PRESENTATION TO: Wolf Popper LLP By Chet B. Waldman, Esq. Wolf Popper LLP May 19, 2013 Honolulu, HI
Defending Your Defined Benefit: Capital Stewardship The Fiduciary Duty to Take Reasonable Steps to Recover Damages for Injury Suffered by Your Fund.* By Chet B. Waldman, Esq. Wolf Popper LLP * I use Plan, Fund or System to mean the same thing. 1
Plan Assets 2
The Fiduciary Duty to Recover Plan/Fund Assets A fiduciary has a duty to take reasonable steps to realize on claims that are property of the trust, including claims in tort... * A fiduciary cannot properly abandon claims affecting the trust property unless it reasonably appears that a suit would be futile or the expense of the litigation or the character of the claim would make it reasonable not to bring suit. ** * E. Weiss & J. Beckerman, Let the Money Do the Monitoring. How Institutional Investors Can Reduce Agency Costs in Securities Class Actions. 104 Yale L.J. 2053-2113 (1995) quoting Restatement (Second) of Trusts Sec. 177 (1959). ** Id. 3
If a third person commits a tort against trust property, the trustee has a duty to take reasonable steps to compel the tortfeasor to redress the injury * The court in that case recognized that [w]hen the trustee fails to bring suit against a third party tortfeasor, the beneficiaries may properly bring an action against the trustees and third parties as co-defendants. ** * Witzman v. Gross, 148 F.3d 988, 990 (8 th Cir. 1998) quoting Uselman v. Uselman, 464 N.W.2d 130, 137 (Minn. 1990); see also Anoka Orthopaedic Associates, P.A. v. Mutschler, 773 F. Supp 158, 168 n. 16 (D. Minn. 1991). * Witzman, 148 F.3d at 991, citing Uselman, 464 N.W.2d at 137-38; see also Anoka Orthopaedic, 773 F.Supp. at 168. 4
Audience Response Question #1: If monies are stolen from your System s pension fund, and you know who took it, as a trustee, do you have a fiduciary responsibility to commence a litigation to recover the monies? a. Yes b. No c. Maybe 5
BIG BIZ SCAMS Sunbeam Chainsaw Al Dunlap s company and Arthur Andersen charged by SEC with accounting fraud 6
WORLDCON 7
The Victims Employees who purchased stock for their retirement Individual Investors Institutional Investors and Pension Funds Pension Funds collectively have lost $ Billions. 8
Audience Response Question #2: Has your Fund ever lost money on an investment (stocks, bonds, mutual funds, hedge funds, etc.) due to a corporate fraud, breach of fiduciary duty or other unlawful conduct? a. Yes b. No c. I don t know 9
National Association of Pension Funds: [I]t seems self-evident that trustees have a duty to protect the assets in their scheme and that they should therefore at the very least not neglect opportunities to recoup losses. -- Securities Litigation, Questions for Trustees, NAPF March, 2007 10
U.S. Department of Labor: Assets include not only the securities held, but also the rights attached to those securities and it would be a breach of fiduciary duty not to pursue a valid [securities fraud] claim. -- Secretary of Labor s Memorandum of Law as Amicus Curie, In re Telxon Corp. Sec. Litig., 67 F.Supp.2d 803 (N.D. Ohio, 1999) 11
Securities Litigation Lawsuits to recover money damages Defendants make false statements about company s business, performance or inflate profits through accounting manipulation Information that defendants statements were untrue comes out stock value declines causing damages to investors Class or individual actions 12
What is a Class Action? Definition: Representative lawsuit on behalf of a group of similarly situated persons. E.g.: Shareholders of the same corporation who were misled by the same written false statements. E.g.: Purchasers of the same car model which has defective brakes. One class member can represent everybody in that Class. 13
Class Action Participants and Roles a. Class Representative/Plaintiff (i) Has standing (ii) Is adequate and typical 1. Has no conflict of interest; 2. Has retained competent, experienced counsel. (iii) Key Duties of Class Representative 1. Act in best interest of the Class 2. Watchdog over counsel a) ensure case is being prosecuted; b) ensure any settlement of action is in best interest of the Class, not lawyers. 14
Class Action Participants and Roles b. Absent Class Members (i) Have no role in litigation; (ii) If case is brought to recover money for the Class, Class members can do nothing and stay in Class or opt-out of the case to bring their own individual action. After Class is certified by Court or case is settled, Notice is sent to Class members. Proofs of Claim are sent out for Class members to fill out. c. Defendants alleged wrongdoers. 15
Advantages of a Class Action a. More powerful litigation posture (i.e. leverage ) for Plaintiffs; b. Greater likelihood of attracting top legal representation for Plaintiffs: 1. Primarily contingent fee arrangements with counsel in class actions. c. Public Policy (i) Greater deterrent of wrongdoing because of potential for larger recoveries; (ii) All class members may participate in recovery of damages not just largest, best financed class members. d. Allows defendants to litigate in one forum and resolve a litigation globally (i.e., at one time). 16
Disadvantages of a Class Action A Class member may get a smaller recovery than if it had brought an individual action or an action with a small group of other shareholders. However, amount of damages must be great (in the millions of dollars) to seriously consider pursuing an individual action. Legal Fees may be high if Class representative is not sophisticated. 17
Private Securities Litigation Reform Act of 1995 Private securities litigation is an indispensable tool with which defrauded investors can recover their losses without having to rely upon government action. * A primary goal of the Reform Act was to encourage institutional investors to take a leadership role in securities actions to increase overall recoveries. * Joint U.S. House and Senate Conference Committee 18
The Fiduciary Duty to Investigate Whether to Become Involved in Litigation Not only is a fiduciary not prohibited from serving as a lead plaintiff, the Secretary believes that a fiduciary has an affirmative duty to determine whether it would be in the interest of the plan participants to do so. The Secretary has previously taken the position that it may not only be prudent to initiate litigation, but also a breach of a fiduciary s duty to not pursue a valid claim. * * Secretary of Labor s Memorandum of Law as Amicus Curiae in Support of FSBA s Motion For Appointment As Lead Plaintiff in the Bragdon v. Telxon Corporation litigation, Civ. A. No. 5:98-CV-2876 (N.D. Ohio), at p. 6. 19
The U.S. Department of Labor s View [A] fiduciary may have a duty to serve as lead plaintiff where no single individual has sufficient interest or resources to serve in such capacity or where, as a large stakeholder, the fiduciary has an interest in assuring that an alternate class representative with a less substantial stake in the outcome does not unduly compromise the interests of the class in settlement, fail to vigorously prosecute the actions, or fail to protect the interests of the class vis a vis its attorneys. * * Secretary of Labor s Memorandum of Law as Amicus Curiae in Support of FSBA s Motion For Appointment As Lead Plaintiff in the Bragdon v. Telxon Corporation litigation, Civ. A. No. 5:98-CV-2876 (N.D. Ohio), at p. 7. 20
Pension Funds Have Made Valuable Contributions To Securities Litigations In U.S. Courts Recoveries are larger Legal fees are lower Corporate governance measures have been instituted 21
Total Shareholder Recoveries Since 1999, shareholders have recovered approximately $77 Billion... Number of Securities Class Action Recoveries Since 1999 Number of Total Settlement Year Settlements Dollars (in Billions) 1999 63 $ 1,231 2000 89 5,154 2001 93 2,067 2002 109 2,949 2003 94 2,642 2004 109 3,517 2005 118 9,989 2006 91 18,262 2007 110 7,186 2008 97 3,094 2009 103 3,830 2010 110 11,531 2011 87 2,623 2012 92 3,312 Total 1,365 $ 77,387 22
Institutional Investors Who Applied To Be A Lead Plaintiff In The Enron Securities Litigation Florida State Board of Administration The Regents of the University of California New York City Pension Fund The State of Georgia The State of Ohio The State of Washington Local 710 Pension Fund Archdiocese of Milwaukee Supporting Fund Amalgamated Bank Deutsche Asset Management 23
Institutional Investors Who Have Served As, Or Otherwise Applied To Be, Lead Plaintiffs In Securities Class Actions Illinois State Pension Systems CalPERS State of New York State of New Jersey State of Minnesota State of Wisconsin Investment Board ( SWIB ) State of Connecticut City of Philadelphia 24
Audience Response Question #3: Has your Fund ever been involved in a litigation to recover monies it lost on an investment? a. Yes b. No c. I don t know 25
Advantages and Disadvantages of Being a Lead Plaintiff Pros to being a named plaintiff in a class litigation: Participating as a named plaintiff will ensure that your interests are adequately represented Role in litigation strategy and settlement Potential recoupment of incentive fee and/or expenses beyond pro rata share of damages Satisfying one s fiduciary duties Cons to being a named plaintiff in a class litigation: Some time and effort in participating in discovery and engaging in litigation and settlement strategy. An absent class member can: Request exclusion from the class when notice to mailed to investors if it does not like the progress of the litigation or the amount of the settlement (if applicable) 26
Settlement Claims Management Since 1995 more than $12 billion, or 20% of settlement funds, have gone unclaimed Studies have found that... Only 33% of institutions actually collected their settlement funds 27
Council of Institutional Investors: An increasing number of plan sponsors, litigation experts, plan counsel, academics and not-for-profit and professional organizations generally agree that, at a minimum, pension fund fiduciaries are required to monitor securities litigation and pursue recovery when securities actions are settled or judgments are awarded. 28
Audience Response Question #4: Does your Fund have a process in place to ensure that proof of claim forms related to class action settlements are being filled out on its behalf to recover monies? a. Yes b. No c. I don t know 29
Portfolio Monitoring Free Service Identifies securities class action settlements to ensure Fund files proof of claim forms and recovers monies Monitors plan assets for losses resulting from fraud, misrepresentations and breach of fiduciary duty Provides current monitoring of losses in specific securities, where linked to violations by company, executives or others Provides evaluation of those losses and recommendation as to whether further action is required 30
Non-U.S. Investments A U.S. Supreme Court decision handed down in 2010 in a case titled: Morrison v. Nat l Australian Bank Ltd. held that an investor in a security of a company purchased over a non-u.s. exchange cannot sue for a securities fraud in a U.S. Court. 31
Audience Response Question #5: Does your Fund invest in securities purchased on a foreign exchange? a. Yes b. No c. I don t know 32
The Importance Of Monitoring Securities Class Actions Larson v. J.P. Morgan Chase & Co., Civ. No. 8-1045, 2008 U.S. Dist. LEXIS 13298 (7 th Cir. Jun. 23, 2008) In Larson, the 7 th Circuit Court of Appeals sent a strong message to public pension funds: Fiduciaries are assumed to be monitoring securities class actions to protect viable claims and ensure recovery of funds lost as a result of securities fraud 33
Audience Response Question #6: Does your Fund have a securities portfolio monitoring program in place? a. Yes b. No c. I don t know 34
How Many Law Firms Does A Fund Need? A firm can be both reviewer, recommender, and litigator as the securities monitoring, evaluation and litigation special outside counsel to a fund Recent federal court cases have questioned a client/lawyer s conflict of interest status with only one firm performing all roles simultaneously Judge Rakoff of the U.S. District Court, Southern District of New York stated in an opinion in the Merrill Lynch case on May 26, 2009 that this practice fosters the very tendencies toward lawyer-driven litigation that the PSLRA was designed to curtail. and questioned whether the seeming conflict of interest inherent in this arrangement violated ethical prohibitions. Id. at p. 5. Clients should engage at least 2 firms for this service to analyze and recommend a course of action and rotate the litigation function to the other firm(s) if client decides to seek lead plaintiff in a case. In this manner, your Fund will have the benefit of similar or conflicting analysis and avoid the ethical prohibitions of a conflict of interest. 35
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