important role that whistleblowers can play in PSLRA litigation, where plaintiffs need to satisfy exacting pleading requirements without access to formal discovery, these provisions of Dodd-Frank certainly have the potential to be very significant if they lead to more witnesses coming forward and providing the kind of information that plaintiffs need to plead sustainable securities fraud claims.

 

The Dodd-Frank whistleblower provisions, of course, mark a return to the steps taken in the wake of the last round of major corporate scandals at the start of the last decade. Those cases led to Sarbanes-Oxley which included its own whistleblower provisions – provisions which, in our experience, did little to encourage whistleblowers to come forward or to discourage corporate misconduct. We hope that Dodd-Frank will prove more effective, though we are still awaiting significant clarification and rule-making on many of its central provisions.

 

Q.: I have heard you say that you think the settlement in the Pfizer derivative suit represents an important development and may serve as a model for future settlements in derivative cases. What is it about the settlement that you think is important?

 

A.: The resolution in Pfizer is unique in many respects. That case involved allegations of systemic and widespread violations of the drug marketing laws that were not being controlled by Pfizer’s board and senior executives, who also rewarded employees that engaged in these practices with bonuses and allowed retaliation against employees who were trying to stop them. These unlawful marketing activities were responsible for Pfizer paying the largest fine in United States history. Our derivative suit accused the board and officers of breaching their fiduciary duties to Pfizer shareholders. Our challenge was not to just return dollars to Pfizer from these individuals because it would have hardly affected their corporate behavior. We wanted to effect long-lasting institutional change at Pfizer to prevent this conduct from occurring in the future.

 

In crafting the settlement, our objective was to implement a true prophylactic protection for Pfizer shareholders going forward – something with teeth that would prevent the recurrence of conduct that, as we alleged, certain defendants engaged in repeatedly. We also wanted to provide a template for other companies engaged in similar behavior.

 

To achieve that result, we worked with a renowned corporate governance expert – Professor Jeffrey N. Gordon from Columbia Law School – to address our core allegations and concerns. 　The settlement requires the defendants to create a new regulatory board committee with a broad mandate to oversee Pfizer’s drug marketing practices for at least five years.　 Significantly, this committee will have the power to order its own studies and investigations, and can retain independent experts.　 To carry out this mandate, the new committee has access to its own funding – under the terms of the settlement, the defendants’ insurance carriers agreed to pay $75 million into a fund that will be exclusively used to pay for the committee’s work and attorneys’ fees awarded by the court.　 The agreement to provide that funding is one of the most remarkable aspects of this settlement, and it is one that we view as a critical element, if the committee is to be both independent and effective. The settlement also requires the board’s compensation committee to review Pfizer’s compensation policies for employees and consultants with the new regulatory committee to make sure those policies are consistent with compliance requirements, and to discuss possible clawbacks from employees who directly supervise illegal practices in the future.　 The settlement also requires the creation of an ombudsman program to give Pfizer employees a way to alert the company about potential illegal practices and improper pressure from supervisors without fear of retaliation. Incidentally, the fact that we included this ombudsman provision may say something about our view of the whistleblower protections provided by Dodd-Frank, discussed above. Finally, the Committee is to be chaired by an independent director and regular reports of the Committee’s work are required to be made to the full board and the shareholders. The Committee and its structure have been embraced by two former SEC Chairs, Harvey Pitt and Richard Breeden.

 

While Pfizer is not the first case in which the defendants agreed to implement corporate governance reforms as a component of a settlement, we feel that the mechanisms provided for in this settlement will make it the most effective reform of corporate governance achieved through shareholder derivative litigation, paralleling the reforms implemented at Texaco in the wake of the landmark employee discrimination action against that company.*

 

Q.: Many of the subprime and credit crisis-related securities cases are now working their way through the system. Some have been dismissed while others have survived the preliminary motions. Are there any generalizations that can be drawn from the rulings in these cases so far? Can you make any generalizations about the settlements so far in these cases?

 

A.: Our perspective is that, as the courts and the public have become more sophisticated about the subprime mortgage collapse and the ensuing financial crisis, there is increasing recognition of the fact that the bursting of the housing bubble and the economic meltdown were not the result of some unpredictable tsunami. Rather, many of the companies that have been the subject of securities actions contributed to the bubble and subsequent collapse. For example, Judge Buchwald’s recent decision sustaining fraud claims against Ambac and its officers described the defendants’ claims that they were simply the victims of the financial collapse—an argument that has been made repeatedly and which we have seen in a number of our cases—as being "premised on a convenient confusion of cause and effect." According to Judge Buchwald, in that case, if the plaintiffs’ allegations were true, "Ambac [was] an active participant in the collapse of their own business, and of the financial markets in general, rather than merely a passive victim."*

 

Similarly, while some observers responded to the collapse of Lehman Brothers as an unforeseeable result of a credit crisis driven by the housing market, the report of the bankruptcy examiner has made clear that Lehman and its auditor violated basic accounting rules to manipulate Lehman’s balance sheet.* In the subprime and related litigations where plaintiffs are able to marshal these kinds of facts demonstrating that the financial crisis, rather than some force of nature, was in many ways the result of widespread misconduct by corporations and individuals, courts are receptive to investors’ claims that are based on that misconduct. Accordingly, we are seeing fewer dismissals in what we consider to be meritorious cases as well as larger recoveries in many of these cases. The fact that Bank of America agreed to pay almost $3 billion to Fannie Mae and Freddie Mac is a good recent example. Even though some have questioned the amount of that settlement, it does show that these claims have teeth.

 

The only generalization one can really make about the subprime and credit-crisis related securities actions is that they are no different from other securities actions: generally, we are seeing cases dismissed where the plaintiffs cannot muster the evidence required to meet the heightened requirements of pleading scienter or where loss causation cannot be established, while most well-pleaded cases are moving forward and often resulting in significant recoveries as in New Century* (particularly given that, like New Century, many of the issuers at the heart of the subprime fiasco are now bankrupt). That said, as with other securities litigation, we have seen some dismissals of cases that we consider meritorious, but those situations do not appear unique to the subprime arena.

　

Q.: What impact has the U.S. Supreme Court’s opinion in Morrison v. National Australia Bank had on securities litigation? How has it changed your firm’s approach to cases involving foreign domiciled companies? Is your firm considering alternative approaches on behalf of foreign claimants, such as pursuing claims in courts outside the U.S.?

 

A.: There is no question that Morrison has had, and will continue to have, a significant impact on investors and on the function of the capital markets more broadly. Through that decision, the Supreme Court has largely denied investors—including U.S. investors who purchase securities abroad—the protections of the federal securities laws, regardless of the extent to which foreign companies engaged in misconduct within the United States. There are a number of what we consider to be very significant cases, where the claims of fraud have real merit, in which U.S. investors may be left with no practical recourse. We will need to see how investors, plaintiffs’ counsel and the courts respond in the coming years, and whether Congress, in turn, takes steps to correct this narrowing of the federal securities laws.

 

Many of the institutions we represent are considering different avenues to protect themselves. In the Toyota securities litigation,* for example, the Maryland State Retirement and Pension System as Lead Plaintiff has asserted claims under Japanese law on behalf of investors who purchased Toyota shares on the Tokyo exchange, in addition to the Exchange Act claims asserted on behalf of purchasers of Toyota securities on the New York exchange. It is also possible that Morrison will lead to an increase in foreign litigation, as well as individual domestic actions brought under state law, which was not impacted by the Supreme Court’s ruling in Morrison. The recent Fortis filing in the Netherlands certainly indicates that U.S. and foreign investors are open to considering litigation outside of the U.S., but whether investors will find the same protections in foreign litigation that they have found here remains to be seen. Many significant cases that are subject to Morrison are still working their way through the District Courts and we will see what other strategies investors pursue in response to Morrison as those courts, and the appellate courts, render guidance interpreting the Supreme Court’s decision.

 

Q.: If you were a D&O underwriter, what would you be interested in knowing about a company that you were underwriting? What do you think the most important risk indicators would be?

 

A.: My focus would be on the company’s leadership and the corporate governance structure that is in place. Are the directors independent and are critical board committees comprised of independent directors? Most importantly, are a majority of the directors on the compensation, compliance and audit committees independent? It is critical that directors have relevant industry experience. While service on other corporate boards may bring relevant experience, I would also be wary of directors who are concurrently serving on multiple boards. Finally, with regard to management, I would examine the compensation structure. Is executive compensation tied to performance? If so, are the metrics being used objective or subject to manipulation? And significantly, are executives being rewarded for achieving long-term objectives rather than short-term goals? As we have seen repeatedly, incentivizing executives to achieve near-term benchmarks for growth or performance can create a motivation to manipulate results to achieve compensation goals, whereas long-term incentives can bring the interests of management in line with the objectives of the company’s shareholders.

 

Q.: There have been a lot of changes in the environment surrounding securities litigation in recent years, all the way from important court decisions to changes in the plaintiffs’ bar. What do you think the most important changes have been and why?

 

A.: The principal changes we have seen over the past 15 years have been the legislative and judicial actions to raise imposing hurdles to prosecuting securities cases, particularly as class actions. Those hurdles have dramatically raised the bar for effective prosecution and private enforcement. As a result, these cases have become much more expensive and problematic. I am not the first to observe that in many securities cases, the evidence that must be marshaled in order to survive a motion to dismiss is more than what you would need to get some other cases past summary judgment, and that requires a significant investment of time and resources in cases that may not be sustained. This, in turn, has resulted in a culling of the herd of law firms prosecuting these cases. In many ways, I feel we have also seen the plaintiffs’ bar rise to meet these challenges and the level of practice among the plaintiffs’ firms is far more sophisticated than it was before the PSLRA. Frankly, firms unable to rise to meet these challenges cannot succeed under the regime that has been implemented since 1995.

 

Whether as a result of that increased sophistication, the heightened hurdles to advancing beyond the pleading stage, the nature and scope of the cases we are seeing or some combination of those elements, we are certainly seeing higher recoveries in the cases that are being prosecuted. And not only higher absolute recoveries, but a better percentage of investor losses being recovered in the cases that we consider meritorious. In WorldCom, for example, bond purchasers received $0.65 on the dollar; in Cendant, the recovery was $0.60 on the dollar; in Refco, about $0.50 on the dollar.*

 

Finally, private enforcement of the securities laws is now more important than ever because regulatory recoveries have been wholly inadequate to compensate investors victimized by fraud.

 

Q.: What do you think are the most important trends or developments to watch as we head into 2011?

 

In the coming year, the U.S. Supreme Court—which has in the recent past exhibited an unusual interest in securities fraud actions—will be considering several cases that have the potential to reshape a significant area of our practice. Several commentators have noted that business interests have found a receptive ear on the Roberts’ Court, and have been quite assertive in gaining that audience. Two cases the Court recently agreed to hear regarding the standards for class certification under Rule 23 of the Federal Rules of Civil Procedure—Wal-Mart v. Dukes, which examines the standards for class certification in an employment discrimination action, and Erica P. John Fund v. Halliburton, whichlooks at whether and to what extent investors will be required to demonstrate loss causation at the class certification stage—exemplify such an effort. I believe the decisions in these cases have the potential to profoundly impact the ability of not only investors—but also workers, consumers, patients and employees—to hold corporate wrongdoers accountable in court.

 

The Supreme Court also recently heard arguments addressing the appropriate standards for measuring materiality of information that executives are required to disclose to investors in Matrixx Initiatives v. Siracusano—a question that has ramifications not only for the pharmaceutical and biotechnology industries, which have been the subject of a number of significant decisions in recent years, but potentially for virtually every securities fraud action. The court is also considering another case in which the liability of "behind-the-scenes" defendants—by which I mean third parties that are alleged to have a role in carrying out a fraud, even though the allegedly false and misleading statements cannot be readily attributed to them. Specifically, in Janus Capital Group v. First Derivative Traders,the Court is consideringwhether claims under Section 10(b) can be asserted against a subsidiary mutual fund advisor entity that is alleged to have orchestrated the fraud, even though its parent mutual fund actually made the false and misleading statements. While I believe the circumstances of this case may be unique to the mutual fund industry, the Court certainly has the opportunity to set forth a broad rule of law even if it could narrowly decide the question under the specific facts before it.

 

Another important development for investors to focus on during the coming year will be the ongoing implementation of the Dodd-Frank financial reform legislation. In one recent report, Securities and Exchange Commission officials complained that the agency lacked the proper funding to undertake the significant new responsibilities it was assigned under Dodd-Frank, and had in fact shifted resources used to fund ordinary expenditures—such as the hiring of expert witnesses—to other programs in order to meet its new obligations under the legislation. The perception of how successful the SEC is in fulfilling its mission under Dodd-Frank will likely impact how Congress and the courts view the role of private enforcement of the securities laws, as well as the extent to which investors have been given the proper legal tools to hold wrongdoers accountable.

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Finally, in all honesty, anyone interested in securities litigation trends and developments should read your blog, which is always objective, incisive and very intelligently written. Congratulations, Kevin, and thank you for keeping us all so well informed!

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*In the interests of full disclosure, I note that Bernstein Litowitz Berger & Grossmann LLP serves or has served as lead or co-lead counsel in a number of the above-referenced cases, including Merck, Pfizer, Texaco, Ambac, Lehman Brothers, New Century, Toyota, WorldCom, Cendant and Refco.

 

Many thanks to Max for his willingness to participate in this exchange.