Apple, The Big Apple, and “Pay to Play” Plaintiffs’ Lawyers

In a series of recent editorials, the New York Sun has raised some interesting and troubling questions about a New York City’s pension fund's involvement as lead plaintff in the Apple Computer options backdating securities litigation.

The first Sun editorial on the topic, entitled “New York Versus Apple "appeared on January 25, 2007 (here). The editorial noted the irony that the same day as the city’s Mayor, Michael Bloomberg, and its senior U.S. Senator, Charles Schumer, released a report (here) asserting among other things that meritless securities litigation was undercutting the competitiveness of the city’s financial markets, the New York City Employees’ Retirement System (NYCERS) was named as lead plaintiff in a class action lawsuit against Apple Computer and its executives and directors. The editorial observed that the city’s law firm in the lawsuit, Grant & Eisenhofer, includes on staff as Senior Counsel, Leslie Conason, whose firm website bio reports that prior to joining the law firm, she “was responsible for managing all securities lititgation for the City of New York, where she was in charge of securities litigation for the $100 billion in pension assets held by the workers and retirees of the City of New York."

The editorial also points out that a partner at the Grant & Eisenhofer law firm, Keith Fleischman, had made a $1,000 campaign contribution to the city’s Comptroller, William Thompson, Jr., in 2003, when Fleishman was at the Milberg Weiss firm. (As reported on the Comptroller's website, here, among Thompson's duties is the managment of the city's pension funds.) The editorial concludes by saying that:

The notion of a shareholder suit against Apple strikes us, in any event, as a stretch. Whatever shenanigans went on with Steve Jobs' stock options, the company's stock price is up 600% over the past two years, far outpacing the overall gains by the stock market or NYCERS. Any reasonable shareholder should be happy as a clam. New York's economy and streetscape have certainly benefited from the city's Apple Stores in SoHo and at the plaza of the GM building. If there's a bright spot, it's that one of the Apple directors named as a defendant is Albert Gore, Jr. By the time the vice president is done being deposed by the class action lawyers hired by the NYCERS board, he may be ready to line up with Messrs. Schumer and Bloomberg the next time they call for legal reform.

In a letter to the editor printed in the February 27, 2007 issue of the Sun (here), Thompson defended himself and the city’s process for selecting counsel. His letter explains that after a selection process that included interviews and reference checks, the city executed agreements with nine plaintiffs’ firms in mid-2006. His letter also points out that each of the city’s pension systems’ Board of Trustees makes the final determination as to whether or not to proceed with this type of litigation. Thompson’s letter also defended the decision to pursue the Apple litigation, and the city’s role in shareholder litigation generally.

In the same February 27, 2007 issue in which Thompson’s letter to the editor appeared, the Sun ran a second editorial, this one entitled “Thompson’s Trial Lawyers” (here). The paper found that six of the nine firms in New York City’s “securities litigation pool,” had made a total of $102,491 in donations to Mr. Thompson’s 2005 election campaign – an election in which Thompson “faced only token opposition” and in which he was “reelected with more than 90% of the vote.” Among other firms, the Kirby, McInerney & Squire firm is reported to have given $39, 975, and the Wolf Popper firm is reported to have given $36,256. Wikipedia notes that Thompson is a leading candidate to become the Mayor of New York in 2009 and has amassed a compaign fund of over $2 million.

In addition, the editorial reports that the head of the pensions division in the city’s Law Department said that the Grant & Eisenhofer “brought the idea of NYCERS filing a lead plaintiff application to the Law Division.” In other words, the editorial notes, the city didn’t discover it was injured and look for a lawyer, “a lawyer chased down a perfectly healthy client and brought the client the idea of a lawsuit, even though the Apple stock the city owned was up 600% in the past two years.” The editorial concluded that:

It's one thing… to take campaign money from trial lawyers. It's another thing entirely to turn around and allow those lawyers to use the good name of the city pension fund to pursue litigation with no redeeming value other than racking up huge fees for those same trial lawyers. The price Mr. Thompson pays for the more than $100,000 in campaign contributions he has taken from the class-action aecurity lawyers who represent the city is inevitability that the newspapers — and, someday, perhaps, voters — are going to question his judgment in pursuing this sort of litigation.

The Sun added a third editorial on February 28, 2007, entitled “Absentee Trustees” (here) in which the paper took a closer look at Thompson’s assertion that a pension fund Board of Trustees had supervised the decision to pursue securities litigation on behalf of the fund. The paper found that at the October 24, 2006 Board “regular meeting” at which the city’s Law Department claims that the vote to pursue litigation took place, “the so-called meeting of the ‘board' included not 11 trustees [the total number of trustees on the board], not 10 trustees, not nine trustees, not eight trustees, but exactly one. That’s right, just one actual trustee.” The editorial points out that the board may want to reconsider its processes; “after all, the directors of Apple Computer are being sued by NYCERS for allegedly failing to provide proper oversight.” The editorial concludes with the observation that “if things take an unfortunate turn for the New York City Employees’ Retirement System, it’s conceiveable that some enterprising class-action lawyer might look at them as a target. Apple stock appreciated 600% and it still got sued.”

Way back in the optimistic era of securities litigation reform, back when Chris Cox was still just a Congressman from Orange County, when Congress enacted the Private Securities Litigation Reform Act of 1995, there was a notion that institutional investors needed to become more involved in order to eliminate abusive lawyer-driven securities litigation. So Congress promulgated a lead plaintiff process, in which the “most adequate platiniff” would be selected based on which plaintiff showed the “largest financial interest.” Whatever Congress thought might result from this reform, it seems fairly likely that it did not envision institutional plaintiffs pursing lawsuits as a result of an unsupervised and campaign finance driven process, supplemented by a revolving door between the institutional investors and the plaintiffs’ firms. (As an aside, I also suspect that Congress did not envision institutional investor driven opt-out litigation either, about which I recently commented here.)

The Sun identifed the ironic propinquity of the Bloomberg/Schumer report’s release and NYCERS' selection as lead plaintiff in the Apple litigation. An irony the Sun missed is that the Paulson Committee Interim Report (here), which preceded the Bloomberg/Schumer report by only a few weeks and raised similar concerns about the adverse competitive effects of meritless securities litigation, specifically decried “pay to play” practices between institutional investors and the plaintiffs’ bar. The Paulson Committee Report asserted that:

When political contributions are made by lawyers to individuals in charge of a state or municipal pension fund, the attorneys should not be permitted to represent the fund as a lead plaintiff in a securities class action. Following the lead of the municipal bonds industry, the securities litigation regulations should be comprehensive and should cover any direct contributions as well as indirect contributions (made through “consultant” or other similar arrangements) … At a minimum, the SEC, as an amicus, should ask courts to require disclosure of all political contributions or fee-sharing arrangements between class counsel and a lead plaintiff (or controlling individuals within the lead plaintiff organization). This disclosure should occur prior to the court’s appointment of either counsel or plaintiff and should be followed by a similar disclosure at the fee award hearing. (Emphasis added)

The D & O Diary has a suggestion for Mayor Bloomberg. If he really thinks abusive securities lawsuits are undermining the competitiveness of his city’s financial markets, he should toss the report that he and Senator Schumer paid McKinsey to write and read the Paulson Committee’s Interim Report’s comments about “pay to play” practices. And then he should take a very hard look at practices in his city’s Law Department. The good news for Mayor Bloomberg is that he doesn't even need to await the SEC action the Paulson Committee’s Interim Report advocated; he can institute his own securites litigation reform without any fuss or bother or press conferences or grandstanding speeches or anthing like that. For reasons the D & O Diary has elaborated upon at length elsewhere (most recently here), this reform is unlikely to affect the relative competitiveness of the city's financial markets in the global marketplace, but it certainly would clean up some pretty unattractive looking circumstances and practices.

How to Find out Who is "Paying to Play": Readers who are interested to know more about plaintiffs’ lawyers campaign contributions (or those of anybody else, for that matter) will definitely want to spend some time on the website (here) of the Center for Responsive Politics, where campaign contributions are searchable by donor name. (Click on the “Who Gives” tab and select “Donor Lookup” from the dropdown menu.) For example, a search on the name William Lerach identifes 150 separate donations totaling $1,283,430 (including several donations to Hillary Clinton ) A search on the name Mel Weiss shows that Weiss made 120 donations totaling $699,102. Among other candidates, Weiss made a number of donations to Senator Schumer. Hmmm, that's kind of interesting... maybe after the law firm's indictment, Schumer felt he could...yep, that's probably it.

Isn't It Ironic, Don't You Think?: The Sun obviously has an eye for irony and an interest in securities fraud litigation. The Sun's outlook must be in its DNA, because its founding investors, according to Wikipedia (here), included none other than Conrad Black, who has been working for years on his own wing in the securities fraud litigation house of blues. You don't suppose that has anything to do with the paper's obvious and manifest hostility to securites lawsuits? Nahhh...

The D & O Diary wishes to acknowledge with grateful thanks the two alert readers who prefer anonimity and who provided links to the Sun editorials and to the Center for Responsive Politics website.