Investors' Billion-Dollar Fraud Fighters

- By PETER LATTMAN - The New York Times - October 8, 2012

A few days after securing the largest shareholder recovery arising from the financial crisis - $2.43 billion from Bank of America - the plaintiffs' lawyer Max W. Berger was not taking a victory lap.

"It makes me sad that in all of these scandals, no matter how good a job we do of getting results and inflicting pain, the government doesn't seem to follow suit, and nobody learns, and it's business as usual," he said in an interview.

After a pregnant pause, Mr. Berger broke into a sly smile. He had another thought: "It gives us a lot of business, but it still makes me sad."

With last month's settlement with Bank of America, which resolved claims that the bank had misled shareholders about its acquisition of an ailing Merrill Lynch, Mr. Berger, 66, has now been responsible for six securities class-action settlements of more than $1 billion. His firm, Bernstein Litowitz Berger & Grossmann, based in Manhattan, has represented investors in five of the 10 largest securities-fraud recoveries. So far, it has recovered $4.5 billion for investors in cases connected to the subprime mortgage collapse.

"He is unquestionably one the giants of the plaintiffs' bar," said Brad S. Karp, the managing partner at Paul, Weiss, Rifkind, Wharton & Garrison, who represented Bank of America and has faced off against Mr. Berger in several other cases. "And what sets Max apart, beyond his talents as a lawyer, is that he's a mensch, a person of real humility and integrity."

There was a time, not too long ago, when the lions of the securities class-action bar were described in far less flattering terms. For decades, Melvyn I. Weiss and William S. Lerach, a pair of brash, crafty plaintiffs' lawyers, dominated this lucrative pocket of the legal industry. Their firm, Milberg Weiss, revolutionized shareholder class-action suits by filing streams of cases against corporations, accusing them of accounting fraud. Critics called their aggressive tactics legalized blackmail. Congress passed laws aimed at reining in their practices.

The careers of Mr. Weiss and Mr. Lerach ended in disgrace in 2006, when their firm was indicted on charges that it had funneled illegal kickbacks to clients to induce them to sue. Mr. Weiss, Mr. Lerach and two other Milberg Weiss partners ultimately served prison terms. (It did not help the standing of the plaintiffs' bar that at about the same time, Richard F. Scruggs, the Mississippi class-action lawyer, was imprisoned for trying to bribe a judge.)

"To be tarred by those brushes was very upsetting, but it was even worse to have everyone presume that we operated in the same way," Mr. Berger said. "After they were charged, I can't tell you how many people said, 'Well, isn't that what all of you do?' "

Yet a half-decade after Milberg's downfall, there has been a shift in the public image and reputation of the securities class-action bar. The Bank of America settlement, which is still subject to judicial approval, comes at a moment when plaintiffs' lawyers are being praised for extracting stiff penalties from banks related to their actions during the housing boom and the subsequent economic collapse. At the same time, resource-constrained government regulators have been criticized for not being tough enough.

In several cases, private plaintiffs have settled lawsuits for amounts far greater than the government received in similar actions. Bank of America, for instance, paid the Securities and Exchange Commission just $150 million to settle the commission's lawsuit connected to the Merrill acquisition. Judge Jed S. Rakoff reluctantly approved the S.E.C. settlement, calling it "inadequate and misguided" and the dollar amount "paltry."

"The securities class-action bar has come under relentless assault over the years," said J. Robert Brown Jr., a corporate law professor at the University of Denver. "Yet these suits, especially the ones tied to the financial crisis, actually have had real value in the capital markets because companies need to know that there is a heavy price to pay for their misconduct."

There are still detractors who scoff at that notion. These critics view securities class-action lawyers as bounty hunters who file nuisance lawsuits against deep-pocketed targets and then force them to settle rather than engage in costly litigation. They argue that the settlements have little deterrent effect because the payments almost always come from the corporations, not the executives and directors running the companies.

And questions have arisen over plaintiffs' lawyers' campaign contributions to local politicians who control the selection of legal counsel for shareholder lawsuits filed by public pension funds.

But even the most vocal opponents of securities-fraud class actions acknowledge that a variety of factors, including a combination of federal legislation and court rulings, have curbed abuses in the system. Many of the weakest cases are now thrown out earlier, and large institutional shareholders like state pension funds and insurance companies have taken greater control of the lawsuits.

They are also reining in the lawyers' fees. In the past, plaintiffs' lawyers received 20 percent to one-third of the settlement amount. Today the average fee award as a percentage of the recovery is much lower. In Bank of America, for example, Bernstein Litowitz and two other firms - Kessler Topaz Meltzer & Check and Kaplan Fox & Kilsheimer - are expected to ask for about $150 million, or 6 percent of the settlement.

"Things have definitely improved," said Theodore H. Frank, an adjunct fellow at the Manhattan Institute and a longtime critic of abusive class actions. "Is it perfect? No. Is it better? Yes."

Legal experts say the class actions filed after the financial crisis highlight the improvements. The lawsuits were far more risky and complex than the template "strike suits" that plaintiffs' firms once churned out every time a company's share price plummeted. And unlike large corporate scandals like Enron or WorldCom, there were no balance-sheet restatements or criminal convictions to use as evidence.

"We never viewed these cases as easy but felt we needed to be in them in a big way, so we really doubled down," Mr. Berger said.

Bernstein Litowitz's recent settlements read like a who's who of the "too big to fail" era. Wachovia and its auditor paid its bondholders $627 million to resolve charges related to its mortgage holdings. Merrill Lynch settled claims that it had misled buyers of mortgage products for $315 million. Lehman Brothers' underwriters paid $426 million to end a lawsuit over its stock sales. Washington Mutual's underwriters and insurers paid $205 million to investors in the now-collapsed bank.

The big mortgage-related settlements are expected to add up to hundreds of millions in fees for Bernstein Litowitz, a 52-lawyer firm. Mr. Berger and his three founding partners started the firm in 1983 after splitting off from Kreindler & Kreindler, a plaintiffs' firm best known for its aviation-disaster litigation.

The Bank of America settlement is a boon for the firm, ending nearly four years of bruising litigation and coming less than a month before it was set for trial. The lawsuit accused Bank of America of concealing from its shareholders, who were voting on the Merrill acquisition, the billions of dollars in mounting losses at Merrill, as well as billions in bonuses being paid out to Merrill executives.

Bernstein Litowitz and two other firms represented five plaintiffs: two Ohio pension funds, a Texas pension fund and two European pensions. Working with Mr. Berger on the case were his partners Mark Lebovitch, Hannah Ross and Steven B. Singer.

"This case will now serve as Exhibit A for corporate directors tempted to withhold information from shareholders," Mr. Berger said. "The message isn't complicated: Just tell the truth."

New matters, meanwhile, are coming in. Bernstein Litowitz was appointed lead plaintiffs' counsel in a lawsuit against JPMorgan Chase related to the bank's multibillion-dollar trading loss out of a unit in London. And it is involved in the litigation against Facebook and Morgan Stanley over the social networking company's botched initial public offering of stock.

Mr. Berger said finding cases had rarely been a problem.

"I can't predict the next scandal," Mr. Berger said. "But I know that fraud is a growth industry, and so is greed."