Holiday break

Things are slow in securities litigation land this time of year, so I'll take the opportunity to wish all of my readers great health and happiness in the New Year!

Checkmate for Check Point

Today, Check Point Software Technologies Ltd. (NASDAQ: CHKP) announced that it has reached an agreement-in-principle to settle the securities class action lawsuits pending against the company and certain of it's officers and directors for $13 million.

According to the release, the entire settlement will be paid by Check Point's insurance carrier.

The litigation is pending in the United States District Court for the Southern District of New York before Judge Richard M. Berman.

Jay Stegmann is the lead plaintiff in the Check Point litigation, and Schiffrin & Barroway LLP and Milberg Weiss Bershad & Schulman LLP are lead and liaison counsel, respectively.

Philadelphia Stock Exchange Sale Challenged

According to a press release issued last week, Chancellor William B. Chandler III of the Delaware Court of Chancery has denied the defendants' motions to dismiss in a class action brought on behalf of shareholders of the Philadelphia Stock Exchange to challenge a proposed sale of 90% of the equity of the stock exchange from the Class A shareholders to a group of Wall Street firms and members of the Exchange's Board of Governors.

A copy of Chancellor Chandler's opinion is available here and a copy of the class action complaint can be found here.

The Wall Street firms named in the complaint are UBS Securities, LLC, Morgan Stanley & Co., Inc., Citigroup Financial Products, Inc., Credit Suisse First Boston, Citadel Derivatives Group, LLC, and Merrill Lynch, Pierce Fenner & Smith.

Berger & Montague, P.C. and Rosenthal, Monhait & Goddess, P.A. are counsel for the plaintiff.

Daily Trivia: The Philadelphia Stock Exchange was the first securities exchange in the United States. The exchange was officially established in 1790, and initially mainly government obligations were traded. Among the securities listed in the early days of the Exchange were shares of The Philadelphia and Lancaster Turnpike Company, the first turnpike in the United States. The route that formed the turnpike is now known as Route 30, or Lancaster Avenue.

Yet Another Options Backdating Study

A new study by Harvard Law School's Program on Corporate Governance released this week suggests that options grants to outside directors "have been favorably timed to an extent that cannot be explained by mere luck."

The study, entitled Lucky Directors, was written by Prof. Lucian Bebchuk (Harvard Law School), Prof. Yaniv Grinsten (Cornell University - Samuel Curtis Johnson Graduate School of Management) and Prof. Urs Peyer (INSEAD).

The authors found that, out of all director options grant events during 1996-2005, 9% were so called "lucky grant events" - falling on days with a stock price equal to a monthly low.

The study estimates that about 800 "lucky grant events" were timed opportunistically, and that approximately 460 different companies and more than 1400 outside directors were associated with grant events involving such timing.

Additionally, the study found that 3.8% of all options grant events were "super-lucky," defined as taking place at the lowest price of a calendar quarter.

Daily Trivia: Harvard's Program on Corporate Governance is part of the John M. Olin Center for Law, Economics, and Business. The Center was founded in 1985, but in 2003 received a $10 million grant from the John M. Olin Foundation. The gift was the largest foundation grant in the history of Harvard's Law School. The foundation was started by John Merrill Olin, the late founder of Olin Corporation (NYSE: OLN), a major manufacturer of copper alloys, ammunition, and chlorine and sodium hydroxide.

Help Wanted - Apply by Lead Plaintiff Motion

The current lead plaintiffs in the Cyberonics, Inc. securities litigation are looking for some help.

According to a press release issued on Monday, the lead plaintiff process in the case has been reopened, nearly 15 months after the original lead plaintiffs were appointed.

Curiously, the announcement comes after a prior consolidated amended complaint was dismissed, and four months after the first amended complaint was filed. A copy of the first amended complaint is available from Stanford, here.

The new complaint substantially expands the class period and adds allegations related to options backdating.

The Cyberonics litigation is pending in the United States District Court Southern District Of Texas before Judge Gray H. Miller.

EFCAT, Inc., John E. and Cecilia Catogas, Blanca Rodriguez and Mohamed Bakry are the current lead plaintiffs in the Cyberonics litigation and Finkelstein & Krinsk LLP and Scott + Scott LLC are currently serving as co-lead counsel.

Daily Trivia: Cyberonic's only product is an implantable medical device for the long-term treatment of epilepsy, depression, and other chronic disorders using vagus nerve stimulation therapy.

The vagus nerve is the only nerve that starts in the brainstem and extends down below the head, to the abdomen. It is also known as the "pneumogastric nerve since it innervates both the lungs and the stomach." The name is derived from the Latin word vagus, literally meaning "wandering."

Securities Class Action Filed Down Under

An article in The West Australian today notes that shareholders of Multiplex Group (ASX: MXG) have filed a class action against the Australian property developer in The Federal Court of Australia in Melbourne.

According to the article, the litigation stems from the alleged failure of Multiplex to:

keep the market properly informed about problems it was having with the [redevelopment of London's Wembley Stadium] and the likely impact those problems would have on the company's profits.

Specifically, the complaint alleges:

Multiplex was behind schedule and had incurred cost overruns by August 2004, but did not announce the project would be making a loss until May 2005.

The complaint was filed on behalf of 45 investors by the Australian firm Maurice Blackburn Cashman Lawyers. The firm has a specific page devoted to the litigation, here.

Daily Trivia: For non-soccer fans, Wembley Stadium is perhaps best remembered as one of the two concert sites for Live Aid, the 1985 concert that sought to raise awareness of famine in Africa. According to this VH1 article, "an estimated 1.4 billion of the planet's five billion" tuned in to the concert that day, and more stunning still, "95 percent of the world's television sets were tuned in to" the concert at one point.

Vigorous Defense, With a Twist

Today, AtriCure, Inc. (NASDAQ: ATRC) issued a press release regarding the securities class action lawsuits that were recently filed in the United States District Court for the Southern District of New York against the company and certain of its officers that adds yet another wrinkle to the Securities Litigation Universe of [Press] Release Permutations (a/k/a SLURP).

The SLURP collection was previously discussed here and here.

In the release, David Drachman, the president and CEO of the West Chester, Ohio based medical device company stated:

We believe that these allegations are without merit and we intend to vigorously defend the Company. As a public company, the Company has maintained insurance coverage to address such matters. Management is and will remain focused on the growth and development of our Company.

Mr. Drachman has the party line down with his "vigorous defense" proclamation, but it is a bit unusual to publicly discuss reliance on insurance coverage to pay for costs associated with a securities class action when there has been no adjudication of the claims, and thus the insurer may still deny coverage.

NASDAQ (where AtriCure is listed) has "A Guide for North American Companies Listing on the U.S. Securities Markets," which explains many of the issues surrounding public offerings and D&O policies. Latham & Watkins LLP also has an excellent Client Alert discussing D&O insurance issues in the context of options-backdating cases.

So this new version of the vigorous defense press release will be called the, "We didn't do it, we're going to come out swinging, and, hey, somebody else is going to pay for it" press release.

I wonder if The D&O Diary has anything to say about this?

Daily Trivia: Latham's web page for the firm's "Securities Litigation and Professional Liability" practice group indicates that the attorneys with the firm have handled "more than 200 securities class actions" in the past decade. According to Stanford's Securities Class Action Clearinghouse, that is about 8% of all securities class actions filed since the passage of the PSLRA.

Preemptive Vigorous Defense or Buried Notice?

Today, Technical Olympic USA, Inc. (NYSE: TOA) announced that the securities class action complaint filed against the company and certain executive officers of the company:

is without merit and that it intends to defend the lawsuit vigorously.

The complaint was filed in the United States District Court for the Southern District of Florida.

Here's the rub - a quick search of Yahoo! Finance, MarketWatch, TheStreet.com, and The Motley Fool, reveals that no press release has yet been issued by the firm(s) that filed the complaint.

It appears that we have another "preemptive vigorous defense" press release.

Or we may have a case of so-called "buried notice," as previously discussed by Bruce Carton over at Securities Litigation Watch, here.

UPDATE: Lerach Coughlin Stoia Geller Rudman & Robbins LLP issued a PSLRA notice today, available here.

Daily Trivia: Konstantinos A. Stengos, Technical Olympic's chairman of the board and the founder of the Technical Olympic Group of Companies is among the "50 Wealthiest Greeks in America." Among his diverse holdings are the Greek Porto Carras vineyards.

Company Bites Auditor

Ok, it's not quite man bites dog, but today Fannie Mae (NYSE: FNM) announced that it has filed suit against KPMG LLP, the company's former outside auditor, for negligence and breach of contract in the Superior Court of the District of Columbia.

The 17-count complaint seeks:

[c]ompensatory damages to be determined at trial in an amount not less than $2,000,000,000 (Two Billion Dollars)

A copy of the complaint is available from Fannie Mae, here.

Articles on the litigation can be found here (The Wall Street Journal - sub. req'd), here (MarketWatch.com), and here (Reuters).

The Journal article quotes a KPMG spokesman, who indicated that the accounting firm "is likely to file a countersuit," and that KPMG "will remove this suit to [the United States District Court for the District of Columbia], where we intend to pursue our own claims."

Disclosure: The author and his law firm are counsel for certain plaintiffs in the currently pending Fannie Mae derivative litigation.

Securities Litigation Settlements May Be Tax-Deductible

An article today from WebCPA notes that the Internal Revenue Service has agreed, in a letter ruling, that a publicly-traded acquiring corporation can deduct the amount it paid to settle class action securities litigation against the target corporation that was triggered by misstatements in the target corporation’s reported earnings.

Generally, as noted in the letter,

amounts paid in settlement of lawsuits are currently deductible if the acts which gave rise to the litigation were performed in the ordinary conduct of the taxpayer's business. See, e.g., Federation Bank & Trust Co. v. Commissioner, 27 T.C. 960 (1957).

But, if the litigation arises from a capital transaction,

then the settlement costs and legal fees associated with such litigation are characterized as acquisition costs and must be capitalized under § 263(a). See Woodward v. Commissioner, 397 U.S. 572, 575 (1970) (holding litigation costs incurred by corporation in appraisal proceedings mandated by state law to determine the value of dissenter’s shares were part of the cost of acquiring those shares); United States v. Hilton Hotels Corp., 397 U.S. 580, 583 (1970); (similarly, deciding that litigation costs incurred in appraisal action to determine fair purchase price were costs to acquire property); Berry Petroleum Co. v. Commissioner, 143 F.3d 442 (9th Cir. 1998)(concluding that legal expenses to defend class action lawsuit alleging breach of fiduciary duty in accomplishing merger were nondeductible acquisition costs).

Certain business expenses are not converted into capital expenditures even though they have some connection to a capital transaction. In determining whether litigation costs are deductible expenses or capital expenditures, the courts and the IRS have looked to the "origin of the claim" test.

The acquiring corporation:

claimed that the settlement costs were deductible as ordinary and necessary business expenses because the complaints were the product of an ongoing dispute between target's shareholders and the taxpayer, as controlling shareholder of target, for withholding dividends, issuing fraudulent and incomplete financial statements, and artificially depressing its stock price.

As a result, the acquiring corporation argued these claims were related to ordinary course business activities, and did not originate in the merger of the two companies or any other capital acquisition.

The IRS agreed, holding that:

Under these circumstances, we believe that the origin of these claims was in the ordinary conduct of [the target company's] trade or business.

The ruling, as with most letter rulings by the IRS, is directed only to the taxpayer requesting it and is not precedential in other cases.

Daily Trivia: The origin of the IRS can be traced back to the Civil War, when President Lincoln and Congress created the position of commissioner of Internal Revenue and enacted an income tax to pay war expenses. In 1872, the income tax was repealed, but in 1894 Congress revived the income tax in 1894, only to have the Supreme Court rule it unconstitutional the following year. The country remained without a federal income tax until 1913, when Wyoming ratified the 16th Amendment, which gave Congress the authority to enact an income tax.

Options Backdating, Eh?

According to a recent Chicago Tribune article, a forthcoming study by economics professors at the University of Manitoba suggests that options backdating could might be as much of an issue for Canadian companies as it has turned out to be for US companies.

The study, Remuneration and Incentives of Managers: Executive Stock Options and Backdating in Canada, examined stock options granted to executive by 66 of Canada's largest publicly traded companies from June 2003 through October 2006.

The authors found trading patterns that may be consistent with options backdating and that many options grants were not being reported as quickly as required.

A preliminary draft of the study notes:

While it is impossible to determine unequivocally that companies are engaging in backdating. . .the aggregate evidence certainly supports such a story.

The study found that unscheduled grants had a higher rate than scheduled grants of abnormally high returns.

The authors also found that reporting requirements regarding stock options were not being properly followed. Toronto Stock Exchange rules (See Toronto Stock Exchange Company Manual Sec. 613(h)(i), here) require that:

the exercise price for any stock options granted under a security based compensation arrangement or otherwise must not be lower than the market price of the securities at the time the option is granted.

In other words, options must not be granted 'in the money.'

Moreover, Canadian securities regulations require that a company report all stock-option grants within 10 days of the grant. As a result of this long reporting period, companies may be setting the exercise price at the lowest point during a particular time period, giving the option recipients an immediate boost in the options' value.

The study analyzed more than 5,600 instances of stock-options granting. It found that 17% of reports for grants were filed after the 10-day window had expired, with 9% of those reports filed more than 50 days after the grant date.

The article was authored by Prof. Ryan A. Compton, Jonathon N. Giller, and Prof. Lindsay M. Tedds.

The D&O Diary also has a post on the study, here.

Daily Trivia: Of the 66 Canadian companies discussed in the study eight have been the subject of federal securities class actions since the passage of the PSLRA.

They are:

1. ATI Technologies Inc. (twice)
2. Barrick Gold Corp.
3. Biovail Corp.
4. Bombardier Inc.
5. Cognos Inc.
6. Inco Limited
7. Kinross Gold Corp.
8. Nortel Networks Corp. (twice)
9. Cott Corp. (pre-PSLRA)

Cigna Settles Securities Class Actions

According to an article in the Philadelphia Inquirer, CIGNA Corp. (NYSE: CI) has settled the consolidated securities class action pending against the company and certain of its officers for $93 million.

The Pennsylvania State Employees' Retirement System is the lead plaintiff and Berger & Montague, P.C. and Bernstein Liebhard & Lifshitz LLP are co-lead counsel in the CIGNA litigation.

Both the company (here) and the lead plaintiff (here) issued press releases regarding the settlement. The release issued by the lead plaintiff notes that the settlement:

is in the top 8% of all securities class action settlements from 1996 through 2004.

And that the settlement:

is one of the 60 largest securities class action settlements ever achieved.

The case is pending in the United States District Court for the Eastern District of Pennsylvania before Judge Michael M. Baylson.

The Legal Intelligencer (via Law.com) has an article regarding an earlier ruling by Judge Baylson regarding the identification of confidential informants in securities fraud litigation, an increasingly common practice. In that decision, Judge Baylson ruled that:

Requiring specific identification of confidential sources from among the universe of individuals with relevant knowledge in a securities fraud case would chill informants from providing critical information which may end up being in the public eye.

Judge Baylson concluded that:

fairness compels only that if an individual who is a confidential informant does have relevant information, that person's identity should be disclosed as a discoverable matter, but without disclosing that he or she is a confidential informant.

Daily Trivia: Judge Baylson is an adjunct professor at the University of Pennsylvania's Law School. For several years earlier in his career, Judge Baylson served as an assistant district attorney under then Philadelphia District Attorney (now Senator) Arlen Specter.

AOL Time Warner Opt-Out Cases Starting to Settle

An article in today's New York Sun details the success garnered by one of the so called "opt-out" cases filed by institutional investors in the AOL Time Warner litigation.

The litigation was filed by the Alaska Department of Revenue, Alaska State Pension Investment Board, and the Alaska Permanent Fund Corporation on behalf of various Alaska state investment funds in the Superior Court of the State of Alaska - First Judicial District (Juneau).

According to the article:

Time Warner agreed this week to pay Alaska $50 million to compensate it for investment losses alleged to total about $60 million...That result, amounting to about 83 cents a dollar allegedly lost, appears to be far superior to the payout in the nationwide settlement, which has not been calculated officially but is likely to be a few cents on the dollar, according to lawyers involved in the litigation.

According to Richard M. Heimann, one of the attorneys for the Alaska pension funds:

Our settlement is far and away more than what we would have received - 50 times more than what we would have received if we had remained in the class.

A Reuters (via Forbes) article from the day the complaint was filed placed the losses of the Alaska pension funds at $70 million, but that still works out to 71 cents on the dollar.

The Alaska pension funds are represented by Lieff Cabraser Heimann & Bernstein, LLP and the Alaska Attorney General's office, and a copy of Alaska's complaint can be found here.

The article also notes that more than 100 institutional investors have opted out of the AOL Time Warner settlement and signed up with Lerach Coughlin Stoia Geller Rudman & Robbins LLP to pursue individual or group actions.

When "[a]sked if his clients will fare better than those who joined the national settlement, Mr. Lerach said, 'There's no question we're getting tons more dollars.'"

The Lerach firm has information on their website regarding a wave of opt-out cases they filed back in February 2006, here, including a list of plaintiffs (here) and a recording of Bill Lerach's conference call announcing the litigation (here).

The pension fund covered by the Alaska settlement include:

Alaska Department of Revenue funds:

1. The Constitutional Budget Reserve Fund;
2. The Public School Trust Fund;
3. The Power Cost Equalization Endowment Fund:
4. The Exxon Valdez Oil Spill Investment Fund;
5. The Retiree Health Insurance Fund - Major Medical;
6. The Retiree Health Insurance Fund - Longterm Care;
7. The University of Alaska, Investment Trust Fund; and
8. The Alaska Children’s Trust Fund.
   

Alaska State Pension Investment Board funds:

1. The Public Employees' Retirement System;
2. The Teachers' Retirement System;
3. The Judicial Retirement System;
4. The National Guard/Naval Militia Retirement Systems;
5. The Alaska Supplemental Annuity Plan; and
   
6. The Alaska Deferred Compensation Plan (employee directed accounts).
   

Alaska Permanent Fund Corporation funds:

1. The Alaska Permanent Fund; and
   
2. The Alaska Mental Health Trust Fund.
   

Daily Trivia: The Exxon Valdez Oil Spill Trustee Council, the organization tasked with the efficient restoration of the environment injured by the Exxon Valdez oil spill, manages the civil settlements paid by Exxon to the state and federal governments. According to the Council's investment policies, for the first 8 years, the Council was only allowed to invest in United States Treasury securities. But with the passage of Public Law 106-113 in 1999, the Council was permitted to invest in other assets, but:

such outside investments are limited to income-producing asset classes, including debt obligations, equity securities, and other instruments or securities that have been determined by unanimous vote of the Council to have a high degree of reliability and security.

That is a seemingly tough standard that nevertheless would not have prevented or prohibited many asset managers from investing in AOL, Enron, WorldCom, Fannie Mae, AIG, or other high-flying members of the S&P 500 that have suffered through scandals in the recent past.

Four Days.

That's how long it took for Schoengold Sporn Laitman & Lometti, P.C. to announce that the firm had filed a securities class action lawsuit against Pfizer Inc. (NYSE: PFE) stemming from the company's December 2, 2006 announcement that they were suspending clinical trials of torcetrapib.

The question was posed on December 4, 2006 by the WSJ Law Blog, here.

The complaint was filed on behalf of the Uniformed Sanitationmen's Association Local 831 Pension Fund in the United States District Court for the Southern District of New York.

Torcetrapib is a CETP inhibitor, which work by blocking an enzyme that transforms HDL (the so-called good cholesterol) into LDL (the bad cholesterol). Pfizer had intended to sell Lipitor (an LDL lowering drug) in combination with torcetrapib.

According to the law firm's press release, in a clinical trial of torcetrapib involving 15,000 patients:

82 patients died taking torcetrapib/Lipitor combination as compared to only 51 patients taking Lipitor alone, and patients taking torcetrapib showed an increase in angina, congestive heart failure and procedures to clear clogged arteries.

According to an AP article, other drugmakers, including Roche Holding AG and Merck & Co., are reportedly developing CETP inhibitors.

Daily Trivia: The Schoengold firm has quite a diverse list of clients, ranging from the Association of Theatrical Press Agents & Managers Pension and Welfare Funds, to the Brotherhood of Railroad Signalmen - Local 56 Health & Welfare Fund, to the Soft Drink and Brewery Workers Union Local 812 Retirement Fund.

According to a history of ATPAM, Milton Weintraub the late secretary-treasurer of the union "developed the first union pension and welfare funds."

Second Circuit Reverses Class Certification in IPO Cases

According to a New York Times article (reg. req'd), the United States Court of Appeals for the Second Circuit reversed Judge Shira A. Scheindlin's October 13, 2004 decision to certify the class in six "focus cases" out of the more than 300 consolidated and coordinated class actions pending before her as part of the massive In re Initial Public Offering Securities Litigation.

A copy of the Second Circuit's opinion can be found here, courtesy of the WSJ Law Blog.

The briefs in the case are available online, as follows:

• Brief for Defendant-Appellant Underwriters Seeking Reversal of Class Certification Under Federal Rule of Civil Procedure 23(f)
• Brief for Plaintiffs-Appellees
• Reply Brief for Defendant-Appellant Underwriters Seeking Reversal Of Class Certification Pursuant Federal Rule of Civil Procedure 23(f)
• Brief for the Chamber of Commerce of the United States of America as Amicus Curiae Supporting Defendant-Appellants and Supporting Reversal of Class Certification Pursuant to Federal Rule of Civil Procedure 23(f)
• Brief For The NAACP Legal Defense And Educational Fund, Inc. as Amicus Curiae In Support Of Plaintiffs-Appellees

Plaintiffs are represented by an executive committee consisting of Milberg Weiss Bershad & Schulman LLP (chair), Bernstein, Liebhard & Lifshitz, LLP (vice-chair), Schiffrin & Barroway, LLP, Sirota & Sirota, LLP, Stull, Stull & Brody, and Wolf Haldenstein Adler Freeman & Herz LLP.

As noted previously, here, plaintiffs' counsel maintains a website in the IPO Litigation that has copies of many of the major briefs filed in the case, as well as copies of the amended complaints filed in each of the three hundred consolidated and coordinated cases.

Update: The D&O Diary has a thoughtful post on the decision here, and there are additional news articles here (FT via MSNBC), here (American Lawyer via Law.com). and here (WSJ sub. req'd).

Daily Trivia: According to the firm's resume, Sirota & Sirota filed the first antitrust action in the In re IPO Antitrust Litigation, a distant cousin to the IPO securities litigation, that alleged the collusive "laddering" of IPOs by investment banks in the United States. The litigation was initially dismissed, but reversed by the Second Circuit. A petition for certiorari is pending before the United States Supreme Court. See Billing v. Credit Suisse First Boston Ltd., 287 F.Supp.2d 497, rev’d 426 F.3d 130 (2d Cir. 2005), petition for cert. filed, April 12, 2006 (No. 05-1157).

The firm also is a bit of a rare duck, noting on their resume that they have an active securities litigation practice representing defendants prosecuted by federal or state agencies or sued by investors.

Shareholders Say 'No-Way' to Kanbay Merger

Today, Kanbay International, Inc. (NASDAQ: KBAY) announced that a class action complaint was filed in the Circuit Court of Cook County, Illinois alleging that Kanbay and its directors breached their fiduciary duties to the stockholders of Kanbay in the negotiation of the proposed merger with Cap Gemini SA (EPA: CAP) and Capgemini Financial Services, Inc. that was announced on October 26, 2006.

According to the release, the complaint:

alleges that the price negotiated is inadequate, that the directors obtained benefits that are not available to the public stockholders and that certain material disclosures are omitted from the preliminary proxy statement Kanbay filed on November 13, 2006 with the Securities and Exchange Commission.

The complaint further alleges that:

Cap Gemini aided and abetted the alleged breaches of fiduciary duty.

A copy of the complaint is available here.

Counsel for the plaintiff, Capital Trading Co., are The Brualdi Law Firm and Leland E. Shalgos.

Crain's Chicago Business has a story on the lawsuit, here, and Reuters has a story, here. The Reuters story has an obligatory "vigorous defense" quote from Cap Gemini.

Daily Trivia: One of Kanbay's board members, Cyprian D'Souza, is also the company's "Chief Culture Officer." According to a Forbes profile of D'Souza, he also held the position of "Chief People Officer from 1995 to November 2005." It's not quite a "minister of fun" or some of the other wacky job titles that internet companies handed out like candy during the dot.com boom, but it was odd enough to give me pause.

My 10 pence on the Paulson Committee Report

A guest post, by Werner Kranenburg, a former Schiffrin & Barroway, LLP summer associate, and current law student in the United Kingdom.

My 10 pence on the Paulson Committee Report

It’s only been a few days since the release of the highly-anticipated Interim Report by the Committee on Capital Markets Regulation (aka the 'Paulson Committee') and as expected it’s been the topic of the day.

For the first round of analysis, please take a look at (in no particular order) Lyle Roberts at The 10b-5 Daily, Walter Olson at PointofLaw.com here and here, Broc Romanek at TheCorporateCounsel.net Blog and Peter Lattman at The WSJ Law Blog here and here.

Looking at the Report from a UK point of view however, it is interesting to incorporate two pieces of UK legislation that do not seem to be the subject of US discussion yet. They are the Investment Exchanges and Clearing Houses Bill and the Fraud (Trials without a Jury) Bill. Regarding the first Bill, on page 69 (85 of 152) the Report states the following under the heading of 'Need For More International Regulatory Cooperation':

Regulators in the United Kingdom and Europe have voiced concerns about the extra-territorial reach of U.S. laws and rules, should a U.S. exchange merge with a U.K. or European exchange. For example, a senior officer in the U.K. Treasury has announced that the government will introduce legislation to impose a barrier against the imposition of Sarbanes-Oxley on firms trading in London should the London exchange merge with a U.S. exchange. As Ed Balls, the economic secretary to the Treasury, said with understatement: "The Sarbanes-Oxley regime in the United States is not a regime that some companies find easy to deal with."

In fact, it is Ed Balls MP, Economic Secretary to the UK Treasury (who is also quoted on page xi (13 of 152)), whose name is being used for the colloquial moniker of the Investment Exchanges and Clearing Houses Bill, namely the 'Balls Clause.' It was introduced in Parliament two weeks before the Report was published and is currently swiftly progressing toward Royal Assent. (See here to follow the Bill’s House of Commons proceedings live.)

In short, the Bill is a measure to "disallow excessive regulatory provision." Or, put differently, it is a measure against the threat of US 'regulatory creep' just in case NASDAQ were to buy or merge with the London Stock Exchange. The Report on the same page:

U.S. proponents of equity markets globalization-both market officials and regulators-have countered that extraterritorial reach should not be a problem. They argue that even after a trans-Atlantic merger, trades executed in the United Kingdom or European venues of the merged exchange, and issuers listed there, will not be subject to U.S. laws or rules. Many in Europe remain skeptical.

So true…

Regarding the second Bill, the Committee, on page 18 (34 of 152) under the heading 'Shareholder Choice of Remedies', suggests that "[t]he SEC should permit shareholders to adopt alternative procedures for resolving disputes with their companies. These procedures might include arbitration (with or without class actions) or the waiver of jury trials (a waiver commonly made in a variety of circumstances)." The Queen was there first, also by a good two weeks. In her annual Speech (as part of the State Opening of Parliament) she introduced the Fraud (Trials without a Jury) Bill thus: "A Bill will be introduced to provide for trials without a jury in serious fraud cases." It’s a controversial measure: see Legal Week for same day industry response, here for some historical background and for more recent coverage, here.

On the day of the Report’s publication (30 November), Steven Toll of Cohen, Milstein, Hausfeld & Toll, PLLC was quoted in the FT ('Experts seek to give the US back its edge', p.26), seemingly in anticipation of the Report but he could as well have responded to the Fraud Bill (an excerpt):

It [the Committee] is also expected to urge companies to ask shareholders to waive their right to a trial by jury - a move that could reduce damage pay-outs. [Which indeed it does, as noted.] Investor advocates are not convinced. Shareholder lawyer Steve Toll, of Cohen Milstein Hausfeld & Toll, called the proposal to do away with jury trials for shareholders "insane… Did anyone forget what just happened with Enron?"

As discussed previously here, he might as well already be based in the UK?

And finally, Tuesday next week (5 December) Glenn Hubbard, Co-Chair of the Committee, will be online for an hour to take Financial Times readers’ questions from 7am EST (12pm noon GMT), here. You may submit questions or comments in advance by sending an e-mail to ask@ft.com or using the form at http://www.ft.com/hubbard.

Daily Trivia: Is 'on holiday,' as they say in the UK, but will return for your amusement tomorrow.

Guest Bloggers Wanted!

I'm issuing an open call for any reader who wants to submit a guest post for this humble blog.

I'll take anything as long as it is timely, pithy, and somehow relates to securities litigation.

That means that all of you defense attorneys are welcome to write, instead of just lurking there in the background. And I expect a strong showing from the plaintiffs' bar. Academics, law students, and people without law degrees (or an intent to obtain one) who still bother to read my ramblings, are all welcome.

Go ahead, unleash your creative urge!

Interested readers should e-mail me: asavett AT findjustice DOT com (sorry for the hoops, but it keeps the spam down!)

Hanging Out the For Sale Sign

Sad, but true, corporate executives are being required to sell their "trophy properties or luxury toys to pay off legal bills, settle civil lawsuits or meet criminal forfeiture requirements mandated by judges," according to an article in Florida Today ("the Space Coast's daily newspaper") last week.

Among the highlights:

Dennis Kozlowski, the former CEO of Tyco International, Ltd., sold his luxury ski home in Beaver Creek, Colorado (which featured three wine cellars), for $10 million. Two months before that, Kozlowski sold his 130-foot J Class sloop, the Endeavour, for $13 million. His oceanfront mansion on Nantucket, known as Sea Rose Farm, is still on the market for $23 million. Pictured to the left is Koz piloting the Endeavour during happier times.






Bernie Ebbers, the former CEO of WorldCom, sold his Canadian cattle ranch, the Douglas Lake Ranch, for $68.5 million and his Mississippi mansion for $7.5 million. The Douglas Lake Ranch is pictured at left.





Scott Sullivan, the former CFO of WorldCom, sold his 30,000-square-foot mansion in Boca Raton last year for $9 million. The five-building compound has an 18-seat movie theater, two-story boathouse, domed exercise room, art gallery and a wine cellar. The St. Petersburg Times has an in depth article on the house's other features.

Walter A. Forbes, the former chairman of Cendant Corp., has placed his 8-acre estate in New Canaan, Connecticut on the market for $12.5 million (MLS listing here), following his Halloween convictions for conspiracy to commit securities fraud and of making false statements to the Securities and Exchange Commission in connection with a massive fraud that cost Cendant investors $14 billion.

Daily Trivia: The Ebbers ranch was sold to E. Stanley Kroenke, a real estate developer, and owner of the Denver Nuggets, Colorado Avalanche, and part owner of the St. Louis Rams.

World Health Securities Litigation Settles

An article in today's Pittsburgh Post-Gazette indicates that a settlement has been reached in the securities litigation pending against certain former officers of World Health Alternatives, Inc. and the company's former auditor, Daszkal Bolton LLP.

The settlement is valued at approximately $2.7 million, and would be funded by the company's D&O insurance and its former auditors. In addition, the company's former president, Richard E. McDonald, would have to surrender 435,000 shares of stock in three unnamed companies. The article notes that the settlement agreement recognizes that those securities may be unmarketable.

World Health was a Pittsburgh based provider of temporary medical staffing personnel that imploded following the August 15, 2005 resignation of McDonald after questions surfaced regarding his educational background. Just six months later the company filed for Chapter 11 bankruptcy protection, and in April 2006 the company's assets were acquired by Jackson Healthcare Solutions, a former rival based in Atlanta.

Columbus Capital Partners, L.P. and Columbus Offshore, Ltd., a pair of San Francisco based hedge-funds, are lead plaintiffs and Berger & Montague, P.C. and Caroselli Beachler McTiernan & Conboy LLC are lead and liaison counsel, respectively.

A Pittsburgh Tribune Review article details the allegations contained in the consolidated complaint filed in April 2006.

Daily Trivia: One of Jackson Healthcare's divisions is LocumTenens.com "the only free physician job board and full-service recruiting agency on the Web." The company's name means "one filling an office for a time or temporarily taking the place of another -- used especially of a doctor or clergyman."

Therus Kolff, a physician and currently the chairman of VISTA Staffing Solutions in Salt Lake City, is credited with establishing CompHealth, the first locum tenens company in the nation, in 1979.

Predicting Securities Class Actions - Part II

The Pre-Crime Unit, occasionally discussed by Bruce Carton over at the now defunct Securities Litigation Watch, appears to have grown some new legs.

The Corporate Library today announced that it had developed a ratings system to help predict the likelihood that a particular public company will face a securities class action within the next 18 months.

The analysis identifies six factors which, according to the press release

in combination with performance fundamentals such as share price volatility and leverage, provide a reliable tool for assessing the probability of [securities class actions].

The factors include:

• Excessive CEO compensation;
• Director age, tenure, over-commitment, and lack of independence;
• Institutional share ownership;
• Industry-specific risk;
• Company size; and
  
• Share trading volume
  

The group also released a report:

identifying the 75 most likely -- and 50 least likely -- public companies to face a Securities Class Action (SCA) lawsuit within the next 18 months.

The report was authored by Ric Marshall, chief analyst at The Corporate Library, and can be purchased from their online store, here, for $1,100.

An earlier Corporate Library report was discussed in this post, back in August.

A New Twist In Options Backdating Litigation

According to news reports (Long Island Business News) an amended class action complaint filed against Cablevision Systems Corp. (NYSE: CVC) in the options backdating litigation has added Lyons Benenson & Co., the company's compensation consultant, as a defendant.

According to the article, the amended complaint:

is believed to present the first case in the nation to accuse a compensation advisor of taking part in a backdating regime.

And alleges:

that Lyons Benenson & Co. attended meetings in which the backdated options were discussed.

The litigation is pending in the Commercial Division of Nassau County's (New York) Supreme Court before Judge Stephen Bucaria. An order consolidating the cases can be found here.

The Teachers' Retirement System of Louisiana is lead plaintiff and Grant & Eisenhofer, P.A. is lead counsel in the Cablevision litigation.

Cablevision has a host of options backdating issues to deal with, including the acknowledgement in this 10-Q that one of the company's backdated options grants:

related to an executive officer whose death occurred after the stated grant date of the award and before the actual grant date.

This is not the first time that Cablevision has graced these pages. Back in October, this post discussed the class action litigation related to the $7.9 billion leveraged-buyout offer made by the controlling Dolan family.

Update: The D&O Diary has a post on the Cablevision litigation, here.

Daily Trivia: The Long Island Business News is owned by Dolan Media Group, a Minneapolis based firm that owns legal or business journals in 21 markets. The company is led by President and CEO James P. Dolan who is apparently no relation to the Dolan family that controls Cablevision.

Milberg Weiss Trial Date Set

The New York Times reports that Judge John F. Walter has set a January 2008 trial date in the criminal case pending against class action giant Milberg Weiss Bershad & Schulman, LLP and Milberg partners David J. Bershad and Steven G. Schulman.

Additional defendants in the case include Seymour M. Lazar, the former Milberg client that has been accused of serving as a paid plaintiff and Paul T. Selzer, one of the lawyers accused of helping Lazar to launder the payments.

At a hearing earlier this week, prosecutors said a grand jury was investigating possible new charges that could come in a superseding indictment, but that indictment would not include any new defendants. Prosecutors indicated that if they decide to seek the additional charges, they will do so by April 2007.

The case is pending in the United States District Court for the Central District of California, and a copy of the indictment is available here.

The WSJ Law Blog also has a post, here.

Parmalat - Initial Settlements Roll In - More to Follow?

According to press and wire reports here (Reuters), here (Bloomberg) and here (AFX News via Forbes), Credit Suisse Group (NYSE: CS) and Banca Nazionale del Lavoro SpA (Milan: BNLR), a unit of BNP Paribas (OTC: BNPQY), have each agreed to pay $25 million to settle claims asserted against them in the Parmalat securities class action pending in the United States District Court for the Southern District of New York.

According to the Forbes article:

In addition to the monetary settlement, the two financial institutions agreed to institute changes in their corporate governance that will hopefully prevent future problems, [Plaintiff's attorney Stuart] Grant said. Details of those governance changes have yet to be fully worked out, he added.

The Bloomberg article also notes that:

U.S. District Judge Lewis Kaplan, who is presiding over the case, urged the remaining defendants to enter settlement talks with investors who sued, Grant said. Kaplan temporarily stopped lawyers from engaging in pre-trial discovery so talks can start.

Hermes Focus Asset Management Europe, Ltd. (manager of the Hermes European Focus Funds I, II and III) and Cattolica Partecipazioni, S.p.A., Capital & Finance Asset Management S.A., Societe Moderne des Terrassements Parisiens and Solotrat are lead plaintiffs, and Cohen, Milstein, Hausfeld & Toll, P.L.L.C. and Grant & Eisenhofer, P.A. are co-lead counsel in the Parmalat litigation.

A copy of the third amended consolidated class action complaint can be found here.

Update: The 10b-5 Daily has a post on the settlement, here.

Daily Trivia: The Atlanta branch of Banca Nazionale del Lavoro was a key player in the United States' support of Iraq during the Iran-Iraq war, funneling nearly $5 billion to Iraq during the period from 1985 to 1989.

Happy Thanksgiving...

Posts will resume after the holiday weekend.

Best wishes to you and yours!

Yet Another Press Release Permutation

Today, Bernstein Litowitz Berger & Grossmann LLP issued a press release in the SFBC International, Inc. (k/n/a/ Pharmanet Development Group, Inc. (NASDAQ: PDGI)) securities litigation that adds yet another (welcome) wrinkle to our Securities Litigation Universe of [Press] Release Permutations (a/k/a SLURP), first discussed here.

The firm announced that, on behalf of their client (and lead plaintiff), the Arkansas Teacher Retirement System, they had filed a consolidated class action complaint and provided members of the putative class with a direct link to the document.

If more firms would do something similar (issue a release and post the relevant documents on their website) when major litigation milestones are reached, class members would be far better informed of the status of any particular securities class actions.

The SFBC litigation is pending in the United States District Court for the District of New Jersey before Judge Stanley R. Chesler.

Daily Trivia: Judge Chesler is a graduate of Harpur College. Harpur is the "oldest and largest of the five academic units comprising the State University of New York at Binghamton." The college was founded in 1946 as Triple Cities College of Syracuse University to "provide educational opportunities for returning veterans of World War II." Harpur transitioned quickly into an independent entity, finally becoming a university in 1965.

Making Room for More Turkey...

Well, it's time to finish cleaning out the overflowing "to blog about" folder.

CV Therapeutics Settles Class and Derivative Complaints

According to their latest 10-Q, CV Therapeutics, Inc. (NASDAQ: CVTX), has reached a preliminary agreement to settle the class and derivative litigation pending against the company and certain of the company's officers and directors.

The class action is pending in the United States District Court for the Northern District of California before Judge Susan Illston, while the derivative litigation is pending in the Superior Court of Santa Clara County.

The settlement in the securities class action calls for CV's insurers to pay "$13.5 million to settle all claims and to pay the court-approved fees of plaintiff's counsel." Of interest, the 10-Q notes that the company:

will participate in dispute resolution proceedings with an insurer over whether or not we will reimburse that insurer for a portion of the insurer's contribution to the settlement. The amount of our reimbursement will not exceed $2.25 million, and may be a lesser amount or zero.

Under the terms of the settlement in the derivative action, the company has:

agreed to implement certain non-material corporate governance changes, and our insurers will pay the court-approved fees of plaintiff's counsel.

David Crossen is lead plaintiff and Lerach Coughlin Stoia Geller Rudman & Robbins LLP is lead counsel in the CV Therapeutics litigation.

A copy of the consolidated amended complaint in the class action is available here.

Robbins Umeda & Fink LLP is lead counsel in the derivative action.

The CV Therapeutics litigation was last discussed here, regarding a decision by Magistrate Judge Edward M. Chen on electronic discovery back in August.

HCA Settles Merger Related Litigation

It's old news now, given that on Friday the company announced that the merger had been completed, but on November 8, HCA Inc. (NYSE: HCA), announced the settlement of the consolidated class action lawsuit filed in the Chancery Court for Davidson County, Tennessee in connection with the acquisition of HCA by a group of private equity funds and HCA's management.

Barrett, Johnston & Parsley and Lerach Coughlin Stoia Geller Rudman & Robbins LLP are co-lead counsel in the HCA merger litigation

As noted here last week, an antitrust class action has been filed against more than a dozen private equity firms (including the firms involved in the HCA acquisition) alleging that the private equity firms conspired to artificially lower the valuations of corporations that the firms were acquiring.

Bradley Pharmaceuticals State Derivative Lawsuits Dismissed

Earlier this month, Bradley Pharmaceuticals, Inc. (NYSE: BDY) announced the dismissal of a consolidated derivative lawsuit pending against certain of the company's officers and directors in the Essex County (New Jersey) Superior Court.

As noted in Bradley's latest 10-Q, this is hardly the end of Bradley's securities litigation odyssey.

A federal securities class action is still pending in the United States District Court for the District of New Jersey against the company and certain of its officers and directors, and the motion to dismiss the consolidated class action complaint (here, via Stanford) was denied earlier this year.

Lead plaintiffs in the federal class action are the Retirement Plan for Chicago Transit Authority Employees, American Welding Co., Inc. and Edward R. Greene (American's president) and Abbey Spanier Rodd Abrams & Paradis, LLP are lead counsel.

Additionally, a federal derivative lawsuit is still pending in the United States District Court for the District of New Jersey against the company and certain of its officers and directors. Curiously, the company chooses to describe the federal derivative action (but not the state derivative action) as an "alleged derivative complaint."

Motions to Dismiss Largely Denied in Brocade Securities Litigation

According to news reports (San Jose Mercury News) Judge Charles R. Breyer has denied in part and granted in part the motions to dismiss in the consolidated securities class action pending against Brocade Communications Systems, Inc. (NASDAQ: BRCD).

According to these civil minutes, Judge Breyer denied the motions to dismiss filed by Brocade, and Brocade's former CEO, Greg Reyes, and former CFO, Antonio Canova, and granted the motions to dismiss filed by KPMG, LLP and Brocade's audit committee, but granted plaintiffs leave to file an amended complaint.

The Arkansas Public Employees' Retirement System is Lead Plaintiff and Nix, Patterson & Roach LLP and Patton, Roberts, McWilliams & Capshaw LLP are co-lead counsel in the Brocade litigation.

A copy of the consolidated class action complaint in the securities class action is available from Stanford, here.

The lead plaintiff briefing process is fairly unique, in that when the motion is contested, each party files opening, opposition and reply briefs, as opposed to the usual course in federal litigation where one party files an opening and reply brief and the other party files an opposition. A review of the Brocade pleadings available on the Stanford website, here, indicates that the lead plaintiff briefing got somewhat more complicated, with three movants (Intrepid Capital Management; the Arkansas Public Employees Retirement System; and the Oklahoma Firefighters Pension & Retirement System) filing nearly twenty briefs including sur-replies, supplemental briefs, responses to sur-replies, second supplemental briefs, well you get the picture.

Daily Trivia: Ok, so it isn't related to any of the above cases, but it is seasonally topical.

Cranberry sauce was invented by Marcus L. Urann, a lawyer and cranberry grower from South Hanson, Massachusetts in 1912. Urann went on to found what is now known as Ocean Spray with two other farmers in 1930. The jellied variety that will grace millions of tables later this week showed up on the scene in 1941. Thanks to The Birmingham News for the tip.

For those wanting more trivia tidbits to impress relatives, the University of Maine Cooperative Extension has a cranberry trivia timeline here, and two University of Massachusetts economics professors have authored a paper, The U.S. Cranberry Industry: Historical Changes and the Current Situation that provides a long and thorough history of, you guessed it, the cranberry industry in America.

What a Difference a Day Makes

On Tuesday, The Rosen Law Firm P.A. issued a press release, announcing that it had commenced an investigation into allegations that Bodisen Biotech, Inc. (AMEX: BBC) violated the federal securities laws by failing to adequately disclose certain material relationships the company had with Benjamin Wey a/k/a Benjamin Wei and New York Global Group, Inc.

The very next day, the law firm announced that it had apparently completed its investigation, and had filed a class action charging Bodisen with violations of the federal securities laws.

A copy of the firm's "draft complaint" can be found here.

The response by the company could of course be predicted. They fired back with a press release today, stating:

The Company, Ms. Wang and Mr. Chen intend to defend vigorously the Tabor complaint and any similar complaints that have been filed.

For more on the relationship between Bodisen and Wey, readers should read articles here and here by Herb Greenberg of MarketWatch.com.

Daily Trivia: The Rosen Law Firm has their offices in the Empire State Building. Start to finish - it took only one year and 45 days to build what was at the time the tallest building in the world.