UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ) ) ) ) ) ) ) )

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA In re UNITEDHEALTH GROUP INCORPORATED PSLRA LITIGATION This Document Relates To: ALL ACTIONS. Civ. No. 0:06-cv JMR-FLN CLASS ACTION CALIFORNIA PUBLIC EMPLOYEES RETIREMENT SYSTEM S MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO EXTEND PRELIMINARY INJUNCTION

2 CalPERS respectfully submits this memorandum of law in further support of its motion to extend the preliminary injunction against William W. McGuire ( McGuire. The arguments herein are limited primarily to addressing two recent developments relevant to the injunction: (i the issuance of the Special Litigation Committee Report ( SLC Report ; and (ii the consent judgment ( SEC Complaint between McGuire and the Securities and Exchange Commission ( SEC. 1 CalPERS also respectfully submits herewith two exhibits in response to the Court s December 7, 2007 Order. See Abadou Aff., Exs. A-B. I. FACTUAL STATEMENT A. SEC v. McGuire, Civ. No. 07-cv JMR-FLN (D. Minn. Like CalPERS Consolidated Complaint, the SEC alleges violations of 10(b and 14(a of the Securities Exchange Act of 1934 ( Exchange Act and Exchange Act Rules 10b-5 and 14a-9 promulgated thereunder. See SEC Complaint, 5, 31-33, 43-45; CalPERS Complaint, 214, (same. The SEC specifically seeks an order (a enjoining McGuire from engaging in future violations of the sections of the federal securities laws that he violated; [and] (b requiring him to disgorge, with prejudgment interest, ill-gotten gains derived from his violations. 2 SEC Complaint, 6. The SEC also broadly requests such 1 CalPERS incorporates by reference herein its 10/27/06 memorandum of law in support of its motion for a preliminary injunction (Docket #114 and its 12/6/07 letter-brief (Docket #294. Emphasis is added and citations are omitted throughout. 2 The SEC also alleges that McGuire aided and abetted UnitedHealth Group Inc. s ( UnitedHealth or the Company violations of the federal securities laws. SEC Complaint, 5,

3 equitable relief as may be appropriate or necessary for the benefit of investors pursuant to Section 21(d(5 of the Exchange Act. SEC Complaint at 17. The conduct alleged by the SEC is, in significant respects, identical to the allegations set forth in CalPERS Consolidated Complaint. In depicting the backdating scheme at UnitedHealth during the Class Period, the SEC alleges that between : UnitedHealth filed with the Commission and disseminated to investors quarterly and annual reports, proxy statements and registration statements that McGuire knew, or was reckless in not knowing, contained materially false and misleading statements pertaining to the true grant dates of UnitedHealth options. This caused investors to believe, falsely, that the Company granted options with strike prices equal to the fair market value of UnitedHealth stock on the date of grant.... Consequently, UnitedHealth materially understated its compensation expenses and materially overstated its quarterly and annual pretax earnings and earnings per share in its financial statements. SEC Complaint, 4, 22; see also id., 16-21, 23-25; CalPERS Complaint, 3, 10, 21, 30, 38-55, 64-97, B. The SLC Report By design, the SLC Report provides little evidentiary support in support of CalPERS claims. 3 See SLC Report at 59 ( The SLC has determined that it would be contrary to the Company s best interests to set forth detailed factual findings... as the Company is subject to ongoing federal securities fraud actions involving similar allegations.. One, however, can fairly deduce that the SLC s factual findings would bolster, rather than undermine, CalPERS likelihood of success on the merits against defendants. See id. 3 McGuire apparently refused to cooperate with the SLC s investigation. See SLC Report at 35, 59 n

4 II. ARGUMENT A. Legal Standard The Dataphase factors are 1 the probability of success on the merits; 2 the threat of irreparable harm; 3 the balance between this harm and the injury which will result from granting the injunction; and 4 whether issuance of the injunction was in the public interest. Planned Parenthood Minn. v. Rounds, 467 F.3d 716, 720 (8th Cir Contrary to McGuire s recent suggestion that, under Dataphase, irreparable injury is a prerequisite to an injunction, the Eighth Circuit holds that the best starting point for our Dataphase analysis is consideration of the plaintiff s likelihood of success on the merits [and that] [a]lthough likelihood of success is likely the most critical Dataphase factor, the others must also be considered. Compare 12/6/07 Hearing Tr. at 29:22-25, 30:1-3 with 467 F.3d at 721, 727. McGuire s heavy reliance on Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999, is similarly unfounded. Following extensive analysis, the Fourth Circuit explained that when both money damages and equitable relief are sought... the controlling authority is not Grupo Mexicano but Deckert. 4 United States ex rel. Rahman v. Oncology Assocs., 198 F.3d 489, 492 (4th Cir Here, of course, CalPERS does seek both damages and equitable relief. See CalPERS Complaint, , In Deckert v. Independence Shares Corp., 311 U.S. 282 (1940, the Supreme Court affirmed the district court s entry of a prejudgment preliminary injunction freezing assets in a case involving violations of the Securities Act of See Grupo, 527 U.S. at (affirming Deckert; see also Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 189, (3d Cir. 1990; Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 53 (1st Cir ( a preliminary injunction can be granted when it is necessary to protect the damages remedy

5 Accordingly, Deckert, not Grupo, controls. McGuire s forceful claim that a pre-judgment asset freeze is barred by controlling Supreme Court precedent, is, therefore, devoid of merit. Compare 12/6/07 McGuire Letter (Docket #296 at 2 n.1 with Airlines Reporting Corp. v. Barry, 825 F.2d 1220, 1227 (8th Cir (relying on Deckert to hold that the authority of a trial court to issue a preliminary injunction to ensure the preservation of an adequate [damage] remedy is well established ; Deckert, 311 U.S. at 290. Accordingly, CalPERS motion for an extension of the injunction can and should be extended to protect CalPERS substantial damages remedies. See id. B. The Preliminary Injunction Should Be Extended Until Resolution of the PSLRA Litigation 1. Likelihood of Success on the Merits This test is not one of mathematical probability, but rather a question of whether [movant] has a fair chance of prevailing after discovery and a full trial. Planned Parenthood, 467 F.3d at 721. CalPERS satisfies this test and McGuire does not seriously argue to the contrary. See 12/6/07 McGuire Letter at 5. Hence, because CalPERS prevails on what the Eighth Circuit characterizes as the most critical Dataphase factor, its motion should be granted. Planned Parenthood, 467 F.3d at The Threat of Irreparable Harm CalPERS and the putative class will also face significant irreparable harm were the status quo to be altered. 5 If the jury finds that McGuire s conduct amounted to recklessness 5 CalPERS also satisfies the public interest and equitable balance Dataphase factors. See Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981; 12/6/07 Hearing Tr. at 25:23-25, 26, 29:4-10. There is no clearer evidence of the public s interest in this case - 4 -

6 under 10(b, plaintiffs will be forced to collect a proportionate share of the damages from McGuire. McGuire s argument that he will be entitled to indemnification is, therefore, unfounded as courts consistently hold that defendants are not entitled to indemnification for violations of 10(b. See, e.g., Eichenholtz v. Brennan, 52 F.3d 478, (3d Cir (discussing cases. Put simply, if McGuire is found liable under the Exchange Act, he will not be entitled to indemnification by the Company whether the jury finds actual knowledge or recklessness. 6 See id. III. CONCLUSION For the foregoing reasons, CalPERS motion to extend the injunction should be granted until final resolution of the PSLRA litigation. DATED: December 11, 2007 Respectfully submitted, COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP s/ Ramzi Abadou RAMZI ABADOU than the Senate s scrutiny of McGuire s retirement package. Abadou Aff., Ex. C. Moreover, given that the median income for a family of four in Minnesota in 2006 was $81,477 a year (U.S. Census Bureau, McGuire should manage to survive in Minnesota on his present fortune (estimated at $500 million without an additional $606 million (after tax between now and trial in July See Abadou Aff., Ex. D. Equity clearly favors the shareholders McGuire defrauded under the circumstances. 6 District courts in this Circuit have rejected indemnity claims for violation of the securities laws as well. See, e.g., Deephaven Capital Mgmt., LLC v. Schnell, 2007 U.S. Dist. LEXIS 1504, at *9-*10 (D. Minn (indemnification under the Exchange Act would undermine the policy of deterrence because the entity would effectively recoup its disgorged profits from the third party ; Tri-State Bank v. Dain Bosworth, Inc., 1985 U.S. Dist. LEXIS 21385, at *7-*10 (D. Neb ( a securities wrongdoer should not be permitted to escape loss by shifting his entire responsibility to another party

7 MICHAEL J. DOWD ANDREW J. BROWN RAMZI ABADOU 655 West Broadway, Suite 1900 San Diego, CA Telephone: 619/ / (fax Lead Counsel for Plaintiffs REINHARDT WENDORF & BLANCHFIELD GARRETT D. BLANCHFIELD, JR. (# E-1250 First National Bank Building 332 Minnesota Street St. Paul, MN Telephone: 651/ / (fax Liaison Counsel S:\CasesSD\UnitedHealth Sec 06\BRF Freeze.doc - 6 -