Plaintiff Lawyers Join The Bribery Racket

The Justice Department’s unprecedented campaign to enforce a once-backwater statute called the Foreign Corrupt Practices Act, or FCPA, has made corporate lawyers and accountants rich as big companies pay big law and accounting firms to investigate and defend potential violations. Plaintiff lawyers have noticed the enormous fees, which are often reaching into the hundreds of millions of dollars, enhanced FCPA enforcement is generating and are moving to extract their own cut.

chicagobarfoundation.org"We are seeing a variety of civil lawsuits that we simply didn’t see" before, says Homer Moyer, a partner at Miller Chevalier specializing in the FCPA. "It’s coincidence of course with the great number of FCPA cases and the size of the penalties." Says James Tillen, a colleague of Moyer’s at Miller Chevalier: "Every single company that has settled or disclosed recently seems to be followed with a press release from one of these plaintiff firms seeking shareholders to file suit."

The unintended consequences of the Justice Department’s FCPA policy simply continue to mount. The intense criminalization by U.S. government lawyers of behavior that should never be condoned, but is globally systematic, has produced many outcomes. Meet one of them: Hamilton Lindley, a professional securities class-action lawyer. In the last few months he has followed corporate disclosures of FCPA investigations by suing the boards of directors of Weatherford International, Parker Drilling, Avon Products and Pride International. Lindley is now spending a quarter of his time on the FCPA and is quite honest in saying he is just following the lead of the Department of Justice and the Securities & Exchange Commission.

"I think the fact that these companies have been committing graft overseas frankly is an interesting topic for juries to hear," Lindley told me. "It’s the new enforcement regime of the DOJ and SEC so private practice lawyers are interested in what government lawyers are doing."

In the lawsuit Lindley filed against Weatherford and its board, for example, Lindley has figured out by taking a few minutes to read an SEC filing that the "Weatherford Board has incurred an astonishing $108 million in costs and expenses in connection with FCPA-related investigations," which doesn’t include the "pecuniary penalty that Weatherford is likely to have to pay to resolve the DOJ and SEC investigations." So the general idea is for Lindley and his firm, Goldfarb Branham, to also make some money off of Weatherford’s conduct.

As I wrote a few months ago, all this stems from Weatherford’s voluntary disclosure in 2007 that it might have a small bribery problem in Europe. It hired law firm Fulbright & Jaworksi to conduct an investigation, which became long and expensive— and uncovered additional potential bribery all the way in West Africa. One Fulbright lawyer, William Jacobson, who happened to have been assistant chief of the Department of Justice’s office responsible for FCPA enforcement when Weatherford made its initial disclosure, became a general counsel at Weatherford, though the company says he has been walled-off from the investigation.

Now the plaintiff lawyers are trying to join the fun. So far the results have been mixed as plaintiff lawyers try to get around the fact that the FCPA does not really provide directly for civil actions. Shareholder actions based on securities fraud or breaches of fiduciary duty by boards of directors seem to be popular. According to Miller Chevalier, plaintiff firms have extracted FCPA-related settlements in civil litigation from companies like Faro Technologies, which paid $6.9 million; Nature’s Sunshine, which paid $6 million, Immucor, $2.5 million; and Syncor, $15.5 million.

How much do the plaintiff lawyers wind up with? In the Syncor case plaintiff firms Dietrich & Arleo, Kendall Law Group, and Coughlin Stoia got 25% of the settlement, or $3.87 million, a court filing shows. How disproportionate can the civil litigation get? In the Faro Technologies case, in which the company self-reported the violations, plaintiff lawyers settled for $6.9 million, even though Justice and the SEC got just $2.9 million, court documents show. How much more baffling can copycat FCPA civil litigation be for the board of directors of a company? Pretty baffling when you consider the Justice Department-mandated compliance monitor making millions of dollars following a Justice Department FCPA settlement doesn’t appear to be working under attorney-client privilege. The monitor might have to turn all the secrets he is being paid to uncover by the company that has been forced to hire him right over to a plaintiff’s attorney who is suing the same company.

There is still no evidence that the Justice Department’s aggressive FCPA effort—the many FCPA actions it has brought in the last few years coupled with 150 open FCPA investigations—is having any impact reducing bribery. There is some anecdotal evidence, however, that it is disadvantaging U.S. corporations in the global marketplace. FCPA cheerleaders were pretty convinced recently the U.S. wouldn’t be virtually alone in the world in enforcing anti-bribery laws, encouraged by the U.K.’s adoption of an actual anti-bribery law. But like most OECD countries, the U.K. has now revealed it has little intention of actually enforcing the law anytime soon. There is also now an indication that an individual or company can be exempt for political reasons from the serious consequences now associated with FCPA enforcement.

What is clear is that the cost of enhanced FCPA enforcement on U.S. corporations keeps going up. And that more lawyers are finding ways to get rich off of it.



As Toyota saga continues, shareholders ready case

WASHINGTON—Congressional hearings and investigations into Toyota Motor Corp.'s knowledge of accelerator problems could help plaintiffs suing the automaker and potentially endanger directors and officers insurance coverage that Toyota likely has in place, observers say.

One day before the start of congressional hearings last week, Toyota announced it had received a voluntary subpoena from the U.S. Securities and Exchange Commission seeking documents related to unintended acceleration of Toyota vehicles and the company's disclosure practices.

Toyota also said a federal grand jury in New York had issued a subpoena for related documents.

Those events came after litigation seeking class action status on behalf of Toyota stockholders. The securities lawsuit filed Feb. 8 in U.S. District Court for the Central District of California alleges Toyota's officers and directors defrauded investors by failing to disclose defects that could have led to unintended acceleration. Shareholders have lost tens of billions of dollars, plaintiffs allege.

On Friday, Toyota's stock closed at $74.83 per share.

Toyota securities traded at an artificially inflated price during the class period from Aug. 4, 2009, to Feb. 2, 2010, reaching $91.78 on Jan. 19, according to the lawsuit. As a result of recalls and related sales declines, the stock closed at $73.49 per share on Feb. 3, plaintiffs allege in their complaint.

Federal law governing securities litigation stays discovery in such lawsuits until after a court has ruled on motions to dismiss, which is a significant hurdle for plaintiffs, legal experts say.

Therefore, hearings and government investigations can help securities plaintiffs overcome that hurdle by producing information earlier than is normally obtained through discovery, defense and plaintiffs attorneys said.

"We have our hands tied behind our back more so than plaintiffs (in other types of litigation) as a result of that discovery stay," said Hamilton Lindley, a shareholder attorney at Kendall Law Group L.L.P., a Dallas firm seeking to become the lead attorneys by representing institutional investors in the securities litigation against Toyota.

"The more information (investigations) can reveal about what Toyota knew and when they knew about these problems with the gas pedals would be beneficial to our case," Mr. Lindley said.

Others agree the investigations could help plaintiffs, especially if they uncover evidence that Toyota's directors and/or officers knew of unintended acceleration problems but kept quiet about them.

That is part of what congressional leaders overseeing last week's hearings said they hoped to uncover.

During a House subcommittee hearing last week, Rep. John D. Dingell, D-Mich., questioned James E. Lentz, president and chief operating officer of Toyota Motor Sales U.S.A. Inc., about when Toyota first learned of sudden acceleration incidents, when it began its recall and the number of consumer complaints it has received since 2001.

Mr. Lentz had no answers, but observers say establishing a timeline is critical for plaintiffs.

Already, the lawsuit filed in California contains statements that Mr. Lentz made on NBC's Feb. 1 "Today Show," when he allegedly contradicted previous Toyota statements about when it knew of possible defects.

linkedin.comNow ongoing investigations could hand plaintiffs a smoking gun should they turn up harmful e-mails and internal documents, observers say.

"What is beautiful for the plaintiffs lawyers is there is a congressional investigation and SEC investigation, (so) the government is going to do all the work," said Greg Flood, president in New York of IronPro, a professional liability division of Bermuda-based Ironshore Insurance Ltd. Plaintiffs attorneys could "take the results of those investigations and have a field day."

While results of congressional investigations typically are made early on, SEC investigation results, if there are any, may not emerge until much later, said Ronald L. Marmer, co-chair of the securities litigation practice at Jenner & Block L.L.P. in Chicago.

Either way, plaintiffs can use the media attention drawn by investigations to persuade a court that they have a case that deserves to be heard, Mr. Marmer said. "Judges who see newspaper stories and congressional investigations and acknowledgements by the company that they are being investigated...those always add a certain quality of "where there is smoke there is fire,'" he said.

But fraud and misrepresentation allegations without facts to support them commonly are thrown around, said Carl E. Metzger partner and member of the securities litigation and SEC enforcement practice at Goodwin Proctor L.L.P. in Boston.

If investigations establish fraud, however, that could affect D&O insurance recovery. Policies typically exclude coverage when fraud or willful misconduct occurs, although personal misconduct exclusions generally do not trigger until final adjudication of wrongdoing, Mr. Metzger said.

With most D&O cases settling before a final adjudication, though, insurers often are on the hook, unless the fraud allegations are substantiated.

Company officials' public statements generally can be used by plaintiffs as well as insurers citing exclusions, said Ken Ross, executive vp in the executive risk practice of Willis North America's New York office.

"Whenever senior officials make comments, they always run the risk that somehow those statements can perhaps be used against them—not only by plaintiffs, but (they can) be a basis for some defense a D&O insurance carrier may raise whether an exclusion applies," Mr. Ross said.