The Risks of Investing in SPACs

POMERANTZ MONITOR | MAY JUNE 2021

By Brandon M. Cordovi

Special Purpose Acquisition Companies (“SPACs”) burst onto the Wall Street scene, seemingly from nowhere, as the COVID-19 pandemic swept the world by storm in 2020. Their rise to prominence has been so profound that it has garnered the attention of the SEC and the plaintiffs’ bar. The glamour of SPACs has even drawn superstar athletes, such as Serena Williams and Alex Rodriguez, as well as entertainers, such as Jay-Z and Ciera, to take on prominent roles as investors and advisors.

What is this seemingly newfound investment opportunity that everyday investors and celebrities alike have flocked to? A SPAC is a publicly traded company that is set up by investors with the sole purpose of raising money through an IPO to acquire an existing company. The SPAC itself does nothing at all. Typically, its only asset is the money raised through the IPO to fund a targeted acquisition.

These shell companies are usually formed by a team of institutional investors. At the time the shell company goes public, it is not certain what existing company it is seeking to acquire. After the money is raised through an IPO, it is placed in an interest-bearing account until the acquisition can be made. The SPAC generally has up to two years to identify a target company to acquire. Once a target company has been identified and an agreement is in place, the acquisition must be approved by the SPAC’s shareholders through a vote.

Once the acquisition is completed, shareholders are left with the choice of either converting their shares of the SPAC into shares of the acquired company or redeeming their shares and receiving their investment back plus the accrued interest. If the SPAC fails to identify a target company within the two-year time limit, the SPAC is liquidated, with all shareholders receiving their original investment back along with accrued interest.

Since SPACs have risen to prominence only recently, many investors assume they are new. In fact, SPACs have been around for decades but have scarcely been used. They became more prevalent recently due to the extreme market volatility caused by the COVID-19 pandemic. Existing companies looking to go public were left with a choice: either postpone their IPOs due to the uncertainty, or merge with a SPAC.

The benefits of merging with a SPAC are fairly straightforward. As Peter McNally, global sector lead at Third Bridge, a research firm, explains, “SPACs are giving management and boards of companies more options for quicker and more efficient ways to go public.” Registering an IPO with the SEC can take up to six months, while merging with a SPAC takes only a couple of months to complete, providing the acquired company with quicker and easier access to capital. Additionally, in theory, companies acquired by SPACs are not subject to the same scrutiny under the securities laws and by the SEC, as they were not introduced to the market through IPOs. As a result, SPACs have been more aggressive in making forward-looking statements, prior to targeted acquisitions being finalized, to draw investors in. These perceived benefits are also where the risks lie and are the reason why SPACs have become the focus of the SEC’s crackdown.

The risk of investing in a SPAC for everyday investors is significant. For starters, investors do not know which company the SPAC will seek to merge with. That uncertainty, in and of itself, creates risk. Further, SPACs do not seem to be exercising the same rigorous due diligence that is performed during a traditional IPO. The primary concern of a SPAC is to find a target company to acquire before the two-year time limit runs out. For that reason, SPACs are incentivized to find an acquisition that can close quickly rather than finding the best acquisition target based on performance and price.

Typically, being unable to access the hottest IPOs, an average retail investor’s ability to access a SPAC as soon as it goes public may tempt them to accept the risks.

Investors are not the only ones who bear some risk with their involvement in SPACs. Target companies run the risk of having the merger rejected by the SPAC’s shareholders. Once a company has been chosen for acquisition, the de-SPAC process, which is similar to that of a public company merger, begins. The SPAC, acting as the buyer, requires the approval of its shareholders. Generally, more than 20% of the voting stock approval is mandatory.

Given the recent surge in SPACs, it comes as no surprise that the SEC and the plaintiffs’ bar have taken notice. In a statement issued on April 8, 2021, John Coates, the SEC’s acting director of the Division of Corporation Finance, cautioned that de-SPAC acquisitions are similar to IPOs and should be treated as such under the securities law. Further, Coates warned, the perception that SPACs are subject to reduced liability is “overstated at best” and “seriously misleading at worst.”

Coates warned of the various dangers of forward-looking statements being issued by SPACs, such as their speculative, misleading, and sometimes fraudulent nature. Risk disclosures in SEC filings may serve as a “safe harbor defense” for public companies in securities litigation that arises from their statements to investors, in that predictions, projections and expectations in disclosure documents may not be construed as misleading if they contain sufficient cautionary language disclosing risks. Coates specifically questioned whether SPACs are excluded from the safe harbor under the PSLRA, given their similarity to IPOs, which are excluded. However, there is no definition as to what an IPO consists of in the PSLRA or any SEC rule, and case law interpreting what constitutes an IPO under the PSLRA is sparse. Coates stated that the SEC is considering making rules or providing guidance as to how the PSLRA safe harbors apply at the final stages of a SPAC transaction.

Given the uncertainty regarding whether the safe harbor applies to SPACs, they are expected to be more cautious about the forward-looking statements in their disclosures. This will diminish the appeal of SPACs to investors who have relied on these forward-looking statements to anticipate the type of acquisition targeted by a SPAC in which they invested. It is important to note that regardless of whether the safe harbor applies to SPACs, they are still prohibited from making false or misleading statements in their disclosures. With the SEC turning their attention to SPACs, the forward-looking representations issued are now under the microscope for such infractions.

Further, between September 2020 and March 2021, at least 35 SPACs were sued by shareholders in New York state courts. Generally, these lawsuits allege that SPAC directors breached their duties by providing inadequate disclosures regarding the proposed acquisition. Some of the lawsuits also claim that the SPAC itself, along with the target company and its board of directors, aided and abetted the SPAC directors’ breaches. Notably, all of these lawsuits are limited to state law tort claims and do not assert any state or federal securities claims. The lawsuits were all filed after the de-SPAC transactions were announced but before shareholders had voted on approving the transactions. As such, the lawsuits seek preliminary injunctive relief to prevent the acquisitions from being finalized.

Lawsuits against SPACs remain in their infancy. The only cases in New York state court that have been resolved are those where plaintiffs stipulated to voluntarily dismiss the action. The lawsuits, however, provide a clear indication that the plaintiffs’ bar is monitoring and pursuing SPACs. The Harvard Law School Forum of Corporate Governance anticipates there will be increased litigation in federal courts regarding SPACs, including claims under section 10(b) of the Securities Exchange Act. Given that SEC guidance and intervention appears to be on the horizon, it appears likely that more litigation will follow.

Will SPACs remain prevalent over the long haul, or fade into the background where they have resided for decades? The SECs intervention, or lack thereof, will play a large part in determining that. However, Paul Marshall, co-founder of the investment firm Marshall Wace, did not mince words in his criticism of the future outlook of SPACs, predicting that the phenomenon will “end badly and leave many casualties.” Unsurprisingly, based on his outlook on SPACs, Marshall is shorting them and betting on their eventual demise. Time will tell whether he is correct. However, the returns on SPACs have steadily declined, and it appears the phenomenon which blossomed as uncertainty flooded the market may already be fading as that same uncertainty begins to dissipate, the world begins to reopen, and a new normal is established.

The Value of Saber-Rattling Proposals to Break the Shield of Business Judgment

POMERANTZ MONITOR | MAY JUNE 2021

By Michael J. Krzywicki

A once-in-a-century pandemic is not the only parallel between our current times and the Progressive Era of the late nineteenth and early twentieth centuries, a period of widespread social activism and political reform across the United States. A current progressive issue is shareholder action in response to racial equity and how it impacts shareholder value. Two related stories are now unfolding, as the U.S. Securities and Exchange Commission (“SEC”) blocks Amazon’s effort to stop shareholder votes for racial equity audits, and a Delaware lawsuit says Pinterest’s race and gender bias hurts business. These stories echo the political overtones of the labor disputes of the Progressive Era. In addition, they raise the question: does the business judgment rule survive in today’s political climate that values diversity more than ever?

The mere fact that shareholders are owners does not mean much under Delaware law: the business and affairs of every corporation are managed by or under the direction of the board of directors, not the shareholders. Shareholders have literally no say under state law, except in certain fundamental matters where the General Corporation Law gives them a vote, such as in the election of directors, amendment of charter and bylaws, and certain fundamental transactions. Under black letter law, directors not only can ignore the wishes of the shareholders, but also, they must actually exercise their own business judgment. The shareholders, for their part, can remove directors; but they cannot sue the directors for failing to do their bidding.

On the other hand, federal securities law acts as if shareholders have a right to express their preferences to directors. That is not exactly true under state law, but it is the law that governs shareholder access to the corporate proxy. The concerns investors raise over day-to-day business judgments versus corporate governance is more about federal securities law than it is about state corporate law. But federal securities law generally only allows for precatory shareholder proposals, not mandatory ones.

So much of why the issue of the connection between racial equity and shareholder value is intriguing involves the clash of several different legal principles and policy objectives, which seems to require expanding the narrow and unequivocal duty of care owed by directors.

The Use of Disclosed Interests in Business Judgment

There are at least two different contexts that might expand the narrow and unequivocal meanings of business judgment decisions by a board of directors.

The business judgment rule states that boards are presumed to act in “good faith”—absent evidence to the contrary—regarding the fiduciary duties of loyalty, prudence, and care owed to their shareholders. The general problem with interpreting the business judgment rule in the linguistic context of corporate governance has been well canvassed since the scandals at Enron, Global Crossing, ImClone, Tyco, and WorldCom. That is, the duty of care directed to maximize shareholder value must minimally ensure that the corporation remains a going concern. The cure for this problem is also well known: The board attends to the interest of other stakeholders such as employees, customers, and the economic community writ large.

Unfortunately, although this advice is reasonably sound, it is not very helpful. The advice—exercising judgment as a purposeful guide to careful decision making—is a broad generalization that itself must be decided. A rule for exercising judgment that itself demands judgment calls is not much help. This particular rule tells directors to attend to the “interest,” but the word “interest” is a word like any other word; it too is equivocal. In other words, the technique for exercising purpose appears to be a variant of the first possibility that directors use linguistic context. If this conclusion is correct, then the second possibility collapses into the first except for the distinction that one is expanding the linguistic context beyond the bounds of a single interest. Consequently, unless there is some way to broaden the scope of possible interests, the rule forecloses as many shareholder proposals as it considers. The SEC recently expanded on this point about the evidence that is used to discern business purpose.

Last August, for the first time in thirty years since Chancellor William Allen, of the Delaware Court of Chancery, famously remarked that “a corporation is not a New England town meeting,” the SEC revised the periodic disclosure requirements under Regulation S-K. In many instances, the new regulation replaces the formal prescriptive requirements with flexible guidelines intended to elicit company-specific and industry-wide information deemed material to investors’ understanding of the business purpose behind publicly traded companies. By the same token, the new regulation would appear to give directors new latitude under the purpose-based disclosure requirements to create and provide the information they see as material in this wider context. These broad mandates seem to fit the contours of the current transatlantic movement in unexpected ways. The events of 2020 turned the spotlight on corporate America’s role in creating and perpetuating societal inequities, a development reminiscent of the century-old disputes arising from a formalistic reliance on vested rights of property and freedom of contract by corporations to justify injunctions against labor reform activity and invalidation of labor-protective legislation. During the Progressive Era, Justice Oliver Wendell Holmes led the charge from the Supreme Court bench in dissent from the formalistic view and put enormous pressure on corporations to publicly adopt stakeholder-centric proposals.

The cases Holmes heard submerged a conflict not unlike the present issue between two legally acknowledged “rights”—the right to contract freely that courts recognized, and the right to compete freely that courts suppressed. Because the controversies involved two conflicting categories of “vested” rights, Holmes insisted that deductive reasoning could not neutrally decide the cases. Rather, resolution of the issue required a process of policy balancing. Holmes perhaps put the point best in dissent from the Court in Lochner, where he stated: “General propositions do not decide concrete cases.”

The highly concentrated institutional investiture in today’s stock market, coupled with widespread endorsement from asset managers and comptrollers backing the stakeholder model, may further drive boards to adopt an expanded view of corporate purpose in their decision making.

As Holmes wrote, “if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms or deductions, but he does want to know what the Massachusetts or English courts are likely to do in fact.” The new SEC disclosures allow shareholders to know in fact under federal securities law what may likewise be more amendable to the needs of modern society, if directors are more open about the non-shareholder value judgments that influenced board decisions, instead of instinctively trying to veil them behind a curtain of syllogistic formal business judgments. Otherwise, companies are likely to face future shareholder actions for their continued failure to disclose such material information.

Q&A: Linda Kellner

POMERANTZ MONITOR | MAY JUNE 2021

By The Editors

Pomerantz recently spoke with Linda Kellner, the President of Savasta & Co., Inc., a third-party administrator for Taft-Hartley pension plans.

Monitor: What path brought you to a career in pension management?

Linda Kellner: I was hired by the Teamsters Local 295 as a secretary. I eventually became the bookkeeper’s assistant, and then a claims examiner working in the pension department, where I learned everything that went on in the fund office. While working for the Teamsters, I got a Bachelor of Business Administration. By 1994, when the Teamsters’ fund’s third-party administrator left, I had long experience working for their pension and welfare funds. They offered me the job, but I had two little kids at home and didn’t want the added responsibility. The fund hired Neil Savasta as their third-party administrator, and I became an employee of Savasta & Co.

M: What changed for you then?

LK: Neil and I started reaching out to other funds that needed a third-party administrator, and the company grew. I took the requisite courses and earned the Certified Employee Benefit Specialist designation from the International Foundation for Employee Benefit Plans. I served as Executive Vice President of the firm for a while. As Neil aged and started stepping back, I became the President and Neil took on the role of Chairman. It is four years now since he passed away.

M: And the Teamsters 295 funds are still Savasta clients?

LK: Yes. I’ve been working for that local for decades now, so they are very near and dear to my heart.

M: The Teamsters 295 funds are lead plaintiffs in a securities class action against AT&T that Pomerantz is litigating. What was your role in signing them on?

LK: Pomerantz provided us with the information needed, the reasons they thought it would benefit the funds to serve as lead plaintiff. We, of course, had to bring it to the board of trustees for the funds, who opted to go forward. There’s a good group of trustees on these funds, and the employer side is big corporate. Both the employer side and union side agreed.

M: Is there often friction on boards that are equal parts employer and union trustees?

LK: With some boards, sure, when they come to the table, there is tension on both sides. The trustees on this board, though, have been working together a long time and are a pretty cohesive group, truly interested in pursuing things that will make the members happy and make their lives better.

M: Have you had to devote much time to the litigation in which the Teamsters is lead plaintiff?

LK: No, not at this time. Pomerantz is taking care of almost all the business and daily events that go on within this class action.

M: What common concerns are hearing from your clients now?

LK: There are pension funds that are insolvent, or that are critical and declining. Everyone is anxiously waiting for the Pension Benefit Guaranty Corporation’s guidance on the American Rescue Plan, which will be out in mid-July. Many plans will benefit. Pension funds are long-term entities; most are projected to provide benefits for 40 or 50 years. The American Rescue Plan aims to provide pension benefits for 30 years. The funds that are insolvent are really going to get a nice chunk of money that will make a big difference in what they can do with their income and contributions and investments. Considering that the PBGC in October 2020 had projected its own insolvency in 2024 or 2025, this is quite something.

M: If you could make one change to the Taft-Hartley fund plans, what would it be?

LK: I would like to see more awareness among members as to the great benefits that they have. The old timers tend to be more appreciative because they’re closer to retirement, but younger members generally take their benefits for granted. A lot of them don’t contribute to the premiums – those are paid directly by the employer. A percent of the members’ pay goes into their pension and welfare and annuity funds, rather than their paychecks, but they often don’t realize what they’re receiving in return.

M: How could that change? With education?

LK: Definitely. We do our best, writing regular newsletters for some of our funds. Recently we did an article about a member who passed away without ever changing his beneficiary. So everything he had went to his mother, even though he’d been married for something like twenty years. It was amazing how many phone calls we got after that, with people checking who their beneficiary was or asking for a change of beneficiary form.

M: Is there anything else you would like to mention?

LK: Just that I have enjoyed my career. It turned out that what I thought would be a temporary job evolved into a rewarding, lifelong career.

85 Years — A Seismic Shift in Assessing Losses

POMERANTZ MONITOR | MAY JUNE 2021

By The Editors

Illicit stock options, a slush fund for executives, an international fugitive on the run and some good, old-fashioned lawyering that wrought justice for defrauded investors. In celebration of the founding of the Pomerantz Firm 85 years ago, the Monitor continues its look back at highlights from its history.

In 2006, Pomerantz filed a securities fraud lawsuit against Comverse Technology, Inc. and some of its directors, alleging a stock options back-dating scheme by Comverse. Unbeknownst to investors, the company’s executives, including its founder and former CEO, Jacob (“Kobi”) Alexander, were retroactively “cherry picking” dates when the stock closed at its lowest and falsely claiming that the options were granted on those dates. The exercise prices for the backdated options were thereby based on the stock closing price on the cherry-picked dates. Because the options were, in fact, granted on dates when the market price was higher, backdating placed the options “in the money” the instant they were granted. In some cases, according to the complaint, such grants were made to fictitious employees in order to create a slush fund of backdated options for management to dole out as it pleased.

Investors suffered huge losses when Comverse disclosed its backdating scheme in March and April 2006, as the company’s common stock price dropped 20 percent on the heels of the two announcements.

Judge Nicholas G. Garaufis of the Eastern District of New York referred the lead plaintiff motions to U.S. Magistrate Judge Ramon E. Reyes, Jr. The Magistrate Judge denied Pomerantz’s motion to be named lead counsel on behalf of the Menorah Group, made up of several Israeli institutional investors, and instead named the Plumbers & Pipefitters National Pension Fund (“P&P”) as lead plaintiff.

Pomerantz filed an objection to the Magistrate Judge’s Report and Recommendation and appealed his decision to the district court. The Menorah Group based its objection on the fact that most of P&P’s losses resulted from “in and out transactions,” in that both the purchase and the sale of the shares took place before the alleged misrepresentations were disclosed. The Menorah Group argued that if the “in and out” shares were excluded, P&P did not suffer a $2.9 million loss, but instead actually realized a $132,722 gain. Judge Garaufis agreed, vacated the Magistrate Judge’s ruling, and appointed the Menorah Group as lead plaintiff.

In its objection the Firm cited, among other cases, the then-recent Supreme Court decision Dura Pharmaceuticals, Inc. v. Broudo. There, the Court clarified the applicable standards for pleading loss causation: a purchaser must have retained shares at the time the truth was disclosed to the market. This ruling, plaintiffs alleged, essentially endorsed the Second Circuit Court of Appeals’ decision in Lentell v. Merrill Lynch & Co., Inc., which held that to establish loss causation, a plaintiff must allege “that the misstatement or omission concealed something from the market that, when disclosed, negatively affected the value of the security.”

This decision secured by Pomerantz effected a seismic shift in how courts assess plaintiffs’ losses at the lead plaintiff stage. Patrick V. Dahlstrom, who led Pomerantz’s litigation with Marc I. Gross, stated at the time that the decision “reinforces the growing recognition that courts must conduct such analysis of the facts ... and eliminate those losses that are clearly not recoverable, in determining which movant has the largest financial interest.”

In December 2009, after years of hard-fought litigation, Comverse and Kobi Alexander agreed to settle the lawsuit for $225 million, with $60 million of that total to come from Alexander’s own pockets. The settlement constituted the second-largest recovery ever for shareholders alleging securities fraud claims related to options backdating. The recovery from Alexander was one of the largest ever in a federal securities action from an individual defendant.

After the initial complaints in the action were filed, the three main perpetrators of the fraud – Alexander, CFO David Kreinberg, and General Counsel William F. Sorin – were indicted by the U.S Department of Justice. Rather than surrender to the U.S. Attorney, as he had agreed to do, Alexander fled the country and surfaced months later in Namibia, which did not have an extradition treaty with the United States. Back home in the U.S., his possessions were seized, and he lived as a fugitive from justice, albeit an extraordinarily well-heeled one, for about ten years.

In 2011, Alexander settled the civil charges with the SEC and surrendered bank accounts worth $46 million to federal authorities. In 2016, after a plea bargain, he returned to the U.S. to face criminal charges. In February 2017, he sat in an Eastern District courtroom before Judge Garaufis – a stroke of poetic justice – who sentenced him to 30 months in prison. When Alexander’s attorneys requested that he be free on bail prior to sentencing, Judge Garaufis reportedly said, “Spare me – I wasn’t born yesterday.” A month later, Alexander was transferred to Israel to carry out his remaining sentence; he was released on probation in October 2018 and was not allowed to travel abroad until April 2019. The Monitor was unable to confirm reports that he is now living freely in the United States.

Pomerantz Settles Ground-Breaking BP Litigation

POMERANTZ MONITOR | MARCH APRIL 2021

After nine years of hard-fought litigation, Pomerantz recently obtained a confidential, favorable monetary settlement from BP plc for our nearly three dozen institutional investor clients from around the globe that had sought to recover losses caused by BP’s devastating 2010 Gulf of Mexico oil spill, the worst such disaster in U.S. history. Our ground-breaking work created a new path forward for investors in foreign-traded securities to pursue remedies in U.S. courts, while establishing cutting-edge precedent for securities claims brought under English common law.

Shortly after the Deepwater Horizon rig exploded and sank less than 100 miles from the U.S. coast, the price of BP’s ordinary shares and American Depository Shares (ADSs) plummeted, amid revelations of the spill’s true scale and BP’s inadequate safety commitments and inability to contain it. While BP investors could pursue U.S. federal securities law claims in U.S. courts to recover their losses in its U.S.-traded ADSs, the U.S. Supreme Court’s decision in Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247 (2010) barred use of those laws to reach foreign-traded securities, undoing decades of prior precedent. Investors in BP’s London-traded ordinary shares seemed to lack legal recourse in U.S. courts.

Pomerantz’s BP litigation has the distinction of being the earliest successful workaround to the roadblocks set by Morrison. Our novel arguments – and our successes – paved the way for investors, both foreign and domestic, to pursue foreign law claims, against a foreign company, seeking recovery for foreign-traded shares, in U.S. courts post-Morrison.

Given our institutional investor clients’ lack of remedy under the U.S. federal securities laws for their losses in BP’s ordinary shares, starting in 2012, we began filing individual lawsuits alleging common law claims, which were consolidated for pretrial proceedings before U.S. District Judge Keith Ellison of the Southern District of Texas. Thereafter, Pomerantz survived three rounds of BP’s motions to dismiss, as well as BP’s related motions for reconsideration and other contested motions, to safeguard our clients’ rights. In the process, the Firm earned a series of closely followed, cutting-edge wins on behalf of the 125+ institutional investors who ultimately pursued such claims against BP.

In 2013, Pomerantz survived BP’s first motion to dismiss, which had argued that the U.S. Constitution’s Dormant Commerce Clause and the forum non conveniens doctrine required dismissal of our U.S. lawsuits in deference to U.K. courts, which impose a loser-pays regime that disincentivizes high-risk, contingent litigation. This win secured the rights of U.S. institutional investors, who also had U.S. federal law claims concerning BP’s U.S.-traded American Depository Shares, to simultaneously pursue English common law claims concerning their BP ordinary share losses in U.S. court.

In 2014, Pomerantz survived BP’s second motion to dismiss, securing the same rights for foreign institutional investors by again defeating BP’s forum non conveniens argument, which this time had argued that non-domestic investors, including ones based in the U.K., should have their cases dismissed for pursuit in U.K. courts. We also persuaded Judge Ellison to reject BP’s argument that a U.S. federal statute, the Securities Litigation Uniform Standards Act of 1998, should be extended to cover foreign law claims and thereby serve to extinguish them in deference to non-existent U.S. federal statutory remedies. This win opened the door for institutions worldwide to pursue claims within the limitations period, including Pomerantz clients from Canada, the U.K., France, the Netherlands, and Australia.

In 2017, we survived BP’s third motion to dismiss, securing the rights of investors who retained BP stock, rather than purchased it anew, in reliance on the fraud to seek recovery under English law for investment losses. The U.S. Supreme Court had barred this approach, often called a “holder claim,” under the U.S. federal securities law in Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). However, we spent years developing detailed documentary evidence with our clients and their outside investment management firms and consulting with an English law expert to develop robust amended complaints alleging the predicates to a “holder claim” theory under English law. To do so, we fought to secure our right to amend our complaints to plead this theory, over BP’s opposition, which Judge Ellison granted. This years-long effort developed facts evidencing actual, documented reliance by our clients and their investment managers on specific aspects of the alleged fraud and their contemporaneous decisions on identifiable dates to maintain their BP investment, rather than reducing it, reallocating it, or eliminating it altogether. The Court agreed that, for some Pomerantz clients, we had pled cognizable damages, legally sufficient reliance on the alleged fraud, and adequately memorialized investment retention decisions. This ground-breaking ruling has precedential value for both U.S. and Commonwealth of Nations courts, given the scarcity of precedent validating a “holder claim” theory of recovery for investors.

Beyond these motion wins, Pomerantz also applied considerable pressure on BP through our extensive, sustained discovery efforts. The Firm oversaw a multi-year effort to access BP’s most relevant documentary evidence. We worked with e-discovery vendors to run analytics, threading, and search terms on 2 terabytes of BP materials (~1.5 million documents) from prior oil spill litigation and oversaw a review team that pared the data set down to 45,000 documents. Having done so, we pressed BP for additional documents and later pursued a successful motion to compel, over BP’s opposition, that resulted in the Court’s ordering BP to run 60+ Pomerantz -authored searches on the email accounts and document drives of the individual defendants, other high-value BP employees, and BP Investor Relations personnel. We oversaw efforts to search and review the resulting ~150,000+ documents. We worked with consultants to load the post-review documents into a trial preparation platform to enhance our ability to examine witnesses, brief further motions, and prepare for trial. Throughout these efforts, we organized the other plaintiff firms with lawsuits on file to contribute resources and attorney hours, achieving efficiencies through collaboration that kept our clients’ litigation expenses relatively low.

In early 2021, before our clients or their outside investment managers were ever deposed, we succeeded in resolving the BP litigation for a confidential, favorable monetary settlement for our nearly three dozen clients, including three newly signed clients who, just months earlier, had switched representation after eight years of litigation to retain Pomerantz as their BP counsel.

Pomerantz’s BP litigation was led by Partner Matthew L. Tuccillo, who briefed and argued most motions on behalf of the Firm and its clients, oversaw the Individual Action Plaintiffs’ Steering Committee, and served as sole interface with BP and the Court on behalf of all institutional plaintiffs. Pomerantz’s BP team included Managing Partner Jeremy A. Lieberman, Senior Counsel Marc I. Gross, and Partner Jennifer Pafiti, among many other contributing attorneys and staff.

ESG Disclosure in the Biden Era

POMERANTZ MONITOR | MARCH APRIL 2021

By Jennifer Pafiti

The Securities and Exchange Commission (“SEC”) requires companies to disclose their most significant risk factors in their filings in order to warn investors of the risks of either purchasing or continuing to own their company’s stock. Such disclosures may also serve as a “safe harbor defense” for public companies in securities litigation arising from their statements to investors, in that predictions, projections and expectations in offerings and other disclosure documents may not be construed as misleading if they contain sufficient cautionary language disclosing specific risks.

Law360 has just published the findings of a review that it, along with analytics provider Intelligize, conducted on changes in companies’ risk disclosures at the dawn of the Biden era. According to their review, at least 97 companies updated the “risk factor” sections of their SEC filings as of February 26 “to reflect President Biden’s arrival in office.”

Law360 and Intelligize found that fossil fuel-energy companies and drug developers are the most common stock issuers updating their risk disclosures to warn investors of potential policy changes that could harm their businesses under a Biden administration. Other industries, they report, have cautioned investors that a rise in corporate taxes could affect their profitability. According to Law360, “Fallout from the coronavirus pandemic has also been a recurring “risk factor.” ... Some banks are now warning investors that policies aimed at relieving borrowers may affect their bottom lines.”

Under the former SEC Chair, Jay Clayton, the SEC adopted more than 90 new rules. Investor advocates and state securities regulators criticized the “principles-based” rules enacted under Clayton for leaving too much to interpretation and providing inadequate guidance as to their scope of and compliance. For example, Regulation Best Interest (Reg B1), prohibits brokers from placing their own interests ahead of their customers, yet does not require brokers to meet the same rigorous “fiduciary standard” that is imposed on investment advisers.

One of the keystones of President Biden’s agenda is his commitment to protecting the environment. He has promised to hold polluters accountable by establishing “an enforcement mechanism to achieve net-zero emissions no later than 2050.” Biden’s ambitious environmental goals may face challenges in the Senate, but he will have some leeway to pursue them via the SEC.

Biden has nominated Gary Gensler, an academic, former investment banker, and former government finance official in the Obama administration, to serve as the SEC’s 33rd chair. During his confirmation hearing on March 2, Gensler told the Senate Banking, Housing and Urban Affairs Committee that he supports more climate risk disclosure, pledging that the SEC will undertake economic analysis and seek public feedback on how to advance it. “There are tens of trillions of investor dollars that are going to be looking for more information about climate risk,” he said, adding that “issuers will benefit from such disclosures.”

SEC Commissioner and Acting Chair, Allison Herren Lee, is strongly critical of policies adopted under Clayton’s tenure. She has called the agency’s failure to require the disclosure of environmental, social, and governance (ESG) related risks such as diversity and climate change “an unsustainable silence” – evoking, for some, Rachel Carson’s seminal 1962 book, Silent Spring, which helped to inspire an environmental movement that led to the creation of the U.S. Environmental Protection Agency. In her September 23, 2020 Statement to the Amendments to Rule 14a-8, Lee wrote, “Climate change, workforce diversity, independent board leadership, and corporate political spending, as well as other ESG-related issues, are increasingly important to investors—and increasingly present on proxy ballots. ... Environmental and social proposals have been ascendant in recent years, making up more than half of all proposals filed in recent seasons.” She criticized Clayton’s SEC for moving to restrain those efforts “just as they are gaining real traction.”

On March 5, SEC Commissioners Hester M. Peirce and Elad L. Roisman – both Republicans – published a joint statement in which they appear to dig in their heels to privilege the status quo. Referring to the recent “steady flow of SEC “climate” statements” they ask:

What does this “enhanced focus” on climate-related matters mean? The short answer is: it’s not yet clear. Do these announcements represent a change from current Commission practices or a continuation of the status quo with a new public relation twist? Time will tell.

It is certainly likely, though, that the SEC under Biden will scrutinize claims made by investment firms and financial advisors regarding their ESG funds, on the lookout for “greenwashing” attempts to make a fund appear more sustainable or ESG-compliant than it actually is.

Congressional Democrats, meanwhile, have been promoting legislation that would require companies to disclose ESG-related risks for years. Senator Elizabeth Warren’s proposed Climate Risk Disclosure Act of 2019 “would require public companies to disclose more information about their exposure to climate-related risks, which will help investors appropriately assess those risks, accelerate the transition from fossil fuels to cleaner and more sustainable energy sources and reduce the chances of both environmental and financial catastrophe.”

Representative Juan Vargas introduced the ESG Disclosure Simplification Act of 2019 to establish a Sustainable Finance Advisory Committee within the SEC that would “submit to the Commission recommendations about what ESG metrics the Commission should require issuers to disclose.”

Treasury Secretary Janet Yellen, who has called climate change “an existential threat,” intends for her department to play an integral role in fighting it. She is expected to appoint a “climate czar” and to use the Financial Stability Oversight Council to crack down on climate-related financial risks.

On March 10, 2021, the U.S. Department of Labor announced that it would suspend enforcement of Trump- era regulations limiting socially conscious investments by retirement plans while crafting new regulations that “better recognize the important role” of ESG investments in retirement plans.

The Investment Company Institute (“ICI”), which manages over $34 trillion in assets globally, has called upon public companies in the United States to provide ESG disclosure consistent with standards set by the Task Force on Climate-Related Financial Disclosure (TCFD) and Sustainability Accounting Standards Board (SASB).

On March 17, at a virtual conference of the ICI, Acting SEC Chair Lee defined the principal that is “the basis of shareholder democracy: through clear and timely disclosure, we empower investors to hold the companies they own accountable—including accountability on climate and ESG matters.” Expressing concern that “our regulations have not kept up with this new landscape of institutional investor-driven corporate governance,” Lee called for changes to shareholder proxy voting disclosures that would incorporate “soaring demand” for ESG investment strategies.

According to Benjamin D. Stone of Mintz Insights, “Should President-elect Biden successfully institute a regulatory framework for corporate ESG disclosures, investment funds will be well-positioned to deliver trillions of dollars of investment capital into the U.S. economy to meet climate goals.”

Still, the SEC has yet to define ESG or direct companies on exactly which ESG-related risks it wants them to disclose. The United States lags well behind Europe in this regard. The EU Sustainable Finance Disclosure Regulation (2019/2088) comes into force on March 10, 2021. In the United Kingdom, new climate-related disclosure regulations that apply to investment managers in the U.K. are expected to be phased in from 2022.

It remains to be seen whether the United States can catch up.

Pomerantz Submits Amicus Brief to Supreme Court

POMERANTZ MONITOR | MARCH APRIL 2021

By The Editors

In a hotly contested issue before the United States Supreme Court affecting investors’ rights to recoup damages from publicly traded companies as a result of securities fraud, Pomerantz LLP submitted the sole amicus brief on behalf of twenty-seven of the foremost U.S. scholars in the field of evidence. One of the two issues before the High Court in Goldman Sachs Group Inc. et al v. Arkansas Teachers Retirement System, et al. (No. 20-222) squarely affects investors’ ability to pursue claims collectively as a class: whether, in order to rebut the presumption of reliance originated by the Court in the landmark Basic v. Levinson decision, defendants bear the burden of persuasion—as every circuit court to address the issue has held—or whether they bear only the much lower burden of production, as Goldman Sachs argues. The burden of production is easily satisfied by the mere recital of words or the introduction of evidence without actual persuasive effect.

When interpreting statutes, the Supreme Court and the circuit courts sometimes create presumptions to best effectuate congressional intent. That is exactly how the Basic presumption came to be. The Court determined that the congressional policy embodied in the Securities Act of 1934 called for the full and accurate disclosure of information related to securities to promote the integrity of the market and the setting of “just” prices. The Court reasoned that advancing that goal would best be achieved through a presumption of class-wide reliance if plaintiffs show, among other things, that a defendant made material misrepresentations that affected a security’s price.

Pomerantz argues that Federal Rule of Evidence 301, which shifts the burden of production but not that of persuasion, is merely a default rule that, by its own terms, is inapplicable because the substantive law at issue necessarily demands that the defendants actually show, i.e., prove, that the presumption is defeated. It would be palpably unfair – and inconsistent with the reason behind the Supreme Court’s creation of the presumption in the first place – to impose on investors the high burden of satisfying the presumption, only to have defendants overcome it by merely introducing some evidence creating a dispute as to price impact.

“Institutional and retail investors alike have the right to hold those that defraud them accountable,” said Emma Gilmore, the Pomerantz Partner spearheading the effort, “and pursuing their claims as a class has been a critical step in their pursuit of justice.”

Read Pomerantz’s full amicus brief to the Supreme Court at pomlaw.com/AmicusMar2021.

Q&A: Christopher Szechenyi

POMERANTZ MONITOR | MARCH APRIL 2021

By The Editors

Pomerantz’s Director of Investigations Christopher Szechenyi manages a global team of investigators who are devoted to uncovering fraud, misleading statements, and other acts of misrepresentation by corporations and their officers. He and his team have conducted hundreds of witness interviews for the Firm’s securities fraud cases, which produced significant settlements for plaintiffs. Prior to his 20 years of experience as a private investigator, Chris served as a producer for Mike Wallace at 60 Minutes and learned his chops as a fearless, award-winning investigative reporter in Chicago.

Monitor: Can you share your journey from community newspaper reporter to Mike Wallace’s producer at 60 Minutes?

Christopher Szechenyi: My first beat as a newspaper reporter was covering science, medicine and health care. At the Columbia Daily Tribune, I co-wrote a three-part series, called “Public Trust, Private Profits,” about the county hospital’s publicly elected board of trustees, who were feathering their own nests in secret, sending the hospital’s business to their own private companies without any public bids or public knowledge. It led to the resignation of the hospital administrator and an outside company taking over the day-to-day operations of the hospital. After that I became a full-time investigative reporter and editor in Chicago, where I exposed a group of construction companies that were sending their employees sixty stories underground without testing the air for noxious gases, without ventilating the shafts or the giant sewer tunnel they were building, and without equipping the men with ventilators and gas masks. The repeated pattern of safety violations by the same companies led to the deaths of ten people. OSHA fined these companies as little as a dollar for killing a worker. They were never charged criminally. None of this had come to light before. The newspaper series won a national award for investigative reporting and prompted changes on a national level. It also caught the eye of other journalists, including those at the CBS station in Minneapolis. My first story there – based on lawsuits and disciplinary records – revealed that a small group of police officers, nicknamed “thumpers,” had repeatedly beaten citizens in horrific ways. In 1993, I landed an incredible job in Paris as a producer for Mike Wallace on 60 Minutes, one of the best jobs in journalism. Of all the stories, I am most proud of one where I obtained the confidential audits of the United Nations about tens of millions of dollars of waste and fraud at the UN. It took a week to cultivate the source who had the audits and dropped them off with my hotel’s concierge hotel in a brown paper envelope to remain anonymous.

M: What led you from journalism into investigations?

CS: Curiosity is the main motivating factor in both journalism and private investigations. They both consist of uncovering the unknown, finding the truth and exploring a world that we really know little about. From a young age growing up in New York City, my parents and grandparents, who were immigrants from Europe after the war, exposed me to many different cultures, people and places. My family gave me the ability to talk with anyone, and the kind of passion, persistence and empathy one needs to succeed as a journalist and as a private investigator.

During high school, I wanted to follow in the footsteps of Jacques Cousteau as an oceanographer. As a high school senior, I travelled aboard a ship from Woods Hole Oceanographic in Cape Cod to Bermuda aboard one of its research vessels. I traveled across the Indian Ocean, conducting research on ocean currents. That experience made me realize my strength was in translating the complexities of science into news and feature stories. I then made the jump from journalism in 2001 to a boutique law firm in Boston where I served as Director of Investigations. Another new world opened up - this time involving terms like channel stuffing and premature revenue recognition, and the financial frauds at Enron and Worldcom.

M: How did your experience at 60 Minutes prepare you for the work you do now?

CS: Mike Wallace set the pace for being passionate about his work, a characteristic I already shared. But this man, with whom I worked when he was 75 years old, never stopped working. Weekends, morning, noon and night. He loved his job. To succeed at 60 Minutes, it’s all about producing the best stories. You’re only as good as your last story and your next one. So that level of intensity is what I bring to this job as a private investigator every day. I place a high emphasis on productivity and consider each of the attorneys with whom I work to be my Mike Wallace.

The other aspect of working for 60 Minutes that contributes to my work today is the ability to develop contacts on a worldwide basis. Not only have I built a team of 10 outstanding investigators and researchers in the United States – the best in the business – whom I recruit, train, and coach on a daily basis, but I also call on investigators with whom I have built a relationship in London, Geneva, Hong Kong, Munich, Moscow and Mexico City to assist with Pomerantz’s international cases. One of those investigators happens to be Megan Wallace, Mike’s granddaughter.

M: What are you looking for when investigating a company for potential securities fraud violations?

CS: One word: scienter. We are looking for evidence that the individual defendants, usually the CEO and CFO, and senior management, knew about the fraud, directed it or ignored it. To derive that information, each interview we do with lower-level former employees adds a piece to the puzzle. The attorneys take our pieces – the memos we write – and put together the big, complete picture of the puzzle in a narrative.

M: Is there one investigation of which you are particularly proud?

CS: The CEO of Polycom had been fired for misusing the company’s funds, an unusual step for a publicly traded company. We investigated and learned he had his administrative assistant buy fancy Hermès ties for customers, but instead kept them for himself. It wasn’t enough to fire him, however. We also learned he was unfaithful to his wife. So, after thinking about who would really know the details about his financial shenanigans, I thought, “I bet his wife would know.” I called her up one weekend in a fancy ski town, and the first thing she said: “I am his ex-wife, and he is the biggest liar you will ever meet.” I asked her for details about his misspending and she gave me a prelude to what the SEC later charged him with: $80,000 for personal travel and entertainment (his ex- wife told me who charged the company for a trip to Bali, among other places); $10,000 for clothing and accessories; $5,000 for spa gift cards; and $10,000 for tickets to professional baseball and football games he falsely claimed to have attended with clients.

M: What is the biggest misunderstanding that people have about being an investigator?

CS: It’s not about hiding in the trees and taking pictures of cheating spouses, which by the way, I’ve never done. In this practice, it’s all about analyzing the case; figuring out who would be the best potential sources; finding their names, titles and phone numbers; and then calling them to talk in great detail, which requires a private investigator to earn their trust. It takes persistence, patience and the ability to connect with people in every corner of the world and in every industry on earth from mining diamonds to mining data.

85 Years — A Long History of Setting Precedent

POMERANTZ MONITOR | MARCH APRIL 2021

By The Editors

In celebration of the founding of the Pomerantz Firm 85 years ago, the Monitor will feature a highlight from its history in each issue in 2021.

In the last issue, we began at the beginning, following Abe Pomerantz’s journey from a one-room office to his status as “dean” of the plaintiffs’ bar.

Today, we’re looking at two early Pomerantz cases that set key precedents for investors rights — Ross v. Bernhard and Gartenberg v. Merrill Lynch.

In 1969, Partner William E. Haudek appeared before the Supreme Court in Ross v. Bernhard, litigation which secured the groundbreaking decision that guaranteed injured investors the right to a jury trial in derivative actions. The issue before the court was whether the Seventh Amendment to the Constitution, which provides for the right of trial by jury in cases where the value in controversy exceeds twenty dollars, also applied a right to a jury trial in stockholders’ derivative actions in which the actual damages may not come in a monetary form.

Pomerantz successfully argued that the Seventh Amendment did apply, with Justice Byron White writing the Court’s opinion, that “the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.”

Justice White further wrote:

Derivative suits have been described as one kind of ‘true’ class action. We are inclined to agree with the description, at least to the extent it recognizes that the derivative suit and the class action were both ways of allowing parties to be heard in equity who could not speak at law. ... Given the availability in a derivative action of both legal and equitable remedies, we think the Seventh Amendment preserves to the parties in a stockholder’s suit the same right to a jury trial that historically belonged to the corporation and to those against whom the corporation pressed its legal claims.

And so it was ordered by the Supreme Court that shareholders have a right to a jury trial in derivative actions.

Gartenberg v. Merrill Lynch was a major victory for investors that first came disguised in defeat. Yes, Pomerantz lost this case but set important precedent that would be recognized and codified into law by the Supreme Court twenty-nine years later.

In 1981, with Partner Stanley M. Grossman serving as plaintiffs’ lead counsel, Pomerantz brought to trial the first case ever tried under the newly enacted Section 36(b) of the Investment Company Act of 1940, in which the Firm argued for a standard of fiduciary duty owed by investment advisors to mutual funds. Plaintiffs argued that Merrill Lynch had violated its fiduciary duty by levying fees that were disproportionately high based on the services it rendered. In other words, the investment advisors were making “too much money” off their clients.

After a bench trial, U.S. District Judge Milton Pollack ruled for defendants, finding that ‘’The compensation paid is high as a matter of numbers but the payment is lawful relative to the gargantuan size of the fund.’’ On Pomerantz’s argument in the case, Judge Pollack added: “[I] can fairly say, having remained abreast of the law on the factual and legal matters that have been presented, that I know of no case that has been better presented so as to give the Court an opportunity to reach a determination, for which the Court thanks you.”

In 2010, the Supreme Court, in Jones v. Harris Associates, turned back to Stan’s argument to adopt “the Gartenberg standard” as the specific standard for assessing whether mutual fund advisors breach fiduciary duties by charging excessive fees. In drafting the High Court’s unanimous opinion, Justice Samuel A. Alito Jr. wrote “we conclude that Gartenberg was correct in its basic formulation of what §36(b) requires: to face liability under §36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.”

And with that, “the Gartenberg standard” became, so to speak, the law of the land.

Protecting Investors in a Globalized World

POMERANTZ MONITOR | JANUARY FEBRUARY 2021

By Jeremy A. Lieberman

European Pensions, Europe’s highly regarded information source for pension decision makers and fiduciaries, has honored Pomerantz with its inaugural 2020 Thought Leadership Award. European Pensions selected Pomerantz as the first recipient of this award in recognition that the Firm “has demonstrated the possibility to make a real, material difference to the pension fund space.”

Here, Pomerantz Managing Partner Jeremy Lieberman reflects on the current landscape of global securities litigation and what it takes to protect investors in a globalized world.

In the last several decades, the landscape of global securities litigation has changed dramatically, both in terms of the remedies available to international investors for losses to their portfolios due to fraud and the appetite of investors outside of the United States to pursue litigation.

Since 1995, more than $95 billion has been recovered in securities class actions litigated in the U.S. on behalf of defrauded investors. With landmark recoveries making international news – $6.1 billion in Worldcom in 2005, $7.2 billion in Enron in 2008 and Pomerantz’s $3 billion 2018 settlement in Petrobras – investors outside of the U.S. began to ask: what does this mean for us?

The different rules regarding class action securities litigation in different jurisdictions complicated the path for shareholders around the world wishing to learn about their rights. Further, there were cultural barriers to overcome. Decades ago, many European institutional investors viewed their litigious American counterparts as too aggressive and preferred not to “dirty their hands” in the same way. They tended to accept not being able to participate in recoveries as mere bad luck. While that was the common wisdom then, modern and sophisticated European institutional investors are increasingly proactive. With so much money on the table, they are seeking solutions not just out of best practice but out of fiduciary duty to obtain recoveries for their funds.

In 2010, the U.S. Supreme Court’s decision in Morrison v. Nat’l Australia Bank Ltd. barred use of the U.S. federal securities laws to recover losses from investments in foreign-traded securities. This ruling exacerbated the sense of unfairness already felt by investors outside of the U.S. Their rights would not be protected, nor could they recover losses, if they purchased shares in the very same company on a non-U.S. exchange as investors that purchased on a U.S. exchange.

The first test of how to deal with the Morrison hurdle arrived almost before the ink on the decision had time to dry. On April 20, 2010, BP’s Deepwater Horizon oil rig explosion and resulting oil spill devastated countless lives and caused immeasurable economic and environmental damage. It also impacted investors. Within weeks, the price of BP’s ordinary shares and its American Depository Shares (“ADS”) plummeted nearly 50%, driven down by revelations that BP’s prior statements regarding its commitment to safety and its ability and preparedness to deal with a large oil spill were misleading.

Although the U.S. federal securities laws protected purchasers of BP’s ADS, which trade on the New York Stock Exchange, the same was not true for the purchasers of BP’s ordinary shares, which trade on the London Stock Exchange (“LSE”). For investors that purchased BP common stock on the LSE, they seemed to have no legal options in the U.S. courts.

Pomerantz responded by developing a new legal theory, placing it at the vanguard of ground-breaking litigation. Through a series of hard-fought victories, Pomerantz secured the right of its clients, both foreign and domestic, to pursue English common law claims in a U.S. federal court to recover their losses in BP’s London-traded common shares and its ADS. This marked the first time, post-Morrison, that institutional investors had been permitted to pursue foreign claims seeking recovery for foreign-traded securities in a U.S. court. The case has now been resolved, with favorable recovery for LSE investors that otherwise would have recovered nothing under Morrison.

Morrison had further consequences for investors of dual-listed shares – a staple feature of most global portfolios. Dual-listed shares (shares traded on more than one exchange) afford institutional investors the opportunity to execute trades on the venue offering the most favorable trading hours, pricing and liquidity at any given moment. However, under Morrison, purchasers of the same dual- listed stock, traded at the same time and injured by the same fraudulent misrepresentations and omissions, might have very different remedies, depending on which exchange shares were bought. Those that purchased on a U.S. exchange would be able to join together with other similarly situated investors to collectively seek compensation in a U.S. class action. Investors purchasing on a foreign exchange, under Morrison, were generally left only the expensive and daunting option of pursuing claims individually in a foreign court likely to be less familiar with and less favorable to securities fraud litigation than those in the U.S.

Continuing its pursuit of justice for defrauded European investors, in 2019, Pomerantz set historic precedent for investors in the dual-listed shares of Perrigo Co. plc, when a U.S. federal court certified parallel classes of investors that purchased Perrigo shares on both the U.S. and the Tel Aviv Stock Exchange. The ruling was the very first to certify a foreign purchaser class since Morrison. Since then, Pomerantz also successfully achieved certification for parallel classes of investors in a securities class action against Ormat Technologies, Inc., in which the Firm recently achieved a favorable settlement for investors.

In addition to the barriers to recovery for international investors set by Morrison, there have been efforts by the U.S. Chambers of Commerce – a big-business-supporting lobbying group – and the U.S. Congress, to clip the wings of securities class actions. However, they have unwittingly created a monster, spawning new litigations to protect and vindicate investor rights within and beyond the U.S.

Legal counsel must be creative in handling these issues and arriving at solutions that are favorable for international investors. The answer, in some cases, is to bring securities fraud cases in jurisdictions outside of the U.S. Pomerantz is currently representing international clients in international litigations, including, among others, against BRF S.A. (Brazil), Wirecard (Germany), Deutsche Bank AG (Germany), Danske Bank (Denmark) and Tesco PLC (U.K.).

The Delaware Court of Chancery Strikes Back

POMERANTZ MONITOR | JANUARY FEBRUARY 2021

By Daryoush Behbood

Section 220 of the Delaware General Corporation Law is a powerful statute that allows stockholders to inspect suspected wrongdoing at Delaware incorporated public companies. With this statute, Delaware stockholders are given the right to inspect a company’s books and records, which can range anywhere from board meeting minutes to communications with government officials about a pending corporate investigation. Such inspection permits stockholders to make an informed decision and determine whether to engage in litigation or otherwise demand remedial action.

Of course, the inspection right provided by Section 220 is not without limitation, and certain elements must be demonstrated before a court will give a stockholder free access to a company’s internal, and many times highly confidential, documents. When a stockholder seeks inspection for the purpose of investigating corporate wrongdoing, one such element a stockholder must demonstrate is a “credible basis” to suspect possible wrongdoing.

In February 2020, Pomerantz, on behalf of its client, served Gilead Sciences, Inc., a company focused on researching and developing drugs used in the treatment of viruses such as HIV, with a Section 220 books and records demand. According to the demand, Gilead adopted a business model that sought to protect its profits and market share at the expense of the very patients its HIV treatments were supposed to help. In so doing, Gilead allegedly violated state and federal antitrust laws; became the focus of massive antitrust lawsuits; delayed the development of safer HIV drugs to extend the profitability of the company’s existing HIV treatments; and was accused of infringing on the U.S. Government’s patents for HIV treatment regimens. Four other stockholders served similar demands.

Given the expansive accusations pending against Gilead, the stockholders believed that they easily satisfied the “credible basis” standard, which, as the Delaware courts have repeatedly noted, is the “lowest possible burden of proof.” Unfortunately, Gilead refused to produce a single document. Thus, Pomerantz’s client and the four other stockholders filed Section 220 complaints in the Delaware Court of Chancery seeking documents related to the above allegations. In response to the stockholders’ complaints, Gilead (as the Court would later note in its opinion granting the stockholders’ demands) “launch[ed] a number of peripheral attacks designed to chip away at the [stockholders’] proper purposes” and even attempted to argue that each of the five stockholders was merely serving as a passive conduit in a purely lawyer-driven inspection effort.

The entire purpose of a Section 220 books and records demand is for the stockholder to determine whether any case exists for the stockholder to pursue. In other words, determine whether any wrongdoing actually exists in the first place. In that vein, the Delaware Court of Chancery has made clear that Section 220 court proceedings are intended to be “streamlined, summary proceedings.” They are supposed to move swiftly and be “promptly tried.”

In its opinion released this past November 2020, the Delaware Court of Chancery noted that Gilead’s defense strategy frustrated that purpose and ordered Gilead to provide the stockholders with many of the corporate internal documents they requested earlier in the year. Unfortunately, many Delaware stockholders (like the Gilead stockholders) seeking to inspect a corporation’s books and records have had to endure many of the same aggressive, scorched earth, defense tactics that Gilead imposed. The Court took notice, stating that “Gilead’s overly aggressive defense strategies epitomizes a trend” whereby “defendants are increasingly treating Section 220 actions as ‘surrogate proceeding[s] to litigate the possible merits of the suit’ and ‘place obstacles in the plaintiffs’ way to obstruct them from employing it as a quick and easy pre-filing discovery tool.’”

The Court continued, in words that are surely to raise eyebrows in many Delaware boardrooms:

Defendants like Gilead adopt this strategy with the apparent belief that there is no real downside to doing so, ignoring that this court has the power to shift fees as a tool to deter abusive litigation tactics. Gilead’s approach might call for fee shifting in this case, and the plaintiffs are granted leave to move for their expenses, including attorneys’ fees, incurred in connection with their efforts to obtain books and records.

In so holding, the Court not only found that each of the five stockholders demonstrated a credible basis to suspect potential wrongdoing and established a proper purpose for conducting the Section 220 investigation, but that Gilead’s defense strategy may have involved “bad faith conduct.” As the Court explained, Delaware courts follow the “American Rule.” That is, “each party is generally expected to pay its own attorneys’ fees regardless of the outcome of the litigation.” However, the Court “retains the ability to shift fees for bad faith conduct ‘to deter abusive litigation and protect the integrity of the judicial process.’” The Court held that Gilead’s “overly aggressive litigation strategies by blocking legitimate discovery, misrepresenting the record, and taking positions for no apparent purpose other than obstructing the exercise of plaintiffs’ statutory rights” opened the door for fee shifting, and granted the stockholders leave to move for attorneys’ fees.

The implications of the Court’s striking opinion remain to be seen. But stockholders and their counsel alike surely hope it will have the deterrent effect the Court most assuredly intended.

Q&A: Louise Howard, Interviewed by Jennifer Pafiti

POMERANTZ MONITOR | JANUARY FEBRUARY 2021

By Jennifer Pafiti

Partner and Head of Client Services Jennifer Pafiti interviewed Louise Howard, the Chief Legal Officer for Universities Superannuation Scheme (Ltd). The USS pension scheme manages over £67 billion on behalf of over 400,000 active and retired academic and academic-related staff from universities in the United Kingdom. USS served as a highly engaged and effective lead plaintiff on behalf of the class in the historic Petrobras settlement, helping achieve a $3 billion recovery for defrauded investors.

Jennifer Pafiti: Please share a little bit about your journey and what led you to your role today at USS.

Louise Howard: I began my professional life as a pensions lawyer. On qualification, it was a toss-up between property finance or pensions and, in the fool-hardiness of youth, I choose the most difficult of the two “so that I’ll never get bored.” I couldn’t have appreciated quite how right that prediction would be! In all my 16 years in private practice, I genuinely do not think I was ever asked the same question twice, and so every new request was a complete greenfield. As for my move to USS, like most good things, it came by chance. Around 2003, “Fiduciary Management” was a rapidly growing new business area being marketed to UK defined benefit pension funds. I found several of my clients approached with differing levels of information about what the trustees of these funds were actually buying into. So that trustees could make informed decisions, I became active on the conference circuit, speaking about how particular fiduciary management models may impact their legal duties. That led to me being approached for the newly created role at USS. I’ll always remember the call as I was on the beach with my young daughter, who had just been stung by a wasp moments before, so when I answered, I think I was probably the most “no-nonsense” version of me!

It was a fantastic opportunity as, even though USS had been established in 1974, it had not had any internal legal support at all until the end of the noughties, and that was then just focused on investment management activity. From 2014 onwards, there was a move to strengthen the control environment in general and broaden the internal legal support to the pensions business in particular. We now have a 15-strong legal team that covers everything from in- vestment legal work to pension fund administration, commercial and contractual work to employment and data protection law. And the rest is history ...

JP: Can you take us to the Car Wash?

LH: The Car Wash is so-called because it was inspired by the car valet business inside my local shopping mall. They have a set of giant posters detailing each of the levels of cleaning you can buy — bronze, silver or gold — each detailing the specific services you would get and, of course, the price you pay for each. I thought to myself that we could categorize the different work we are asked to do, just like the car wash, and then be very clear with our business colleagues what level of engagement they could expect from us. It means we operate transparently and consistently. There are other benefits, of course as well. It can help us plan our resourcing — if the business wants lawyers on more than just a handful of gold standard deals or projects, we will need some extra pairs of hands, or the business might need to prioritize. It’s all very logical, and as such, people can engage with it well, both in the team and in the business.

JP: What is the most important takeaway for institutional investors from the newly revised 2020 U.K. Stewardship Code?

LH: The key takeaway for me is how much further this goes in terms of reach. Asset owners will no longer be able to remain well-meaning but essentially sedentary. The ambit of the Code, now stretching beyond just-listed equities, as well as the granular level of detailed narrative reporting that will be required, represent excellent improvements. But I’d caution that institutional investors should not underestimate the effort that will be involved.

JP: On a related note, what has been the Financial Conduct Authority’s biggest impact on USS?

LH: The Trustee Company’s subsidiary, USS Investment Management Limited, created in 2012, is the entity authorized and regulated by the FCA. It is a special category of firm with a more limited range of permissions than a full scale, multi-client investment manager would have due to having only one client, the Trustee Company. Due to the size of assets under management, USSIM became subject to the new Senior Managers & Certification regime as an “Enhanced Firm.” There are fewer than 1% of firms in that category, and it means that we are subject to the most onerous set of requirements, broadly equivalent to those in force for banks.

A tremendous amount of effort over 12 months went into preparing for the introduction of the new regime, which focusses on senior managers, and a broader population of certification staff, each of whom must be certified as “fit and proper” to perform their role. At the end of that period, we had identified USSIM’s Senior Managers, created a Management Responsibility Map and Statements of Responsibilities, ensuring there were appropriate ‘reasonable steps frameworks’ in place. In addition, we had identified our Certified Persons and prepared for their annual fit and proper assessments and trained all relevant staff on what the regime means for each individual.

JP: Can you speak a little about the effort that goes into the valuation process that the fund is mandated to go through every three years?

LH: It seems a distant memory now, and almost like a fairy tale, but at the start of my career, my work was largely around helping employers access the huge excess reserves that had built up in defined benefits funds as legislation at the time required them to be reduced. Things changed very quickly at the turn of the century, and we started facing deficits in these pension plans. Now UK funds are required by law to undertake a valuation every three years and put in place the contributions revealed by that valuation to be necessary to fund future benefit provision and also fund any deficit concerning historic liabilities. For most plans, this has become an increasingly difficult job, not just because of the inherent uncertainty that comes with trying to price today a benefit that will be paid out many, many years in the future. But we have seen in investment cycles the resulting contribution numbers becoming increasingly painful because of the lack of certainty. The scale of a valuation for a scheme of our size, with close to £70 billion in assets (as of March 2019) and over 400 employers, is immense, and the volume of work and the complexity of the challenges are relentless.

JP: What do you see as the biggest issue facing public pension funds today or in the near future?

LH: It has to be affordability. And I mean for all, sponsors and members. We all still would like the comfort of financial security in the future, but, in my view, with the levels of uncertainty we are facing, that seems an even greater uphill struggle than it has ever in the past. A sobering thought, but we just must keep on doing the best we can for our members.

The Short Squeeze, Stonks and Democracy

POMERANTZ MONITOR | JANUARY FEBRUARY 2021

By The Editors

As this issue of the Monitor goes to press, the stock market continues on a wild ride that began with hedge funds shorting the stock of GameStop, a struggling company whose brick-and-mortar stores sell video games in shopping malls.

To short a stock is to bet that its value will go down. An investor borrows a stock, sells it, and then buys it back to return it to the lender. If the stock is less expensive when the investor sells, the investor profits. Sophisticated investors might identify a flaw in a strong company’s operations before the rest of the market and short its stock, betting that their prescience, once it plays out, will pay big. Noting the flaws in GameStop’s business model, however, did not require much discernment. Expecting customers to travel to strip malls to buy a physical product in the digital age is tilting at windmills; add a pandemic and it becomes a Herculean task. But even though GameStop’s shares were already low when the hedge funds swept in, even a small per share profit, when multiplied exponentially, adds up.

Meanwhile, day traders, transacting in stocks on their cell phones via online, no-fee platforms like Robinhood and E-Trade, were watching the hedge funds watch GameStop. Convening on online message boards such as Reddit’s WallStreetBets, they determined to stick it to the man — namely, the hedge funds — and make some quick money while doing so. Over several months, a large, broad, and loosely cohesive group of day traders devised a strategy for a “short squeeze”: they would buy volumes of GameStop shares to push up its price, and in so doing force the hedge funds to cover their position by rushing to buy back shares, which would further push up the price.

Many of the amateur investors have been placing option bets to bet against the shorts. A call option is a contract that gives the owner the right to buy a specific amount of stock at a specific price by a specific future date. If the price rises, the trader can buy the stock at the set price — now a bargain — and sell it for a profit (or sell the option contract itself). The brokers who sell the options, as a rule, own enough stock to be ready when traders exercise their options. In the GameStop scenario, where the price skyrocketed, those brokers, too, have to buy more stock now to mitigate the burn of having to buy too many expensive shares at one time later. This increases demand, which again increases the price.

The financial flash mob’s plan worked. Shares of GameStop skyrocketed 400% in the last week of January, ending the month with a staggering 1,625% gain. At least one hedge fund, Melvin Capital Management, having lost billions, threw in the towel on its GameStop position. Keith Gill, the 34-year-old suburban father and financial adviser who ignited the GameStop buying frenzy with YouTube videos under the name Roaring Kitty, is now — at least on paper — a multimillionaire.

Meanwhile, a day after GameStop shares rose 135%, Robinhood, the free-trading pioneer purportedly founded to democratize trading, restricted trading on its app in GameStop and other highly shorted securities, only allowing users to close out their positions, while those investors not tied to their app were still free to invest. Robinhood, which is backed by venture capital, said in a statement that these restrictions were made to comply with the regulations that govern it, including capital obligations mandated by the SEC. Indeed, over the last few days in January, Robinhood raised $3.4 billion, most likely to cover heightened margin requirements that may have been imposed by the Depository Trust & Clearing Corporation, the central clearing facility for the stock market.

Day traders staged protests, accusing Robinhood of being in league with the “suits” of Wall Street. The broker’s move also engendered rare bipartisan accord in Congress, with both progressive Democrats and populist Republicans condemning Robinhood. Democratic Senator Elizabeth Warren said:

What’s happening with GameStop is just a reminder of what’s been going on on Wall Street now for years, and years and years. It’s a rigged game. We need a market that is transparent, that is level and open to individual investors. It’s time for the SEC to get off their duffs and do their jobs.

The GameStop story, though, is not simply a tale of Wall Street vs. the Degenerates (as the community on Wall- StreetBets call themselves). Elon Musk, the richest man in the world, fanned the fires with a single-word tweet on January 26 and a hyperlink to WallStreetBets. The word? Gamestonk. Stonks, an intentional misspelling of stocks widely used on Reddit forums, mocks Wall Street’s seriousness, and Musk’s tweet made him an unlikely anti-establishment hero to Redditors.

Some day traders have claimed they bought GameStop for “lolz” — the fun of it. Others jumped in for FOMO once the price started to soar. But many cite having been embittered by the 2008 financial crisis, the subsequent bailout of the big banks, and the failure to hold those responsible accountable.

At the time of writing, it remains to be seen where the GameStop saga will end. Some hedge fund CEOs have had their eyebrows singed, a few day traders got rich, but many analysts predict that those day traders who still have long positions will lose big.

How efficient is a market in which the value of a stock has no relation to a company’s fundamentals? And what can regulators do when an inflated price is not the result of fraud? The SEC now finds itself in the position of seeking potential areas of liability. As Dean Seal wrote in Law360, “The novelty of the situation itself will stand as a test for a regulator in transition — determining what role the SEC has in a seemingly ideological trading war between the mom-and-pop traders it is sworn to protect and the old guard of Wall Street.”

85 Years — A Long Tradition of Innovation

POMERANTZ MONITOR | JANUARY FEBRUARY 2021

By The Editors

In celebration of the founding of the Pomerantz Firm 85 years ago, the Monitor will feature a highlight from its history in each issue in 2021.

Let’s start at the very beginning. In 1926, Abraham Louis Pomerantz, a young graduate of Brooklyn Law School, hung up his shingle in New York City. For years, he shared one small room and a stenographer with three other young lawyers. When one of lawyers had a client visit, the other three would make themselves scarce. But there weren’t many clients in those early days, and the four spent much of their time playing knock rummy.

One day in 1932, Celia Gallin, the widow of Abe’s high school gym teacher, walked in the door. Her husband had left her 20 shares of stock in the National City Bank of New York (today’s Citigroup). Before the market crash of 1929, they had sold for $585 a share; now, in the Great Depression, they traded at $17. Gallin thought there must be someone she could sue to get her money back. Unfortunately, there was not, Abe told her.

A few months later, Ferdinand Pecora took over as Chief Counsel for what had been a bumbling, ineffective Senate probe of the causes of the stock market crash. As Michael Perino, the author of Ferdinand Pecora, the Hellhound of Wall Street: How Ferdinand Pecora’s Investigation of the Great Crash Forever Changed American Finance, wrote:

In just a few weeks Pecora turned the investigation around. His first target was City Bank and its Chairman, “Sunshine” Charlie Mitchell. After a whirlwind investigation, Pecora chronicled how Mitchell and the bank’s other executives had manipulated stocks, dodged taxes, ripped off their shareholders, and collected enormous bonuses for peddling shoddy securities to unsuspecting American investors.

Realizing the opportunity that opened up, Abe quickly called Gallin. He still couldn’t get her money back, but he hoped to effect retribution by convincing the court to force the bank’s executives to return their bonuses. Retaining the well-known New York lawyer David Podell to try the case, Abe brought a derivative suit against National City Bank, relying on the disclosures from the Pecora hearings. Abe and Podell won, clawing back $1.8 million in bonuses from the bank’s executives.

A few months later, Pecora held hearings on Chase Manhattan Bank. Abe brought a derivative lawsuit alleging the same wrongdoing Pecora had revealed. The bank settled. Abe thereafter decided to specialize in stockholder suits, and thus began the Firm as we know it.

Again, according to Perino:

In the worst depths of the Great Depression, Pecora paraded a series of elite financiers before the Senate Banking and Currency Committee. The sensational disclosures of financial malfeasance galvanized public opinion for reform and led to passage of the first federal securities laws and the Glass-Steagall Act.

...
Until his death in 1982, Abraham Pomerantz was one of the leaders of the plaintiffs’ bar. He helped pioneer derivative suits brought by small shareholders against publicly traded corporations, and the law firm he founded remains a major player in the field.

In 1946, “on the strength of his familiarity with complicated financial transactions and his reputation as a tenacious trial lawyer,” the United States Government appointed Abe as Deputy Chief Counsel (Economics) at Nuremberg. As such, he was senior trial counsel in all cases against German industrialists for collaborating in Nazi war crimes. He left after eight months, frustrated that the prosecutions were impaired by inadequate human and financial resources. Abby Mann, in his introduction to his screenplay, Judgment at Nuremberg, wrote, “The first time I gave Nuremberg any thought was when I met Abraham Pomerantz at a dinner party in New York in 1957. Pomerantz had been one of the prosecutors in the last trials at Nuremberg when the defendants included diplomats, doctors and Judges.”

In 1965, Variety Magazine, which as a rule covered theater and film, sent reporter Ronald Gold to cover a trial that Abe was litigating. Gold wrote it up as a movie review:

Though he doesn’t get top billing, Abe Pomerantz, playing one of two lawyers for a couple of worried investors, does the standout job. Managing to be both breathless and stentorian, the gray-haired portly veteran delivers a ringing indictment of legalistic trickery, all the while letting the audience know that along with his sincere emotion he’s just as clever as the opposition.

In a 1968 feature in Fortune Magazine titled “Abe Pomerantz is Watching You,” Spencer Klaw opined:

If the past is any guide, at one time or another during the next year the officers or directors of scores of large, publicly held corporations will be handed a depressing legal document. It will inform them that they have been named as defendants in a minority-stockholder suit. The news will be particularly depressing if the plaintiff is represented by Abraham Pomerantz... Pomerantz has been suing corporate insiders for thirty-five years, and in four out of five cases the defendants have had to pay sizable amounts of money out of their own pockets.

Abe was often in the spotlight, as in the lively February 1977 interview segment, “Lancelot at Law,” on Wall Street Week with Louis Rukeyser. On his death in 1982, the New York Times described Abe as “an articulate courtroom orator who reveled in fencing with his political and legal adversaries.”

The late, and esteemed attorney Milton S. Gould eulogized Abe:

The stockholders’ derivative action flourished under the leadership of men like Abe Pomerantz ... and it continues to flourish. I think an enlightened view of its function and usefulness is that the cause of action has proved to be the most effective instrument we have in protecting corporate ownership from misconduct in corporate management. From those cases have evolved useful concepts of fiduciary loyalty and the need for honest full disclosure ... Abe Pomerantz became a hero, and his name became a synonym for the successful prosecution of the plaintiff’s derivative suit.

In 2015, eighty-three years after Celia Gallin first walked into Abe’s office looking for justice, John C. Coffee, Jr., Professor of Law and Director of the Center on Corporate Governance at Columbia University Law School, wrote in Entrepreneurial Litigation: Its Rise, Fall, and Future:

If this book has found one unassailable hero within the plaintiffs’ bar, it was probably Abe Pomerantz.

Are Codes of Conduct Toothless Tigers? A Call for Reform

POMERANTZ MONITOR | NOVEMBER DECEMBER 2020

By Marc I. Gross

In the wake of the Enron debacle, Congress compelled companies to adopt codes of conduct intended to reform corporate governance and thwart recurrence of frauds upon investors. While the Sarbanes-Oxley Act of 2002 focused solely on misconduct by CFOs, the SEC expanded the scope of mandated codes to include all senior executives. The NYSE in turn required codes to be enacted by all listed companies, and the Council of Institutional Investors recommended model codes for a wide range of conduct.

Yet, with too few exceptions, courts have tossed this corporate governance tool into the dustbin, barring investors from recovery for securities fraud upon revelation of executive misconduct in violation of codes despite significant stock price declines. Courts have characterized such codes as mere aspirations, unworthy of reliance - more “puffery” than substance.

Pomerantz urges that this be remedied. Institutional investors should lobby the SEC or Congress to compel senior executives to certify personal and corporate compliance with the codes, just as they are required regarding the accuracy of financial statements and internal controls. This will shortcut the issue of whether codes of conduct are “actionable” statements. In the meantime, courts should otherwise recognize such claims and shift the focus to whether the company acted with scienter in failing to timely disclose material violations.

Examination of court decisions regarding sexual misconduct provides context for this issue.

The Good, the Bad and the Ugly

Sexual misconduct in executive suites may have been de rigeur during the Mad Men era, but is no longer tolerated. More recently, heads have rolled, causing stock prices to plummet with significant investor losses. Perhaps the most notorious recent episode involved McDonald’s, whose CEO Steve Easterbrook was fired in 2019 after admitting to a “consensual relationship” with an employee. Easterbrook nonetheless parted with a $40 million golden parachute. However, after further investigation, McDonald’s discovered that Easterbrook had lied about additional sexual relationships with employees, one of whom received substantial option bonuses. The company is now suing him to “claw back” his severance.

It remains to be seen how the investor lawsuits based on revelations of such misconduct, which are clearly contrary to codes of conduct, will fare. The Second and Ninth Circuit Courts of Appeal have generally upheld dismissal of such cases. Most recently, the CEO of Liberty Tax, Inc. was ousted after abusing his position to “date female employees and franchisees,” taking them “on business trips, ha[ving] sex with them in his office during work hours, and provid[ing] their friends and relatives with positions at Liberty.” When this misconduct was exposed and the company’s stock price fell, shareholders sued, claiming they had been misled by statements regarding the previous work of a compliance task that focused on the company’s internal controls and purported “commitment to ethics,” which had nonetheless failed to disclose investigation of such misconduct, e.g.:

Our compliance task force was very successful in analyzing, reviewing and evaluating the work of our compliance department and taking appropriate action to ensure that the standards of the Liberty brand are upheld and that those who do not uphold Liberty standards are exited from the Liberty system.

In upholding dismissal of this action, the Court of Appeals held that such statements regarding ethical commitments were “inactionable puffery on which no reasonable investor would rely in making investment decisions.”

The Second Circuit’s mauling of code of conduct/ethical behavior-based claims echoes similar outcomes in the Ninth Circuit in Retail Wholesale & Dep’t Store Union Local 338 Ret. Fund v. Hewlett-Packard Co. That case arose out of HP CEO Mark Hurd’s dalliance with a public relations employee (a former “adult film” actress) using the firm’s expense account, which led to his ouster and HP’s stock price decline. In dismissing the claims that such misconduct contradicted HP’s Standards of Business Conduct’s (e.g. “we make ethical decisions”), the Court held that:

Defendants made no objectively verifiable statements during the Class Period. As one court has aptly written, a code of conduct is “inherently aspirational.” . . . Such a code expresses opinions as to what actions are preferable, as opposed to implying that all staff, directors, and officers always adhere to its aspirations.

On the other hand, while the Courts of Appeals have chilled securities fraud cases based on violations of codes of conduct, some district courts have been more receptive. By way of example, in In re Signet Jewelers Ltd. Sec. Litig., Chief Judge Colleen McMahon refused to dismiss claims arising from the company’s widespread pattern of sexual harassment of female employees, including comments on breast size, invitations to hot tubs, and “sexcapades,” revelations of which caused significant stock price declines. Such behavior belied the company’s code of conduct, which represented that it was “committed to a workplace that is free from sexual, racial, or other unlawful harassment”; that “[a]busive, harassing, or other offensive conduct is unacceptable, whether verbal, physical, or visual”; and that adherence to the code, including by senior executives, was of “vital importance.” In denying a motion to dismiss, Judge McMahon held:

While generalized, open-ended or aspirational statements do not give rise to securities fraud (as mere puffery), statements contained in a code of conduct are actionable where they are directly at odds with the conduct alleged in a complaint.

Soon thereafter, the defendants moved again to dismiss, citing the intervening decision by the Second Circuit in Singh v. Cigna Corp. In that case, investors claimed that Cigna’s subsidiary’s Medicare fraud belied the company’s code of conduct, which expressly affirmed the importance of “compliance and integrity, and the “responsibility to act with integrity in all we do, including any and all dealings with government officials.” The Court of Appeals held that such statements were a textbook example of “puffery.”

Following renewal of the motion to dismiss, Judge McMahon held that, given their “context,” Signet’s statements rendered them more reliance-worthy than Cigna’s:

Significantly, Cigna did not rule (as Defendants imply) that all statements in codes of conduct qualify as “puffery.” Rather, the Cigna court expressly stated that “‘context’ bears on materiality.

* * *

Materiality depends upon a number of context- specific factors, including specificity, emphasis, and whether certain statements are designed to distinguish the company in some fashion that is meaningful to the investing public.

In so ruling, Judge McMahon borrowed a page from Judge Rakoff’s decision in In re Petrobras Sec. Litig. which grew out of widespread bribery at the Brazilian oil and gas company (a case in which Pomerantz, as lead counsel, achieved a $3 billion settlement for defrauded investors):

[W]hen (as here alleged) the statements were made repeatedly in an effort to reassure the investing public about the Company’s integrity, a reasonable investor could rely on them as reflective of the true state of affairs at the Company.

The question remains whether the reliance-worthiness of statements regarding ethics and integrity should depend on the precision of the statements. Clearly, sexual harassment and bribery are unethical, and investors should be entitled to presume that corporate executives are not engaging in such misconduct. As such, investors should also be able to bring lawsuits to recover stock price losses caused by disclosure thereof.

Pomerantz leads the securities class action against Wynn Resorts Ltd., its former CEO Steven Wynn, its former General Counsel, and other officers and directors. The case alleges that the defendants recklessly disregarded, or actively covered up, a years-long practice of sexual misconduct by its founder and CEO, Stephen Wynn. The suit was filed in the wake of an explosive Wall Street Journal article published in late January 2018 which detailed dozens of accounts by Wynn employees about this misconduct, which caused the company’s stock price to crash 10% that day, wiping out $2 billion in market capitalization. Although the company initially defended Steve Wynn, he was ultimately forced to resign in early February 2018. Extensive investigations ensued, by both the Nevada Gaming Control Board and Massachusetts Gaming Commission, which confirmed many of the Wall Street Journal article’s accounts and that “settlements” were paid to silence several accusers. Notably, Wynn was found to have paid $7.5 million to a former employee who claimed Wynn had forced her to have sex with him.

The complaint alleges that during the period of the alleged misconduct, the defendants falsely assured investors that the company had a rigorous code of conduct in place that required compliance with legal and ethical norms, and that the company had numerous policies and procedures to guard against sexual harassment and to investigate possible wrongdoing. In fact, the defendants failed to conduct investigations of the numerous complaints described above, in blatant violation of the code. Moreover, as we argued in our brief opposing defendants’ motion to dismiss, these misrepresentations were particularly material in the context of Wynn’s business – because the applicable gaming regulations require their operators to meet “suitability” requirements. If the company harbored “unsuitable” actors such as Steve Wynn, it would be at serious risk of losing its lucrative gaming license, the lifeblood of its business.

Unfortunately, on May 27, 2020, the court granted the defendants’ motion to dismiss, including the code of conduct allegations, finding that such “aspirational” statements were not actionable under the federal securities laws. Pomerantz filed a second amended complaint on July 3, 2020. The Firm is considering its options in the event the court dismisses the case a second time.

Policy and Other Factors Warrant Actionability of Code of Conduct Statements

There are also strong policy reasons why code of conducts should not be deemed mere window dressing by courts. Going as far back as the 1970s, Congress and commentators have recognized the important role that codes of conduct play in setting the tone for corporate culture and “tone at the top.”

Indeed, in the wake of Enron’s allowing its CFO Andrew Fastow to invest in off-balance sheet enterprises (contrary to the company’s stated policy against related party transactions), Congress compelled companies to adopt financial codes of conduct and to disclose when they were waived. In support of regulations implementing these requirements, and expanding them to all senior executives, the SEC stated:

Increase[d] transparency of certain aspects of a company’s corporate governance … should improve the ability of investors to make informed investment and voting decisions. Informed investor decisions generally promote market efficiency and capital formation.

(Emphasis added). As such, Congress and the SEC clearly presumed investors would rely upon such codes when making investment decisions.

Congress’ 1991 adoption of Federal Sentencing Guidelines further supports treating codes of conduct as substantive. Those guidelines provided that if a company is found criminally liable as a result of its employees’ unlawful actions, the company could reduce its penalty by showing that it had established an effective program to prevent and detect violations of law, including a code of conduct. The 2018 edition of the U.S. Sentencing Commission’s Guidelines Manual states that, in deciding whether to reduce corporate punishment, courts should evaluate whether the company has an “effective Compliance and Ethics Program” which entails “promot[ing] an organizational culture that encourages ethical conduct and a commitment to compliance with the law.” Further, the Manual states that an organization should take reasonable steps “to ensure that its compliance and ethics program is followed, including monitoring and auditing to detect criminal conduct” and should periodically evaluate the effectiveness of such program as well as provide incentives to “perform in accordance with the compliance and ethics program.”

Empirical studies evidence that investors attribute significant value to a corporation’s reputation for integrity. This is best demonstrated by the price reactions that occur when material violations of codes of conduct are revealed. A recent study by Shiu-Yik Au, Ming Dong, and Andréanne Tremblay, How Much Does Workplace Sexual Harassment Hurt Firm Value? concluded that firms with documented patterns of sexual harassment have experienced annual shareholder value loss of $0.9 to $2.2 billion. “High [sexual harassment] scores are also associated with sharp declines in operating profitability and increases in labor costs. These results indicate that sexual harassment has a highly detrimental effect on firm value.”

In sum, rather than disregarding codes of conduct, courts should recognize their reliance-worthiness. This does not mean that all violations will result in successful claims. Plaintiffs must still prove not only loss causation (i.e., that disclosure of the violations caused significant stock price declines), but also scienter (i.e., that defendants acted in reckless disregard of the code’s statements). Pomerantz also urges institutional investors to lobby corporations, Congress and the SEC to require senior executives to certify, to the best of their knowledge, compliance with such codes. 

Incentive Awards in The Era of Neo-Textualism

POMERANTZ MONITOR | NOVEMBER DECEMBER 2020

By Terrence W. Scudieri, Jr.

A class representative or lead plaintiff who invests time and effort in a case by retaining and monitoring counsel, actively participating in the discovery and settlement processes, and approving settlement offers on behalf and with the consent of a group of similarly-situated individuals, is entitled to a reasonable incentive award as compensation.

Until recently, the principle’s application to federal class actions suits was uncontroversial and unremarkable, even though Rule 23 of the Federal Rules of Civil Procedure does not expressly provide for incentive awards.

But on September 17, a three-judge panel sitting for the U.S. Court of Appeals for the Eleventh Circuit sent shockwaves through the federal plaintiffs’ bar when it held to the contrary. In Johnson v. NPAS Solutions, LLC, the Court held that class representatives “can be reimbursed for attorneys’ fees and expenses incurred in carrying on the litigation, but he [or she] cannot be paid a salary or be reimbursed for his [or her] personal expenses.” In the Court’s view, “the modern day incentive award for a class representative is roughly analogous to a salary” and thus is not recoverable from the settlement fund. The Court acknowledged that such awards are typically granted in class actions, but reasoned that the practice’s routineness “is a product of inertia and inattention, not adherence to law.” Looking past cases decided in this century and in the last, the Court concluded that Trustees v. Greenough and Central R.R. & Banking Co. v. Pettus, both decided in the 1880s and which have no application to statutory class actions, prohibit incentive awards that compensate class representatives for their time.

The Johnson Court’s reasoning—which harkens to the nineteenth century—wholly ignores the equitable and logistical principles that underlie class action litigation: to permit one member of a group of similarly-situated plaintiffs to stand in the stead of each such plaintiff, to avoid duplicitous litigations and divergent outcomes, and to conserve judicial and financial resources. The Johnson Court likewise failed to engage with the argument that a class representative “serves as a fiduciary to advance and protect the interests of those whom he [or she] purports to represent,” as determined in Kline v. Wolf .

By analogy to the American law of trusts—whose genesis is also from the nineteenth century—a class representative, as a fiduciary (a trustee), should be compensated for offering time and resources to secure a common fund (a trust) for the benefit of the class (beneficiaries). In Barney v. Saunders, the court held, in 1853, that “it is considered just and reasonable that a trustee should receive a fair compensation for his [or her] services; and in most cases it is guaged [sic] by a certain per centage on the amount of the estate.” As Justice Story wrote 102 years ago:

Nor can any one expect any trustee to devote his time and services to a very watchful care of the interests of others when there is no remuneration for his services, and there must often be a positive loss to himself in withdrawing from his own concerns some of his own valuable time. . . . The policy of the law ought to be such as to induce honorable men, without a sacrifice of their private interests, to accept the office, and to take away the temptation to abuse the trust for mere selfish purposes, as the only indemnity for services of an important and anxious character.

The same equitable principle should just as readily apply to class action litigation: where an individual plaintiff undertakes risks and incurs reasonable expenses to create a common fund, on behalf and for the benefit of an entire class of similarly-situated individuals, she acts as a trustee for the whole class and is entitled to reasonable remuneration.

While Johnson establishes a troubling landmark for several reasons, all is not lost for securities class action plaintiffs. Indeed, the Court limited Johnson’s holding, explaining that if “Congress doesn’t like the result we’ve reached, they are free to amend Rule 23 or to provide for incentive awards by statute.” Counsel for securities plaintiffs, taking the Court at its word, will observe that Congress has provided for such incentive awards in the Private Securities Litigation Reform Act (“PSLRA”), which provides:

The share of any final judgment or of any settlement that is awarded to a representative party serving on behalf of a class shall be equal, on a per share basis, to the portion of the final judgment or settlement awarded to all other members of the class. Nothing in this paragraph shall be construed to limit the award of reasonable costs and expenses (including lost wages) directly relating to the representation of the class to any representative party serving on behalf of a class.

By its text, then, the PSLRA expressly contemplates—and approves of—recovery by a securities lead plaintiff or class representative an “award of reasonable costs and expenses” incurred in his or her fiduciary role to the class.

Over the past four years, the federal judiciary has embraced— and likely will continue to adopt—originalist principles when deciding legal and equitable questions, and textualist views when deciding statutory questions. Such a drastic shift in judicial philosophy will doubtless have profound consequences for federal securities litigators and their clients, as longstanding interpretations may well be tested and challenged over the coming decades.

Still, the plain text of the federal securities laws—remedial statutes by their context and purpose—is squarely on the side of our clients, the investing public. This new era presents a challenge, but also an exciting opportunity to present reimagined and innovative arguments on behalf of defrauded investors, and to set new legal precedents that will carry forward Congress’s objectives for the public good. 

Ninth Circuit Victory for Pomerantz in BOFI Litigation

POMERANTZ MONITOR | NOVEMBER DECEMBER 2020

By Brenda Szydlo

Pomerantz won a major victory for investors when the Ninth Circuit Court of Appeals reversed, in part, the district court’s dismissal of a securities fraud class action against BofI Holding, Inc. (“BofI”), now known as Axos Financial, Inc., on loss causation grounds.

BofI, short for Bank of Internet, operated as the holding company for BofI Federal Bank (the “Bank”), now known as Axos Bank. The Bank provided consumer and business banking products in the United States. Pomerantz is lead counsel in this litigation, in which it is alleged that throughout the Class Period, BofI misled investors by misrepresenting and omitting material information in their public statements, the disclosure of which would have altered the risk profile of their capital. Two glaring examples are that BofI failed to disclose that: it engaged in lending, directly or indirectly, to criminals; and that it was being investigated by a number of agencies, including the Securities and Exchange Commission (“SEC”), Department of Justice, and the Federal Deposit Insurance Corporation.

The complaint identified an article that allegedly revealed the falsity of BofI’s statements immediately prior to a price drop in BofI’s stock price. Because the article admittedly relied on information obtained through a Freedom of Information Act (“FOIA”) request to the SEC, the district court held that the article could not be considered a corrective disclosure of any misrepresentation as it did not reveal any new information to the market.

On Appeal, the Ninth Circuit reversed, in part, finding that plaintiffs adequately satisfied the loss causation pleading burden. The Court held that plaintiffs may rely on a corrective disclosure derived from a FOIA response by plausibly alleging that the FOIA information had not been previously disclosed. Jeremy A. Lieberman, Managing Partner of Pomerantz, stated, “The decision is precedential in that it clarifies that defendants cannot evade loss causation allegations on the basis that information might have been previously available to the public. The alleged undisclosed information needs to be actually disseminated to the public.”

The Ninth Circuit remanded the case to the district court, where Pomerantz will continue to vigorously pursue the claims on behalf of defrauded investors. Pomerantz’s BofI litigation is led by Jeremy A. Lieberman (argued), Emma Gilmore, Brenda Szydlo and Jennifer Banner Sobers. 

Pomerantz Achieves Two Multi-Million Dollar Class Action Settlements

POMERANTZ MONITOR | NOVEMBER DECEMBER 2020

By Eric D. Gottlieb

In significant victories for investors, Pomerantz recently achieved multi-million dollar settlements in two separate securities fraud class actions: (1) a $3.75 million settlement with Ormat Technologies, Inc. (“Ormat”); and (2) a $13.25 million settlement with Blue Apron Holdings, Inc. (“Blue Apron”). Both proposed settlements are pending court approval.

On September 3, 2020, Judge Robert C. Jones, in the U.S. District Court of the District of Nevada, granted preliminary approval of the $3.75 million settlement that Pomerantz, as sole lead counsel, achieved in a securities fraud class action against Ormat and certain of its officers. The final approval hearing is scheduled for January 11, 2021.

Ormat is a vertically integrated geothermal energy company. Its common shares are dual-listed on the New York Stock Exchange (“NYSE”) and the Tel Aviv Stock Exchange (“TASE”). The complaint generally alleged that, during the class period (August 8, 2017 – May 15, 2018, inclusive), the defendants unlawfully inflated Ormat’s stock price and violated the U.S. federal and Israeli securities laws by issuing materially false and misleading financial statements that improperly recorded millions of dollars of deferred tax assets and by making materially false and misleading statements regarding the adequacy of Ormat’s internal controls.

More specifically, our complaint alleged that Ormat improperly recorded millions of dollars of deferred tax assets on its financial statements, thus materially misrepresenting the company’s financial condition to investors and artificially inflating the prices of the company’s publicly traded securities. A deferred tax asset is an asset carried on a company’s balance sheet that may be used to offset taxable income in future years. For a company to realize the benefit of a deferred tax asset, however, it must actually have future income to offset. When a company is unlikely to earn that future income, it cannot carry its deferred tax assets at full value on its financial statements. Specifically, Generally Accepted Accounting Principles (“GAAP”) require that a company offsets the value of its deferred tax assets by recording a “valuation allowance” if it is “more likely than not” that some or all of its deferred tax assets will not be realized. As Ormat told investors, once a valuation allowance is recorded, it can only be released on the basis of “sufficient evidence that we will be able to generate sufficient future taxable income in the U.S.” Moreover, GAAP prohibits companies from “offset[ting] deferred tax liabilities and assets attributable to … different tax jurisdictions.” The complaint alleged that, instead of abiding by these rules during the class period, Ormat improperly released $62 million of its valuation allowance when it had a reasonable basis to release no more than $35.6 million. Thus, during the Class Period, Ormat continued to record and carry deferred tax assets at falsely inflated values. Defendants allegedly had a motive to misstate the company’s financials, in violation of Ormat’s accounting policies and internal controls, because, after Ormat had to book a large deferred tax liability in connection with its plan to repatriate foreign earnings, defendants wanted to offset this bad news, mitigate its impact on the company’s financial statements, and assure investors that the net impact on the company’s tax position would be positive.

The truth concerning Ormat’s financial condition and internal controls was revealed through disclosures on May 11 and May 16, 2018. On May 11, 2018, Ormat disclosed that it had to delay filing its quarterly report for the first quarter of 2018 because the company’s management had identified an error in the company’s financial statement presentation of deferred income tax assets and liabilities affecting the company’s balance sheets in prior reporting periods. Among other things, the company also noted that it was in the process of evaluating the control implications of this error given that it relates to previous material weakness disclosures. On this news, Ormat’s stock price plummeted $3.58 per share, or over 6%, over two consecutive trading days. Then, on May 16, 2018, Ormat announced that the internal control problems were actually so serious that it was forced to restate numerous prior financial statements, including its second, third and fourth quarter 2017 financial statements and its full-year 2017 financial statements. As a result, the company’s stock price fell further, by $0.67 per share.

The settlement was achieved after approximately two years of litigation. Ormat moved to dismiss the action, primarily on the basis that the complaint failed to plead scienter. The Court denied defendants’ motion in its entirety on December 6, 2019. The Court’s opinion was particularly significant because it rejected Ormat’s argument that the complexity of the underlying GAAP rules foreclose a finding of scienter. Moreover, the Court accepted Pomerantz’s argument that the relevant accounting provisions set forth bright-line rules, and a reasonable person could find that Ormat’s alleged impermissible netting of deferred assets across jurisdictions was done to offset the damaging news of repatriation taxes.

In another meaningful victory for investors, Pomerantz, as co-lead counsel, achieved a $13.25 million settlement with Blue Apron, as well as certain of its current and former officers and directors. On November 6, 2020, lead plaintiffs filed a motion in the U.S. District Court of the Eastern District of New York seeking the Court’s preliminary approval of the settlement. Blue Apron is a subscription-based meal-kit delivery service. The action arose from allegations that the company made material misrepresentations and omissions in connection with its June 2017 initial public offering (“IPO”) in violation of Sections 11 and 15 of the Securities Act. More specifically, the complaint alleged, among other things, that the company’s IPO prospectus misleadingly attempted to assure investors that its ambitious growth plans and ability to compete in the increasingly competitive meal-kit delivery service segment, which were tied to its highly-touted new production facility in Linden, New Jersey, remained on track. However, the defendants allegedly failed to disclose that significant delays had already materialized in opening and in ramping up production at the Linden facility, which was hindering the company’s customer retention, product expansion plans, and strategic approach for the remainder of 2017. Less than two months after the IPO, on August 10, 2017, Blue Apron revealed the significant delays it had encountered at its new factory in Linden and their negative impact on the company’s performance and outlook. Following this news, Blue Apron’s share price fell $1.10, to close at almost 50% below the IPO price. Blue Apron’s stock price continued to slide well into November, as the market learned the full extent of Blue Apron’s ongoing production struggles.

The defendants moved to dismiss the complaint, which the Court denied on April 22, 2020. In its opinion, the Court agreed with plaintiffs’ argument that the allegations regarding material, existing delays at the Linden facility rendered portions of Blue Apron’s IPO prospectus misleading and actionable.

The settlement was achieved following the Court’s denial of the defendants’ dismissal motion, while the parties were engaged in early stages of discovery. The proposed settlement resulted in a recovery provided the putative class of investors with as much as 53% of the maximum potential recoverable damages. This is an exceptional result when compared to historical statistics in class action settlements.

Q&A: Kolby Beckham

POMERANTZ MONITOR | SEPTEMBER OCTOBER 2020

Partner and Head of Client Services Jennifer Pafiti spoke with Kolby Beckham, Fire Captain of the Longview Fire Department and Chairman of the Longview Firemen’s Relief and Retirement Fund in Texas, about recovering from COVID-19, serving as a front line responder and the challenges facing public pension funds.

Jennifer Pafiti: Can you share your experience with having and recovering from COVID-19?

Kolby Beckham: For me, it was flu-like in the sense that I did not have severe symptoms like some do. I’ve been tracking the symptoms of the people in my fire department, and there’s no consistent result. Some have severe gastrointestinal issues, others have none. The common symptom for about 75% of our people is loss of smell and taste. In our community, we’ve had deaths associated with COVID-19, but it’s hard to put your finger on what makes one person an extreme case and another test positive and only be sick for a day and a half.

JP: How has the coronavirus pandemic affected your work on the front lines as a first responder?

KB: It has had a severe impact. We wear respirators with the canisters on the side on every call, and that’s fatiguing, on top of the 107-degree heat index out here. Of course, we’ve shut down all our proactive building inspections, pre-fire plans and station tours. We normally do Fire Prevention Month in October where we go speak to kids in schools and none of that will be happening this year.

JP: As Chairman of the Longview Firemen’s Relief & Retirement Fund since 2008, has this pandemic been the most challenging thing you have faced in that role over those 12 years?

KB: I wouldn’t say COVID-19 specifically has been the most challenging. I came in right before the housing market bubble popped in 2008, so that was our first downturn. That was one of the most challenging times and it was a long span. We’ve been working hard to fix our unfunded liability issues, negotiating with our governing entity here in Texas, the Pension Review Board, and with the plan members, in regard to making benefit changes to get costs down, and that has probably been the biggest challenge. Obviously, the pandemic is creating havoc in the markets. It certainly is another bump along the road, which is pretty much the norm for pension funds, waiting for the next natural disaster or major event that will affect the market.

JP: Can you speak to your work with the TLFFRA Non-Profit Education Foundation?

KB: TLFFRA, the Texas Local Fire Fighter’s Retirement Act, is the legislative act that allows certain pension funds to exist in the state of Texas. Your big pension funds like Dallas Police and Fire, Houston Police and Houston Fire are all large enough to have their own legislative acts enabling them to be pension funds. TLFFRA was enacted in 1938 to enable smaller fire departments to have funds too. Forty-two fire departments in Texas fall under TLFFRA. Smaller funds are unique in how we operate and how the administration is structured, so when we go to general fund conferences, the information is not as applicable to the training that we need for the resources that we have. So we came up with our own conferences and our own training, figuring who better than ourselves to share the wisdom of “we made this decision and it was terrible, and you shouldn’t do the same.” To share our knowledge, we started the TLFFRA Education Foundation, typically hosting two events a year. The first one is peer review training specifically for new trustees to a board, taught 100% by trustees of other pension funds. The second is a larger event where we bring in financial consultants, money managers and securities litigation lawyers to speak to the members about larger issues than just the day-to-day operations. At this time, we’re doing all our pension meetings virtually but it’s tough enough to talk to 10 people online, much less get a couple of hundred people together, so that is something that we are struggling with.

JP: How actively interested are rank and file members with the business of the fund?

KB: Our seven-member board includes three firefighters like me — I work on a ladder truck but I also serve as Chairman of the Board — along with representatives of the city and two citizen board members who represent the taxpayers who give money to the city that gives money to us. It’s in our own best interest to have a healthy pension fund because one day we hope to be on the receiving end of those benefits, so we have to make sure that the fund is being properly taken care of. There are some hard decisions to make, like asking the guys to either contribute more money now or take less money when they retire. Sometimes you’re not very popular in the fire department. We’ve been fortunate in Longview to have interested people that we take with us to conferences to learn about managing the fund before they actually get on the board. I know that some other cities struggle in getting these positions filled. It’s hard to get people to volunteer their time to such a cumbersome position.

JP: What do you see as the biggest issue facing public pension funds today or in the near future?

KB: Pension funds generally fall under the defined benefit plan versus the defined contribution plan. We’ve already seen in the private sector that most defined benefit plans have been done away with, even though the whole design of a defined benefit plan is that it’s meant to go on forever. Unfortunately, it’s very expensive to just say “alright, we’re not going to do this anymore — tomorrow, everybody’s going to get a 401k instead,” because there are still pension liabilities that need to be met. The challenge is getting our funding ratios where they need to be in order to fulfill promises that were made. The reality is, when you work in the public sector, you don’t make the income that someone in the private sector can make in a similar position, but oftentimes, we take the lower pay in exchange for benefits like a pension plan. But what we pay into our pension plan doesn’t just fund our own benefits, it supports ongoing past pensions that were never funded properly before we even worked for the city. And that has been really difficult to make up. I’m at a point that I’m asking my members to pay for their benefits, which they are, and also to take a cut to pay for the benefits of someone that didn’t pay what they should have been paying in the past or for whom the city didn’t contribute what they should have contributed back then. It’s a difficult road ahead to educate people because they see the unfunded costs starting to grow. And unfortunately, it’s a perpetual machine — the longer it doesn’t get paid, the bigger it grows.

JP: What is your strategy when it comes to pursuing actions or claims in response to fund losses?

KB: It’s important that, as a board member, I am making sound investments. But if the fund loses money due to alleged fraud, I think I’m obligated by statute to try to recoup that money because it isn’t my money, it is the retirement money of 385 different people. I’m elected to oversee the fund and make sure it’s in the proper position. If I can use securities litigations to recoup even a percentage of the money lost, I feel it’s 100% worth it. Funds should be proactive. We can’t afford not to seek all revenues that are coming back. Every penny that we can claw back is a penny that rightfully belongs back in the fund.

The Supreme Court Claws Back SEC Clawback Authority

POMERANTZ MONITOR | SEPTEMBER OCTOBER 2020

By Cara David

Investors breathed at least a partial sigh of relief on June 22, 2020 when the Supreme Court handed down its decision in Liu v. SEC. Some feared the Supreme Court might rule the SEC was unable to obtain disgorgement, but those fears were not realized. The Supreme Court instead struck a middle ground, accepting the SEC’s ability to obtain disgorgement but curtailing its use.

As I reported in the Monitor in November 2019, the disgorgement remedy is a powerful one—it forces defendants to cough up gains they obtained by violating the securities laws. While civil penalties are meant to function as both punishment and deterrent, disgorgement in theory functions under the premise that a wrongdoer should not be able to keep the ill-gotten gains from the fraud. In dollar terms, disgorgement awards often dwarf other remedies available to the SEC.

Liu was the first time the Supreme Court tackled the SEC’s use of disgorgement since the Court’s 2017 decision in Kokesh v. SEC. The SEC never possessed explicit statutory authority to seek disgorgement, but federal courts have been allowing them to do it for years on the premise that it was a form of “equitable relief.” The Kokesh decision held that disgorgement constituted a “penalty” for statute of limitations purposes and, therefore, was subject to a five-year statute of limitations. In that decision, the court explicitly withheld decision on “whether courts possess authority to order disgorgement in SEC enforcement proceedings[.]”

The Liu case was fairly straightforward. Defendants/petitioners Charles Liu and wife Xin Wang operated an investment fund that solicited investments from foreign nationals seeking to qualify for immigrant visas to the United States by investing in U.S. businesses. Fifty investors paid almost $27 million for construction of a cancer-treatment center in California. Liu sent a private offering memorandum to prospective investors, pledging that amounts collected from a small administrative fee would fund “legal, accounting and administration expenses” and the bulk of the money contributed would be used to fund construction of the center.

However, an SEC investigation uncovered that almost $20 million of the funds collected went to alleged marketing expenses and salaries, with a large chunk of that ending up in personal accounts and another company under Wang’s control. In the lower court, the SEC was granted summary judgment with the couple being held jointly and severally liable for approximately $8.2 million in civil penalties and approximately $26.7 million in disgorgement. The district court did not allow defendants to deduct expenses incurred on the center and did not require the SEC to distribute the disgorged funds to investors, thereby allowing the disgorged monies to go into the U.S. Treasury. The Ninth Circuit affirmed.

During oral argument in Kokesh, some of the Supreme Court Justices seemed concerned about whether the disgorged funds were being used to compensate the victims. Therefore, Liu offered a good opportunity for the Court to make its position on disgorgement clear, as the case dealt with a large award that might not end up in investors’ hands. In an 8-1 decision, the Supreme Court vacated the Ninth Circuit decision and remanded the case to the lower court for a reduction in the disgorgement amount.

Before the Supreme Court, defendants argued, inter alia, that the disgorgement award was improper because the SEC did not have statutory authority to seek disgorgement. The Supreme Court held that the SEC could seek disgorgement, but that any award of disgorgement had to be in line with equitable principles. Courts had been granting disgorgement beyond what would be warranted in equity, according to the high Court. Specifically , the Supreme Court held:

• “[C]ourts must deduct legitimate expenses before ordering disgorgement” in SEC enforcement actions. In other words, if defendants spent money on anything with “value independent of fueling a fraudulent scheme,” those funds cannot be disgorged. Only fraudulent net proceeds can be disgorged.

• Disgorgement must be “appropriate or necessary for the benefit of investors.” The Supreme Court left as an “open question” whether disgorged funds could ever go into the U.S. Treasury instead of being distributed to investors, but certainly expressed that disgorged funds should go to harmed investors whenever possible. This is because, according to the Supreme Court, the disgorgement award “must do more than simply benefit the public at large by depriving a wrongdoer of ill-gotten gains.” Equity requires it be used to repay investors.

• Imposing joint-and-several liability when ordering disgorgement is not generally in line with equity which imposes “individual liability for wrongful profits.” The exception would be if the defendants were partners in “concerted wrongdoing,” i.e. partners in crime. (In the Liu case, where defendants were married and were both accused of wrongdoing, the lower court is left to determine whether each defendant was subject to individual liability or they were true partners in the fraudulent endeavor.)

Interestingly, while Justice Thomas drafted a strong dissent, he also believed the Ninth Circuit decision should not be affirmed. He wrote that the SEC is not entitled to seek disgorgement because it is not an “equitable remedy.” He therefore was in favor of reversing the Ninth Circuit decision, instead of vacating it and remanding the case.

The long-term implications of the Liu decision are not yet known. But it will certainly have an impact on the SEC and implications for other federal agency enforcement actions brought in federal court, including those brought by the Federal Trade Commission (FTC).

In terms of what the SEC will do in the future, there are several open questions which will impact investors. Some suspect that the SEC will now try to bring more actions as administrative proceedings. It is unclear what impact this ruling will have in those proceedings. In his dissent, Justice Thomas noted a fear that Liu would in fact “cause confusion in administrative practice,” and that the result may be that “disgorgement has one meaning when the SEC goes to district court and another when it proceeds in house.”

However, undoubtedly, there will continue to be many federal court cases brought by the SEC, and the Supreme Court’s decision that disgorgement must “not exceed a wrongdoer’s net profit” will limit future awards. Liu will also create new disputes within cases, including what expenses are considered “legitimate” such that they must be deducted from monies raised as a result of the fraud.

Additionally, the focus on individual liability raises many questions, but will inevitably decrease the amount of money collected over the course of years (if not in every individual case) because it reduces the number of people the SEC can look to for money. Based on Liu, for example, it is now unclear whether the SEC can continue with its practice of requiring tippers to disgorge trading profits earned by tippees.

One possible result of Liu may be the SEC relying more heavily on statutorily-authorized monetary penalties. These funds often go to the Treasury, though they can be, and sometimes are, distributed to defrauded investors.

Of course, defendants will now use these limitations as leverage in negotiations with the SEC to try to bring down settlement awards. It will be interesting to see in future years just how much this impacts the amounts the SEC is able to collect, both in court and as a product of behind-the-scenes negotiations.

And, while Liu and Kokesh are currently the disgorgement law of the land, Congress could still step in and explicitly grant the SEC the power to seek disgorgement. Two bills in the Senate (one of which has passed the House) would do just that. There has been no action on either since last year, but Liu could very well reignite discussions about congressional action. However, given the more pressing issues the Senate must deal with when it returns to session in September, it seems unlikely disgorgement will take center stage anytime in 2020.