Can IPO Terms Actually Preclude Investor Class Actions and Other Traditional Rights of Traditional Shareholders ?

Carlyle Group's IPO papers include - so far - terms purporting to preclude future class actions over securities disclosures. Ahead should be a decision by the SEC on what it will say about the use of such terms. The story in a bit of detail is on the Conglomerate blog. The overall terms of the IPO are characterized in more detail - and more harshly - by Professor Davidoff in a very pointed article on DealBook. As he notes, the offering also eliminates most other traditional shareholder rights.  

The issues are important in many ways. Over time, the answers on the issues will impact companies that face mass tort claims because some of the companies face significant uncertainty, and also have a very real need to maintain a workable capital base.

Good, bad or otherwise, the reality of the marketplace is that financiers and lawyers will always be moving faster than government and existing laws and regulations. Simply including the terms in the IPO - if allowed - will create uncertainties and leverage that would not otherwise exist. Set out below is the introduction to Professor Davidoff's article - the entire article is well worth a read

"It is quite possible that the Carlyle Group, the private equity firm that is preparing to go public, is proposing the most shareholder-unfriendly corporate governance structure in modern history.

It starts with the fact that Carlyle is providing its soon-to-be public shareholders with no power over the company. Carlyle shareholders will have no ability to elect directors. Instead, Carlyle intends for the company to be controlled by its management, primarily its co-founders: Daniel A. D’Aniello, the firm’s chairman, and William E. Conway Jr. and David M. Rubenstein, the co-chief executives. They will have special power to elect Carlyle’s board of directors as long as they and Carlyle’s affiliates own more than 10 percent of the company." 

Investment Banker Skewers Academics Who Miss the Picture on Risk and Compensation

Candor is refreshing. Specifically, a new academic paper apparently suggests that incentive structures at banks at large banks was not a factor in the financial debacle. That conclusion of course does nto pass the smell test. Happily, rather than accepting a tenuous form of exoneration, The Epicurean Dealmaker skewers the study for missing the real world points. He/she or also make the point that public sharing full data would make studies far more useful. 

TED's conclusion? 

"Take it from me: stock prices are an unreliable way to measure corporate performance, and they are an absolutely shitty way to predict executive compensation.

* * *

The second methodological problem which this study seems to suffer from is perhaps more common to finance than other industries, especially in the more highly paid investment banking and corporate banking subsegments. For it is an absolute fact that a very large number of employees in your typical investment bank make enormous amounts of money. Not only do many more bankers than populate the executive suite bring home pay packages which could support small villages in Central Austria comfortably—that is, money which looks like “executive-level” pay anywhere else—but often the CEO and other executive officers of an investment bank are by no means the highest paid employees there. In a decent year, hundreds of employees at large investment banks make millions of dollars, and a substantial subsegment of those bring home tens of millions, if not more. If Messrs. Tonks and friends only collated and computed compensation data for named executive officers and non-executive directors—who, by the way, as non-producers are, relatively speaking, low-paid irrelevancies—then they missed the lion’s share of actual compensation going out the door in my industry. That is certainly the impression I get when I peruse Professor Tonk’s slim précis.

And here is the problem with that: all those uncounted flow traders, M&A bankers, structured products professionals, prop traders, leveraged finance bankers, and derivatives marketers—not to mention all the non-executive group and division heads above them—get paid buckets of simoleons for making money for the firm.

* * *

And this is where I part ways with our dear Herr Professor Doktor regarding his conclusion. If I have correctly identified his study’s methodological weaknesses, not only has he measured the wrong independent variable, but he failed to apply it to the entire set of relevant dependent variables. He doesn’t collect the proper financial performance data—the gross revenue and gross profit metrics upon which investment bankers are paid in the real world—and he doesn’t correlate it against the revenue-producing employees who are producing them. Based upon how my industry actually conducts business and pays its employees, he hasn’t proved anything.

Sadly, Your Dedicated and Evenhanded Bloggist, like many others, would still like to see a comprehensive, data-based investigation of the question which Professor Tonks addresses. Unfortunately, I do not know how one could go about this without at least acquiring time series of aggregate payroll data for all revenue-producing employees at each financial firm, correlated against preferably group or divisional level revenue and profit results. You can just imagine how well that request would go over in the offices of Jamie Dimon or Lloyd Blankfein.

For my part, I continue to believe some banker bonuses were indeed contributory to the financial crisis. My industry’s pay practices and culture were built over decades when the vast majority of business investment banks conducted was agency business. Business like M&A, where you earn a fee for helping a client buy or sell a company, or security underwriting, where you earn a fee for placing client securities with outside investors, or securities market making, where you earn a spread for standing between buy- and sell-side investors as a middleman and temporary warehouser. None of these businesses entailed any material amount of persistent or hidden financial risk to investment banks: we did the deal, we got paid, and we moved on. There are no meaningful, dangerous “tail” exposures from such activities. Accordingly, investment banks got used to toting up the profit and loss for each banker and each business line at the end of each year and paying out a percentage of that as compensation to the people who either brought the money in or who could argue most persuasively they had. Simple.

The problem arose when investment banks (and their bastard cousins and often ultimate owners, commercial or universal banks) began conducting business asprincipals, either explicitly and in full knowledge, or—most dangerously—in total ignorance. Mouthwateringly profitable leveraged lending, structured products, complex derivatives, and proprietary investing of all kinds meant that investment banks no longer conducted business as short-term conduits of temporary risk, but began accumulating long-term financial risks on or off their balance sheet, often without their own knowledge. But when this happens, the old view that Joe in Structured Products should get a massive bonus in February because he brought in $100 million of fee revenue to the firm this year cannot cope with the fact that Joe’s fabulous trades expose the firm to $1 billion in potential losses over the next five years. Even if some investment banks did develop robust and accurate risk-pricing models which accurately tallied and kept track of the massive tail risks metastasizing on their balance sheets—and recent history puts this assertion in considerable doubt—almost none of them drew the connection to compensation practices. Projected firm profits on trades like Joe’s should never be totaled up front when determining Joe’s pay; they should be amortized over the life of the potential risks the ongoing trade poses to the firm. Most banks just didn’t seem to get this important point.3

* * *

There really is a story to be told in here, somewhere, about exactly how and how much banker bonuses contributed to the aggregation of huge hidden and misunderstood risks in the global financial system. From what I can glean from limited evidence, Professor Tonks’ study is not it. Perhaps one day some academic will actually make the effort to understand how my industry works before they design a study to explain it.

Naahh.

Related reading:
Ian Tonks, 
Bankers’ bonuses and the financial crisis (vox, January 8, 2012)"

 

 

Defining An Earnings Metric That Excludes Litigation Costs - GSK Embraces a New "Core Earnings" Metric

Reuters brings this interesting story of GlaxoSmithKline creating a new metric - core earnings - that excludes various categories of costs, including costs for litigation. According to the article, the metric brings GSK in line with some other large pharma entities. One might think the new metric is at least in part a testament to the fact that the litigation industry does matter as companies face large claims. Here's a key excerpt from the article:

"GSK, which announced in July it was changing the way it reports results to give shareholders "clearer visibility of our anticipated progress in 2012 and beyond," presented further details on the move in a briefing for analysts on Thursday.

Legal costs have proved a persistent drag on profits across the drugs industry in recent years, following a slew of patient liability claims and an increasingly aggressive stance by U.S. authorities over cases involving mis-selling of medicines.

Four other elements will also be excluded from GSK's new definition of core EPS -- other operating income and profits on disposals; amortisation and write-offs of intangible assets; major restructuring costs; and accounting adjustments related to material acquisitions.

Up until now, GSK has focused on earnings "before major restructuring."

Setting out the impact of the change, which will take effect from the first quarter of 2012, GSK said that core EPS in 2010 would have been 125.5 pence, rather than 53.9p reported under the old before-restructuring system.

The big difference reflects the fact that massive legal costs were taken in 2010 related to the settlement of claims over its Avandia diabetes drug and sales practices for a range of other products."

 

 

Prosecuting Wall Street

This past weekend, US television magazine 60 Minutes added its voice to the dialog about the absence of criminal prosecutions for the Wall Street fiasco.  The transcript is here from interviews with 2 "whistleblowers"  - one senior executive from Countrywide and a less senior Chase executive. 

Recurring Tactics and Strategies in Securities Fraud Litigation Over Chinese Entities, and Defamation Suits Against Short Sellers

AmLaw Litigation Daily includes this interesting post by David Bario on recurring litigation patterns and tactics in securities fraud litigation regarding Chinese entities, as well as related lawsuits against short sellers who game the market with phony news. Note especially the perceived strategic importance of avoiding discovery. Key excerpts are set out below:

"Silvercorp's preemptive strike against the short-sellers represents a bold new twist in the unfolding China securities litigation. But the company's strategy is also risky. By potentially compelling the defendant Web sites and analysts to disclose any evidence they gathered concerning fraud at Silvercorp, the company could be undermining its own ability to defend against future securities fraud claims.

"Every client always asks, 'can we, should we, and when should we file a defamation action [against short-selling analysts]'" said DLA Piper's Perrie Weiner, who represents a dozen companies, auditors, and other China-linked defendants in class action and regulatory securities matters. "Our standard response is, 'not until after the class action is at least past the motion to dismiss stage.'" (Weiner is not involved in litigation related to Silvercorp and emphasized that he was speaking only in general terms.)

Crucially for defendants, Weiner said, under the Private Securities Litigation Reform Act all discovery is stayed under after motions to dismiss are decided. "We do not think it's an advisable position for issuers in China-related fraud cases to be filing defamation actions until they are at least past the motion to dismiss stage," he said. "If you sue the analysts, you motivate the analysts to come up with all the information and all the diligence they've done in China, which is really hard for a plaintiffs lawyer in the U.S. to ever get at, and you're giving the plaintiffs lawyers a shot at discovery that they never would have had otherwise."

Galleon's Leader Goes Down On All Counts !

Great to see these convictions. And, remember,  the original charges involved  insider trading in 37 stocks, but the government winnowed it to 14 stocks to simplify trial.

Let's hope there are many more wiretaps, indictments, guilty pleas and convictions.  

From the WSJ:   NEW YORK--Raj Rajaratnam, a billionaire hedge-fund impresario who built his fortune in the relentless cultivation of corporate contacts, was convicted Wednesday on all 14 counts of securities fraud and conspiracy against him in the biggest insider-trading case ever, likely accelerating an unprecedented wave of prosecutions rocking Wall Street.

The verdict by the 12-member jury, following 12 days of deliberation, capped a blockbuster trial that began in early March and featured 45 wiretaps showing how the founder of Galleon Group trafficked in insider tips provided by a web of contacts at the top tier of American business.

Securities Suits Move Out of the US and in to a Dutch Court - Was Morrison a True Win ?

As previously covered here and here, litigants need to be careful about their strategic wishes and choices.  One wonders what the Morrison litigants are feeling now that securities litigation is ,moving ahead in  a Dutch court.  American Lawyer Daily has the full story by David Bario. Here are some key excerpts: 

"On Monday, a foundation formed under Dutch law and backed by the two plaintiffs firms filed suit in the Netherlands against Fortis, various bank officers and directors, and lead underwriter Merrill Lynch U.K. Holdings for allegedly misleading investors about Fortis's financial health in 2007 and 2008. The firms said in a press release that more than 140 institutional investors and 2,000 individual shareholders from Europe, Asia, and the U.S. have signed on with the foundation that filed the action, Stichting Investor Claims Against Fortis. "Shareholder losses are estimated in the tens of billions of euros," the firms said."

International Lawyers Commenting on Netherlands as Settlement Forum for Global Securities Claims Against Chinese Entities: Is this Global Forum Shopping ?

Having more or less won the so-called f-cubed securities cases to limit US jurisdiction on securities claims, defendants in securities claims now have to deal with the consequences of their "wins." One consequence is that they face  issues on where and how to obtain global settlements and/or purportedly valid settlement injunctions. Therefore, lawyers and jurisdictions are now dancing on where global settlements may be obtained.

On that subject, here is the link to a fairly detailed and useful three page paper on the possibility of obtaining judicial approval in the Netherlands of purportedly global securities claims. The paper notes the pendency of 16 US based securities claims against Chinese entities, and suggests the possibility of Netherlands as the settlement forum. The firm, De Brauw Blakstone Westbrook, lists office in Amsterdam, Beijing, London and New York. 

 Hat tip to Lexology for presenting the article in its daily article flow.

Sovereign Debt and Securities Fraud - A Wave Ahead ?

The Conglomerate includes this recent post picking up from from the SEC accusing New Jersey of securities fraud. Among other things, the post ask whether the US may soon see a wave of securities suits against sovereigns regarding their statements when selling debt.

Japanese Securities Law Damages for 2009 Exceeded the Damages Awarded in Japan for Securities Litigation for the Entire Prior Decade

Are you still wondering whether there is more litigation around the globe?  Either way, consider this post from D & O Diary regarding the tremendous increase in the damages awards for securities litigation in Japan. The post starts out with the following strong statement:

"The amount of damages awarded in 2009 Japanese securities cases exceeded "the aggregate amount of securities litigation damages determined by court decisions in Japan for the entire previous decade," according to a new study of Japanese securities litigation from NERA Economic Consulting. The report, dated August 2, 2010 and entitled "Trends in Japanese Securities Litigation: 2009 Update," and which can be found here, updates the NERA report released last year that surveyed Japanese securities litigation from 1998-2008."

 

Point - CounterPoint on Jurisdiction and Global Securities Litigation

Kevin LaCroix's blog, D & O Diary, includes informative recent posts that provide a point-counterpoint on plaintiff and defense views on the Supreme Court's recent Morrison uling on jurisdiction and global securities litigation.

Ratings Agencies Lose Motion to Dismiss in Subprime Litigation

Some argue the CDO financial fiasco years is the biggest mass tort in history. Towards that view, the  ratings agencies suffered a major loss on a motion to dismiss in a case before the well-known and well-regarded Judge Schira Scheindlin.

D & O Diary covers the opinion here, and includes links to the opinion and other articles. In short, the court  rejected a causation based argument that sought dismissal of the claims on the theory that that there were larger causes of the investor losses.  D & O also mentions and links to Judge Scheindlin's prior opinion rejecting a First Amendment defense to similar claims in a different case against ratings agencies. 

Would a Reasonable Gambler Want to Know Who Picked the Cards in the Deck ? The Goldman Sachs and Paulson Issues

The provocative question in the title of this post is a question posed by Erik Gerding in an insightful post at the Conglomerate. It's part of a collection of three good posts, with links to others. The Epicurean Dealmaker has been silent for a month; hopefully he or she will soon comment.

Detailed Review of 2009 US Securities Class Actions

Here is a detailed review of 2009 securities class action, courtesy of Kevin LaCroix at the D & O Diary. Amazing, but not suprising, to see how much litigation is generated by companies that do not make anything tangible and instead are essentially finance companies.

Non-Obvious Issues Arising from Corporate Problems and Subsequent Statements About the Scope/Impact of the Problem

Risk managers and lawyes have to think even more about divergent types of fallout from a corporate problems. The point is illustrated by this great post from Kevin LaCroix at D & O Diary. in the post, he airs various non-obvious liability, risk and D & O issues rising from Siemen's problems with corporate bribery. One of the non-obvious problems is a subsequent securities suit that arose from later statements by Siemens about the revenue impacts that would or would not follow from stopping the use of bribery.

Ratings Agencies Sued By Ohio Attorney General


It was just a matter of time. Seeking a civil remedy for the oft-criticized credit ratings issued by the various ratings agencies, The Ohio Attorney General retained private counsel and has filed suit "on behalf of the Ohio Public Employees Retirement System, the State Teachers Retirement System of Ohio, the Ohio Police & Fire Pension Fund, the School Employees Retirement System of Ohio and the Ohio Public Employees Deferred Compensation Program."

"Attorney General Cordray is drawing on the expertise of the law firms Entwistle & Cappucci LLP; Lieff Cabraser Heimann & Bernstein LLP; and Schottenstein Zox & Dunn Co., LPA to assist with the litigation."

The Lieff Cabraser firm is well-known for its class action work for plaintiffs. The Entwistle firm has significant experience in securities claims for pension funds and others. The Schottenstein firm is an Ohio commercial law firm. No doubt others will explore all the political connections.

The complaint is here. The claims are for negligent misrepresentation and violation of Ohio statutes. The suit is in federal court, so one assumes the first issues will be Iqbal/Twombly motions. I went through the complaint this morning and it seems to this observer more than adequate in laying out a compelling and logical claim backed by evidence garnered during Congressional investigations.

Big picture conclusions/thoughts/questions ? This suit is the latest example of how investigations by federal and state officials and agencies are increasingly used to generate evidence and facts to survive Iqbal/Twombly motions. Second, my personal belief is that there ultimately will be a flood of these lawsuits. with many filed by overseas entities. One question is whether and how these claims will be expanded to include "aiding and abetting" claims against law firms and other professionals. "Choice of law" questions also seem inevitable.

The Value of E-discovery and Tort Law - Trial Judge Says Internal Emails Probably Hang UBS on Claims of Fraud in Connection with Sale of CDOs

The WSJ Law blog includes this post yesterday that illustrates the virtues of e-discovery and the ever-expanding use of tort law in claims between businesses. The post, by Ashby Jones, reports on and includes a link to a Connecticut opinon in which the buyer of cdos sued the seller (UBS) for fradulent concealment of material facts regarding an impending downgrade of the rating for the cdos. The post includes a link to the trial judge's nicely written opinion granting a motion for prejudgment secuurity for about $ 35 million. The opinion lays the facts that caused the judge to grant the motion, and relies in material part on quotes from various internal e-mails at UBS in which the securities were internally disparaged at UBS - before sale - as "crap" and "vomit."

The entire post and opinion make for an easy read for those interested in the litigation arising out of the recent financial fiascoes. For those who are not inclined to scan it all, here's a key quote that illustrates why paying for e-discovery can be worth it and why tort claims are seeing increasing use in litigation between businesses:


"But the court finds there is more to this case than that. Through direct and circumstantial evidence, Pursuit has established probable cause to sustain the validity of a claim that the UBS defendants were in possession of material nonpublic information regarding imminent ratings downgrades on the Notes it sold to the Plaintiffs, information UBS withheld from the Plaintiffs.

The use of the term "triggerless," which was used by UBS to entice the Plaintiffs to purchase the same Notes they had earlier rejected, is akin to a representation by UBS that a gun being handed to the Plaintiffs is not loaded, when in fact UBS knew the gun was not only loaded, but was about to go off. The court takes UBS employees at their word when they referenced their Notes, these purported "investment grade" securities which they sold, as "crap" and "vomit", for UBS alone possessed the knowledge of what their product, their inventory, was truly worth. While UBS would argue that such descriptors lack a precisemeaning, the true meaning of these words and the true value of UBS's wares becameabundantly clear when the Plaintiffs' multi-million dollar investment was completely wiped out and liquidated by UBS shortly after the last of the Note purchases was consummated.

That is the difference between a risk that something might happen to change the value of an investment, which is both a fact of life and a risk shared by all parties to any securities transaction, and the undisclosed knowledge that something will happen. That type of nondisclosure, whether it is on the part of a seller or a buyer, can cross the line into actionable securities fraud, and the court finds probable cause to sustain a finding that in this instance, it did. "