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  • Writer's pictureKirk Hartley

Bank of America as a Mass Tort Defendant – Lessons Related to Public Companies Seeking Mass Se

Public companies feel pressure through stock price, and mass tort litigation can put stock price under enormous pressure. Stock price pressures arise from ordinary investor concerns, and myriad other traders who could do not care about the company but seek to profit on the stock price uncertainty. Back in the day, these principles were most visible in massive chapter 11 filings by so-called "asbestos companies." Back in the day, hedge funds and others hired toxic tort lawyers to better understand the depth of the issues for certain companies (e.g Halliburton), and then they shorted and profited.

Today, some financial service companies have been accused of massive, global torts with enormous financial and human impacts. Bank of America is one target for massive claims, and its stock price has fallen sharply. DealBook previously reported on insolvency, as covered in this prior post which builds on Dealbook. Now, Bloomberg reports the bank has taken huge reserves for liabilities ($ 30 billion) and wants to cut a massive settlement to resolve most if not all issues. According to Bloomberg:

"Chief Executive Officer Brian T. Moynihan, seeking to reverse a 44 percent stock slide this year, has booked about $30 billion in settlements and writedowns to clean up mortgage liabilities at the biggest U.S. bank since the start of 2010. One of the largest legal matters still pending is the multi- state probe into whether firms servicing mortgages used bogus documents to justify foreclosures.

“They need to resolve this because it’s looming out there as an unknown liability,” said Brian Chappelle, a partner at mortgage-finance consultancy Potomac Partners LLC in Washington and former executive at the

Bank of America executives, concerned that a delay in resolving the case is hurting the firm’s stock, are open to a deal that would resolve most of it, even if some mortgage investigations continue, said one of the people. The bank has been pushing for liability releases for loan activities besides servicing, such as securitization and lending."

Lessons to be applied here? One lesson relates to conflicts of interest between claimants. Back in the day of massive asbestos settlements, the US Supreme Court rejected massive asbestos settlements because of divergent, conflicting interests of different claim holders, and a lack of separate, vociferous legal counsel representing the divergent interests. The seminal decision is Amchem, and the opinion highlighted conflicts between, for example, holders of the strongest claims and holders of the weakest claims. Also in conflict are claims held by current claimants (my loss has occurred now) and future claimants (I may have a loss in the future). On the latter, see this prior post and the great, linked article by Professor Todd Brown.

The same conflicts exist here, and the proceedings to date do not appear provide a cure for the conflicts. More process and procedure will be needed to obtain 100% peace. But the bank may find that price too high. It may accept 90% peace because it eliminates most of the danger that the risk might destroy the enterprise.

Another lesson relates to settling, if that’s to be done. The asbestos plaintiffs figured out the share price issue pretty well, and decided that one of their best options was to ask for less settlement cash and to instead take shares of stock in the settling company. By taking stock, they could participate in the upward share price "pop" expected to occur (and it usually did) after public announcement of the settlement. Also participating in the upside were insiders who bought stock based on knowledge of impending settlement deals. Application here? Settling states here may or may not demand – and obtain – a large amount of stock as a price of settlement.

More tomorrow.

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