Coyote Blog

The general utility of shareholder lawsuits has confused me for quite some time.  Way back in the blogging stone age of 2006 I wrote a guest post at Overlawyered that said in part:

But from a philosophical standpoint, shareholder suits have never made much sense to me. While I can understand the shareholders of the company suing a minority shareholder who might be enriching themselves disproportionately (e.g. Rigas family at Adelphia), suits by shareholders against the company they own seem… crazy.

Any successful verdict for shareholders against the company would effectively come out of the pockets of the company’s owners who are.. the shareholders. So in effect, shareholders are suing themselves, and, win or lose, they as a group end up with less than if the suit had never been started, since a good chunk of the payout goes to the lawyers. The only way these suits make financial sense (except to the lawyers, like Bill Lerach) is if only a small subset of the shareholders participate, and then these are just vehicles for transferring money from half the shareholders to the other half, or in other words from one wronged party that does not engage in litigation to another wronged party who is aggressively litigious. Is there really justice here?

OK, you could argue that many of these shareholders are not suing themselves, because they are past shareholders that dumped their stock at a loss. But given these facts, these suits are even less fair. If these suits are made by past shareholders who held stock (ie, were the owners) at the time certain wrongs were committed, they are in fact paid by current and future shareholders who may well have not even owned the company at the time of the abuses, and who may in fact be participating in cleaning the company up. So these litigants are in effect making the argument that because the company was run unethically when they owned it, they are going to sue the people who bought it from them and cleaned it up? Shouldn’t the payment be the other way around, with past owners paying current owners for the mess they left?

So I found this decision in a case at Sears refreshing:

A federal appeals court on Wednesday put the kibosh on a shareholder antitrust suit against the board members of Sears Holding Corp, finding that the suit only served to enrich the plaintiffs' lawyers.

The ruling from the Chicago-based U.S. Court of Appeals for the 7th Circuit marks the latest victory for Ted Frank, of the Center for Class Action Fairness, who argued that the suit was an abuse of the legal system and conferred no benefit on Sears shareholders at large. The 7th Circuit agreed.

"The only goal of this suit appears to be fees for the plaintiffs' lawyers," Judge Frank Easterbrook wrote for a unanimous three-judge panel.

Several law firms, including Vianale & Vianale, filed the proposed class action on behalf of two named investors in 2009. The derivative suit accused two Sears directors of holding positions on the boards of several competing companies, in violation of federal antitrust law.

Given the high cost of litigating an antitrust suit, Sears reached a settlement with the investor plaintiffs, agreeing to get rid of one of the directors and pay $925,000 to the investors' attorneys.

Frank, who specializes in challenging class action settlements, argued that the resolution was a raw deal for Sears shareholders, costing them legal fees and a director they had recently re-elected. The deal also would not prevent someone else from filing a copycat suit, given that one of the two targeted directors would remain on the Sears board. What's more, the problem of interlocking boards is usually resolved when the Department of Justice or the Federal Trade Commission asks a company to fix the violation.

Frank, himself a Sears shareholder, asked to intervene in the case to block the settlement, but the Illinois district court refused, finding that the plaintiff investors adequately represented the interests of Frank and the other shareholders.

On appeal, the 7th Circuit panel reached the opposite conclusion, finding the interests to be "entirely incompatible." The panel sent the case back to the district court, with instructions to allow Frank to intervene and to rule in favor of the Sears defendants.

"The suit serves no goal other than to move money from the corporate treasury to the attorneys' coffers, while depriving Sears of directors whom its investors freely elected," Easterbrook wrote.

From Overlawyered today:

"A new study in the Financial Analysts Journal casts serious doubt on the premise [of litigation social efficiency], at least when it comes to shareholder class actions. In most cases, the authors found, the litigation mainly serves to punish shareholders who have already suffered from a downturn in their stock. Only suits targeting illegal insider trading, and to a lesser extent, accounting fraud were associated with subsequent higher long-term returns."

Way back in early 2006 (have I been blogging so long?) I was guest blogging at Overlawyered and I wrote this:

But from a philosophical standpoint, shareholder suits have never made much sense to me. While I can understand the shareholders of the company suing a minority shareholder who might be enriching themselves disproportionately (e.g. Rigas family at Adelphia), suits by shareholders against the company they own seem"¦ crazy.

Any successful verdict for shareholders against the company would effectively come out of the pockets of the company's owners who are.. the shareholders. So in effect, shareholders are suing themselves, and, win or lose, they as a group end up with less than if the suit had never been started, since a good chunk of the payout goes to the lawyers. The only way these suits make financial sense (except to the lawyers, like Bill Lerach) is if only a small subset of the shareholders participate, and then these are just vehicles for transferring money from half the shareholders to the other half, or in other words from one wronged party that does not engage in litigation to another wronged party who is aggressively litigious. Is there really justice here?

OK, you could argue that many of these shareholders are not suing themselves, because they are past shareholders that dumped their stock at a loss. But given these facts, these suits are even less fair. If these suits are made by past shareholders who held stock (ie, were the owners) at the time certain wrongs were committed, they are in fact paid by current and future shareholders who may well have not even owned the company at the time of the abuses, and who may in fact be participating in cleaning the company up. So these litigants are in effect making the argument that because the company was run unethically when they owned it, they are going to sue the people who bought it from them and cleaned it up? Shouldn't the payment be the other way around, with past owners paying current owners for the mess they left?

I understand that theoretically they might have an incentive improvement from the threat of these suits that improves corporate governance.  But this is mitigated by the fact that most corporations consider these suits to be random landmines without merit, to be avoided if possible, to be settled if necessary, but that have little bearing on the underlying governance of the company.

In the earlier days of this blog, I used to post links to a lot of insane lawsuits.  The lawsuits just keep coming, but I have lost the energy to keep posting such stupidity.  And besides, Overlawyered does such a good job and seems to have infinite patience. 

But it was worth noting a silly shareholder suit that the media actually seems to have sniffed out for what it is:  Pure garbage.  For those who are not aware, there are a group of law firms who immediately file suit against any company whose stock drops by more than a few percent.  Bill Lerach, soon to be taking up residence in jail, used to keep a whole bullpen of folks on a sort of retainer to hold shares in numerous companies, so he instantly had someone close at hand who could file suit when any stock drops.  And since stocks go up and down, often in ways that the company itself has no control over, this leads to a lot of lawsuits.

Recently, the maker of Crocs sandles apparently had an IPO, had its stock price shoot up, and then had its stock price fall back when the company could not sustain its previous torrid growth pace.  Al Lewis of the Denver Post takes it from there:  (HT Overlawyered, of course)

Anybody who purchased stock in
Niwot-based Crocs Inc. between July 27 and Oct. 31 should not join the
class-action shareholders lawsuit that was recently filed against the
company and its stock-dumping executives.

Instead, they should look themselves in the mirror and admit two things:

      

I look ridiculous in these plastic shoes.

      

Anybody
who would pay an average of more than $60 a share for a company that
makes ugly plastic shoes deserves to take a hit in the stock market.

He continues:

Crocs and its officers also allegedly
misrepresented or failed to disclose their distribution problems in
Europe and their rising inventory levels, the lawsuit alleges. They
also failed to disclose that sales of their hole-riddled plastic clogs
were suddenly becoming more of a seasonal item. Imagine that! Sandals
seasonal? Who knew?

By the way, if you really want your head to explode, take a minute a think about shareholder lawsuits.  A group of shareholders are suing the company for a fall in the stock price.  Who do you think pays?  Why, current shareholders!  Though I do not accept the "logic" of these suits, if one were to accept their logic, then the most guilty party is the stockholder who sold the plaintiffs their stock just before the drop.  But these folks are exactly who will NOT owe any money on the suit.  They are no longer owners.  The people who will pay will be the owners of the stock at whatever time the suit settles, likely many people who bought in after the plaintiffs did.  The only real winner when the shareholders pay themselves such a verdict are the lawyers, who rake off 30%.  More on this bizarre situation here.

Update:  I will have to think about this more, but it kind of reminds me of a prisoners dilemma game in which the prosecutor gets a monetary bonus that increases with longer prison terms.

I have always thought the logic of shareholder law suits were crazy to start with, and even crazier given that shareholder suits over loss of stock value tend to result in ... declining stock value.

I have never been able to justify most lawsuits by shareholders
against companies in which they own shares.  Any successful verdict
would effectively come out of the pockets of the company's owners who
are.. the shareholders.  So in effect, shareholders are suing
themselves, and, win or lose, they as a group end up with less than if
the suit had never been started, since a good chunk of the payout goes
to the lawyers.  The only way these suits make financial sense (except
to the lawyers, like Bill Lerach) is if only a small subset of the
shareholders participate, and then these are just vehicles for
transferring money from half the shareholders to the other half, or in
other words from one wronged party that does not engage in litigation
to another wronged party who are aggressively litigious.  Is there
really justice here?

OK, you could argue that many of these shareholders are not suing
themselves, because they are past shareholders that dumped their stock
at a loss.  But given these facts, these suits are even less fair.  If
these suits are often made by past shareholders who held stock at the
time certain wrongs were committed, they are paid by current and future
shareholders, who may well have not even owned the company at the time
of the abuses, and may in fact be participating in cleaning the company
up.  So their argument is that because the company was run unethically
when I owned it, I am going to sue the people who bought it from me and
cleaned it up for my damages?  Though it never happens, the more fair
approach would be for current shareholders to sue past shareholders for
the mess they left.

Tom Kirkendall quotes a related notion from the Economist:

This suggests to The Economist the need for a new Apple rule
to guide prosecutors"”at least in cases, such as backdating, where the
main supposed victim is a company's shareholders. Our rule: if a
criminal prosecution is likely to hurt a company's share price, then
don't prosecute.

Are we serious? Well, we think it's worth a discussion . . .
Cost-benefit analysis is largely absent from America's approach to
regulating business wrongdoing, not only in criminal prosecutions, and
that is probably one of the main reasons why America's capital markets
are indeed losing their competitive edge. At the very least,
encouraging the Department of Justice and the Securities and Exchange
Commission to employ a few less lawyers and a few more economists would
be a step in the right direction.

A few weeks ago I wrote about the changing relationship between attorney and client:

It used to be that clients would suffer some sort of injury and seek
redress in the courts.  To do so, they would hire an attorney to help
them.  The attorney was the hired help, compensated either hourly or
via a percentage of any awards.

Today, the situation is often reversed.  It is the attorney who is
identifying lawsuit targets for class actions and shareholder suits,
and then seeking out clients who can maximize his chances of success.
Clients, who typically make orders of magnitude less than the attorney
in class actions (think 50-cent coupons and $8 million attorney fees)
are selected because they are sympathetic, or give access to a
particularly plaintiff-attractive jurisdiction, or, in cases such as
ADA suits in California, because they have effectively become partners
with the attorney in serial torts.

At that time, the issue was Bill Lerach suing his clients for dropping him as attorney (Because, after all, it was really his lawsuit and not theirs).  This time, the issue is in a class action against Microsoft (emphasis added, via Overlawyered)

Judge Scott Rosenberg ruled Friday that Microsoft attorneys could
not ask the named plaintiffs about their relationship with attorney
Roxanne Conlin. The company's lawyers wanted to question the
plaintiffs, arguing that Conlin had referred to them during jury
selection as "just regular people who bought software" and who
volunteered to step forward to sue Microsoft.

The lawsuit was brought by Joe Comes, a Des Moines businessman who
owns a chain of pizza restaurants, and Patricia Anne Larsen, a retiree
from northwest Iowa, and two business _ Riley Paint Inc. of Burlington
and Skeffington's Formal Wear of Iowa Inc. of Des Moines.

Microsoft attorney David Tulchin said Larsen has been a friend of
Conlin's since 1982, when Larsen held fundraisers for Conlin's failed
run for governor. In 1999, Conlin represented Larsen in an employment
discrimination case against Larsen's former employer, Eaton Corp.

Tulchin said Comes has been Conlin's son's best friend since high school.

Microsoft attorneys claimed Conlin recruited these friends to act as
plaintiffs in the case so she could sue the company and that her
comments during jury selection opened the door for Microsoft to
challenge the plaintiffs' motivation in filing the lawsuit.

Who would even imagine such a thing?  In this class action, as in many, the class members will probably get coupons while Conlin makes millions.  Or, as Microsoft observes:

Tulchin claimed that Conlin and her co-counsel, Richard
Hagstrom of Minneapolis, have the most to gain in the lawsuit

Attorneys like Conlin know they are vulnerable on this

Conlin said Microsoft wants the jury to believe that class-action
lawsuits are attorney-driven cases brought for money when in reality
they are a way for individuals with small claims to come together to
take on large, powerful companies.

"Businesses like Microsoft have poisoned the public view of these
forms for seeking redress by spending billions of dollars to spread
propaganda. Now they seek to collect on their investment by improperly
suggesting to the jury that the plaintiffs are not real plaintiffs,"
she said.

You think?

Overlawyered today provides a link to this article in Roger Parloff's blog at Fortune

The nation's leading class-action lawyer, Bill Lerach, is currently in
an ugly scrape in federal court in Dallas, where the sole lead
plaintiff in a high-profile shareholder suit against Halliburton (HAL)
no longer wants Lerach or his firm to act as its co-lead counsel. (I've
posted about it before here and here.)
To recap, the fund has said that it is concerned about all the
distractions and the sleaze factor now surrounding Lerach and his prior
firm, Milberg Weiss Bershad Hynes & Lerach (which Lerach co-ran)...

The squeamish plaintiff, the Archdiocese of Milwaukee
Supporting Fund, has asked that Lerach Coughlin be replaced by David
Boies and his firm, Boies Schiller & Flexner, which firm has
indicated that it is ready, willing, and able to assume the role.

Needless to say, Lerach is fighting the uppity plaintiff to keep control of the case.

Parloff goes on to question some of Lerach's statements in the case.  However, I want to make a different point.  This points out fairly clearly that Lerach and other top litigators have adopted a whole new theory of litigation and of the relationship between lawyer and client.

It used to be that clients would suffer some sort of injury and seek redress in the courts.  To do so, they would hire an attorney to help them.  The attorney was the hired help, compensated either hourly or via a percentage of any awards.

Today, the situation is often reversed.  It is the attorney who is identifying lawsuit targets for class actions and shareholder suits, and then seeking out clients who can maximize his chances of success.  Clients, who typically make orders of magnitude less than the attorney in class actions (think 50-cent coupons and $8 million attorney fees) are selected because they are sympathetic, or give access to a particularly plaintiff-attractive jurisdiction, or, in cases such as ADA suits in California, because they have effectively become partners with the attorney in serial torts.

So if you wonder why Lerach is suing his client for not using his services, and if that makes you wonder who is working for whom, now you know.

Update: By the way, this reversal of the relationship between attorney and client is one of the recurring themes in my novel BMOC.

I posted on shareholder suits over at Overlawyered.  A reader sent me this great article from 2000 in Fortune on Bill Lerach, the kind of shareholder suits.  These thoughts echo my own (or, since I guess this was written long before my post, my thoughts echoes these):

Stanford law professor Joseph Grundfest, a former
SEC commissioner, goes so far as to describe the current system governing
securities fraud as "nuts." As he sees it, class-action settlements amount
to nothing more than an unproductive "transfer payment" from current shareholders
to past shareholders--with big contingency fees skimmed off the top. "The
plaintiffs lawyers are getting a cut of the money that flows from our left
pocket to our right pocket," he says. Even in those cases involving genuine
wrongdoing, he adds, the individual perpetrators rarely pay anything out
of their own pockets, thanks to insurance and indemnification policies.
Nor do the shareholders get much--generally no more than 15% of their losses,
studies show. "Fraud is wrong," says Grundfest. "It has to be punished.
But what we have here is a shell game."

Read the whole article.  In many of the anecdotes, Lerach seems to be channeling Tony Soprano.