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Floyd Norris comments on finance and the economy at nytimes.com/economix.
This article has been revised to reflect the following correction:
Correction: September 14, 2013
An earlier version of this article incorrectly identified the German party that formed a coalition with the Christian Democrats, Angela Merkel’s party. The coalition is with the Free Democrats, not the Liberal Democrats.
Kimihiro Hoshino/Agence France-Presse — Getty ImagesMichael S. Dell, founder of the computer company that bears his name.9:21 p.m. | Updated
Dell bought itself six more days to win backing for its proposed $24.4 billion sale to its founder, but the fight for additional support remained tough.
On Thursday, Dell, the computer maker, adjourned a meeting for shareholders to vote on the deal only minutes after opening the gathering. The vote is now scheduled for July 24 at 6 p.m.
Thursday’s decision, which many had expected, prolongs the drama surrounding the former giant of the personal computer industry. Dell has been shrouded in uncertainty for several months, as investors have questioned whether the $13.65-a-share bid by Michael S. Dell and the investment firm Silver Lake would succeed.
The meeting was adjourned after preliminary tallies showed that the deal would almost certainly have been defeated. With more time, a committee of Dell’s board and the company’s proposed buyers will try to twist more arms.
The two groups have already made headway. On Wednesday night, a number of big institutional investors switched their votes to “yes,” people who had been briefed on the matter said. Those investors included big asset managers like the Vanguard Group, BlackRock, the State Street Corporation, the Bank of New York Mellon and Invesco.
For the votes already cast, the race looks like a dead heat, one of these people said. But an estimated 23 percent of Dell votes have not been cast, effectively counting as no votes. And any votes can be changed before the new shareholder meeting, meaning that the landscape may change yet again.
The bar for approving the deal is high. More than 42 percent of Dell’s shares would have to be cast in favor of the deal. The billionaire Carl C. Icahn and Southeastern Asset Management, who have proposed an alternative to the leveraged buyout, together own almost 12.7 percent.
“It is unfortunate, although not surprising, that Dell’s board and special committee have delayed the date of the special meeting at which stockholders can vote on the Michael Dell/Silver Lake freeze out transaction,” Mr. Icahn and Southeastern said in a statement. “We believe that this delay reflects the unhappiness of Dell stockholders with the Michael Dell/Silver Lake offer, which we believe substantially undervalues the company.”
Instead, Mr. Icahn and Southeastern have proposed that the company buy back 1.1 billion shares for $14 each, and offer warrants to buy additional shares for $20 each. The two investors valued their plan at $15.50 to $18. But the committee of Dell’s board rejected the idea as too risky and not in the best interests of other shareholders.
Both sides have argued that Dell must continue to move away from personal computer manufacturing, which once propelled its profits but now weighs down its prospects. The embattled business is trying to build a more profitable corporate software and services operation.
But Mr. Dell and Silver Lake argue that such a transformation can only succeed if carried out in private, away from analysts and public investors. Mr. Icahn and Southeastern dismiss that contention, while arguing that the current offer is too low.
Many investors appear to hope that the prospect of defeat will force Mr. Dell into raising the bid. He acquiesced before, increasing the purchase price to its current level from $13.60.
The committee will try to persuade the bidders in raise their price again, the people briefed on the matter said. But people close to Mr. Dell and Silver Lake insist that no such increase is coming, given the declining financial health of the company and the overall weakness of the personal computer industry.
If that is the case, the Dell committee will likely seek a letter from Mr. Dell and Silver Lake confirming that $13.65 a share is their best-and-final offer, erasing any illusions about an increase. Shares in Dell rose 1.9 percent on Thursday, to $13.12, suggesting that investors feel somewhat more optimistic that the buyout will succeed.
Jack Ewing reported from Frankfurt.
Clockwise from top left, Suzanne Hanover/Columbia Pictures; Sony Pictures Animation/Columbia Pictures; Columbia Pictures; Kimberley French/TriStar PicturesSony's newest film include, clockwise from top left, “This Is the End,” a comedy with James Franco, Jonah Hill, Craig Robinson, Seth Rogen, Jay Baruchel and Danny McBride; “The Smurfs 2,” with the voices of Katy Perry and the late Jonathan Winters; “After Earth,” with Will Smith and his son, Jaden; and “Elysium,” starring Matt Damon. NOWHERE is the opulence of Old Hollywood more palpable than on the Sony Pictures lot in Culver City. Arching just inside the front gate is an eight-story rainbow. This grand $1.6 million sculpture, a condition of a lot expansion, rose last year and became a symbolic link between past glories — “The Wizard of Oz” was filmed here — and current ones. Years of cutbacks have taken the shine off many studios, which now look like glorified factories. But Sony has preserved its lot as a perfect little movieland town: executive suites overflow with orchids, and cafes border a new park where employees sip lattes and stretch on the grass.
The mood extends beyond the walls of the 44 1/2-acre lot. Each year, Sony rents out the entire Ritz-Carlton Cancún Resort for an international press junket. Day after day, the studio flies in stars and hosts parties. “What I love about Sony,” said Matthew Tolmach, a former executive at the studio and now a producer based on its lot, “is that they still love movies, and they are incredibly aggressive about making all kinds of them.” He added: “It’s why I want to live there.” While competitors like Paramount, Disney and even Warner Brothers have gone through ferocious consolidation — all focusing more narrowly on blockbuster-style fantasies and superhero movies — Sony has been slower to give up the industry’s broad prerogatives. Its ambitions still stretch from R-rated romps to “The Amazing Spider-Man” to tiny foreign films to African-American comedies to Oscar-caliber dramas. That requires making a home not just for Mr. Tolmach but also for an extensive family of filmmakers and stars. Sometimes it pays. Last year, Sony Pictures Entertainment generated about $4.4 billion in global ticket sales, the highest in its history, powered by nine No. 1 hits including “Skyfall,” “Men in Black 3” and “The Vow.” It had an Oscar contender, “Zero Dark Thirty,” started a new franchise, “Hotel Transylvania,” and revived an old one, “21 Jump Street.” It ended the year in first place in market share. But in true Hollywood style, the Sony picture is not quite what it seems. The truth is that Sony finds itself at a troubled crossroads. Its go-to stars — Adam Sandler and Will Smith — are now a generation older than the prime film-going audience. And its steep production and infrastructure costs burden Sony with one of Hollywood’s worst profit margins. Sony’s entertainment unit had an operating margin of 6.5 percent in its last fiscal year; the figures at Warner Brothers, Disney, Paramount and 20th Century Fox were all higher. It is extremely hard to compare studios, analysts warn. Some make only movies, while others, like Sony, also make television shows. Financing arrangements and accounting vary. Sony does not divulge how much of its profit comes from movies and how much comes from its fast-growing television business. In its last fiscal year, the studio reported operating income of $509 million, up 40 percent from a year before. That result looks fantastic until you consider that roughly 65 percent of the total, analysts estimate, came from a relatively small television arm that includes shows like “Wheel of Fortune” and “Breaking Bad” as well as overseas cable channels. Analysts complain that the giant movie side is holding back profitability. The movie unit has also lost the man long seen as its protector inside Sony, the far-flung Japanese electronics behemoth. That man is Howard Stringer, who was Sony’s chief executive for seven years. Last year, he turned over the Sony helm to Kazuo Hirai. Mr. Stringer will retire as chairman next month. But the truly startling plot twist came on Tuesday. Daniel S. Loeb, the activist hedge fund manager known for successfully engineering a shake-up at Yahoo, told Mr. Hirai in a letter that his Third Point investment fund had become Sony’s largest shareholder, with a 6.5 percent stake. With that announcement, Mr. Loeb proposed breathtaking changes at the company, including a spin-off of up to 20 percent of its studio and other entertainment holdings. Overnight, Michael M. Lynton, the C.E.O. of both Sony Pictures and Sony Entertainment, and Amy Pascal, co-chairwoman of Sony Pictures, found themselves under a kind of weight rarely felt in Hollywood since the 1980s, when corporate raiders and high-yield bond peddlers like Saul Steinberg, the Bass brothers and Michael Milken delved into studios, looking for hidden value. “The entertainment businesses are important contributors to Sony’s growth and are not for sale,” Sony asserted in response to Mr. Loeb. “We look forward to continuing constructive dialogue with our shareholders as we pursue our strategy.” A spokeswoman for Mr. Lynton and Ms. Pascal said they had no comment. Several days before the disclosure of Mr. Loeb’s letter — in response to questions about the studio’s performance and its movie release lineup — Steve Elzer, a Sony spokesman, wrote in an e-mail, “We have been strong and steady not just for a year, but for longer than a decade.” He added, “We couldn’t be more confident in our slate this summer and through the year.”
Ricardo Moraes/Associated PressA branch of Banco do Brasil in Rio de Janeiro.SÃO PAULO, Brazil — The nation’s main stock exchange here forecast at the start of 2012 that 40 to 45 companies would hold initial public offerings to list their shares. Only three did.
“Very few transactions got done, and very few got done well,” said Fábio Nazari, head of equity capital markets at BTG Pactual. Many issuers encountered “very difficult conditions.”
Some of the lackluster performance can be chalked up to investors nervous about the global economy, but much also had to do with government policies in Brazil.
Last year, the country changed regulations and applied pressure to reduce consumer prices in several sectors, including retail banks and electricity utilities. Those measures may succeed in reducing consumer costs, but investors complained about lowered profit outlooks and accused the government of changing the rules in the middle of the game.
The government also used taxes and regulatory measures to weaken the currency in the first half of 2012. The value of the country’s currency, the real, fell more than 18 percent from March 1 to June 1, increasing uncertainty for foreign investors.
In Brazil, tough economic conditions also hung over the markets last year. In the first three quarters of 2012, the country’s gross domestic product rose only 0.7 percent. The Bovespa index was up 7.4 percent in 2012 — a healthy return but not the double-digit yearly gains it often had a few years ago.
Going into 2013, however, both government agencies and the private sector are taking steps to encourage start-ups and growth industries to raise financing through the public markets. In addition, analysts say, the most disruptive policy changes are already in place, so companies will find a more hospitable climate for stock offerings.
“We don’t foresee more big moves from the government,” Mr. Nazari said. “The past has been priced into valuations, and economic growth should pick up this year.”
Brazil has only 365 publicly traded companies, and they do not fully reflect the strength and diversity of the economy, the world’s seventh-largest. Commodities producers dominate the main stock index, even though industries that serve the country’s growing middle class are growing faster. But Mr. Nazari said at least 30 companies were ready to list in the next 12 to 18 months.
Two big stock offerings are already on tap to be listed on the BM&FBovespa, the main stock and futures exchange in Brazil.
Banco do Brasil, the state-controlled banking conglomerate, has announced that it intends to spin off its insurance operations into a new company, BB Seguridade, which would then hold an I.P.O. in the first half of 2013. The deal, if it goes through, could raise 5 billion reais.
And local investment banks say Votorantim Cimentos, Brazil’s largest cement producer, is preparing for an I.P.O. this year that would aim to raise 6 billion reais.
Investors may also turn to I.P.O.’s to seek better returns. After decades in which investors could buy short-term government bonds and earn double-digit returns, interest rates in Brazil have dropped. Most traditional fixed-income investments now hardly keep up with inflation.
Jean-Marc Etlin, chief executive of Itaú BBA Investment Bank, said that in an environment of relatively low interest rates, Brazilian investors had incentives to increase their stock market allocations, potentially creating demand for new companies.
Mr. Etlin also said there were thousands of Brazilian companies, mostly family owned, that could provide the basis for sustained activity.
“Brazil’s equity capital markets literally restarted just 10 years ago, with the first I.P.O. under new governance rules. We are still in the early stages,” he said.
Since Brazil’s first modern initial public offering in 2002, 70 percent of financing has come from foreign investors, so the market in the near term is dependent on global trends.
Brazil had a banner year in 2009, when companies raised nearly 46 billion reais on the public markets, according to the BM&FBovepsa (that figure includes I.P.O.’s and follow-on offerings, when companies issued additional shares). That year included I.P.O.’s of the bank Santander Brasil, which raised 13.2 billion reais, and the credit card operator Visanet, which raised 8.4 billion reais.
Renato Ejnisman, managing director of Bradesco BBI, Banco Bradesco’s investment banking division, said the market this year was not likely to return to 2009 levels, but “two or three times as many deals as in 2012 is pretty doable.”
Facundo Vazquez, head of Latin America equity capital markets at Bank of America Merrill Lynch, said foreign institutional investors preferred larger deals because they were more easily traded on the public markets, while risk-averse investors were more comfortable putting money into big companies that dominated their sectors.
Conglomerates looking to spin off units will be “the sweet spot,” he predicted, as such operations are big deals with plenty of liquidity from well-known companies.
Mr. Nazari of BTG Pactual also said that bigger offerings attracted more interest. “Right now, it is easier to do a $2 billion deal than a $200 million one,” he said. “A lot of investors are sitting on cash, waiting for the new year and for opportunities.”
The government itself is taking measures to facilitate listings, although more for smaller offerings. The Comissão de Valores Mobiliários, Brazil’s main securities regulator, announced in November that it would consider, on a case-by-case basis, easing requirements for smaller I.P.O.’s.
The equity arm of the state-owned development bank BNDES has 108 billion reais invested in nearly 400 companies, some of which are publicly traded giants like Petrobras, but most of which are privately held.
The BNDES, short for Banco Nacional do Desenvolvimento (or the National Development Bank in English), said in October that it intended to encourage or even oblige its start-ups and other companies to hold I.P.O.’s or at least join the exchange’s access tier, Bovespa Mais.
The Bovespa Mais requires companies to meet the same governance requirements as public companies and to go public, with at least 25 percent of their shares listed, within seven years.
Linx, a midsize software firm in which the BNDES holds a 21.7 percent stake, filed paperwork with regulators at the end of December to hold an I.P.O. this year. Linx is expected to try to raise 500 million reais.
Both government and private sector entities are also working together to present by March a package of regulatory and tax measures to pave the way for smaller I.P.O.’s, though the measures probably would not be in place until 2014.
In general, the change in regulations and investor demand could finally help end Brazil’s drought in I.P.O.’s, analysts said.
“In 10 years or less, we could easily see the number of listed companies in Brazil double,” said Mr. Nazari of BTG Pactual.
John Kolesidis/ReutersThe offices of Greece’s finance and development ministries in Athens.LONDON — The hedge funds holding Greek bonds may have become too greedy for their own good.
It’s just two days before the books close on a plan to reduce Greece’s debt load by having the country purchase its deeply discounted bonds from banks and investors. But bankers close to the transaction are voicing concerns that hedge funds might “blow up the deal” by holding out for a higher price.
If the buyback fails, they say, the consequences would be severe. Not only could the International Monetary Fund refuse to lend more money to Greece, but wealthy European countries, already skeptical about extending yet another round of loans to Greece, could withdraw their support. In that case, the 40 billion euro-plus lifeline that the country needs to remain solvent would be in jeopardy.
“People have fallen in love with their profits, and they have lost touch with the downside,” said Petros Christodoulou, a top executive at the National Bank of Greece who presided over the 100 billion euro private sector debt restructuring earlier this year as head of Greece’s debt management agency. “If this thing fails, there is total collapse, and the price goes to 20 cents.”
On Monday, Greece surprised the market by offering, in effect, to repurchase as much as 30 billion euros worth of bonds at an average price of 32 to 34 cents on the euro. That represents a roughly 5 percent premium to where the bonds were trading at the end of the previous week.
Having borrowed 10 billion euros, the net debt relief would be around 20 billion euros. European officials feel that would be enough to satisfy the I.M.F.’s demand that Greece try to bring its debt level below 110 percent of its gross domestic product by 2022.
But numerous hedge funds — many of which scooped up Greek bonds in the mid-teens this summer and are now sitting on fat profits — are telling Greece that they may not participate in the buyback. Instead, they are betting that the participation of Greek banks and short-term investors looking for a quick profit will be enough to get the deal done. In theory, the strategy would allow the hedge funds to cash out at prices of 40 cents and beyond when bonds rally in the aftermath.
Buying Greek bonds on the cheap has become one of the more popular trades of late in Europe. Hedge funds like Third Point, Brevan Howard, Greylock and others have accumulated significant amounts of the debt.
With the voluntary buyback deal in question, bankers are contemplating the use of sophisticated legal stratagems that could force investors to sell out at much lower prices.
One possibility would be for the government to buy back as much debt as it can at current prices. Then Greece would come back with another lower offer; as long as two thirds of investors agree to the deal, collective action clauses would kick in, forcing reluctant investors to accept the government’s terms. Reaching that percentage would be easier, bankers say, as this time more of the bonds would be in friendly hands and would vote accept the offer.
Legal experts have also pointed out potential loopholes in the contracts of the restructured bonds that would — if push came to shove — allow Greece to keep current on its bond payments to European governments while forcing private sector creditors to take a loss.
In a further reminder of Greece’s tenuous financial position, Standard and Poor’s lowered its rating for Greek debt to selective default in a response to the buyback action. The rating agency said that when the buyback is finished, Greece’s rating would return to its higher CCC level. Any move, however, by the country to deploy more forceful measures l would most likely result in Greek bonds keeping a selective default rating.
“I am shocked that hedge funds are taking this so lightly,” said a person with knowledge of the buyback discussions who spoke on condition of anonymity. “There is an 80 percent chance that the I.M.F. will walk if this deal does not work — these guys have become their own worst enemy.”
In a deal this sensitive and crucial, there is always a fair amount of chest puffing as opposite sides push for the best possible outcome. The threat by hedge funds to not participate may well be a bluff to force Greece to up its price. Greece, on the other hand, has little to gain by forcing a bad deal on foreign investors at a time when it is relying on them to drive the privatization process.
But, as in all games of chicken, the risk of collision — or, in this case, a botched deal that results in Greece not getting its desperately needed money — is never all that far away.
Jemal Countess/Getty Images for TimeVikram Pandit did not overhaul Citibank fast enough, or aggressively enough, in many investors’ eyes.As Michael L. Corbat takes up the reins at Citigroup, analysts and investors have a message for him: Shrink your bank fast, and be a lot more transparent as you do so.
Mr. Corbat takes over from Vikram S. Pandit as chief executive of Citigroup four difficult years after the financial crisis. In that period, Mr. Pandit steadied the banking behemoth and tried to focus Citi on the businesses he felt it could do best in. But, increasingly, many investors felt Citi’s overhaul wasn’t bold or quick enough.
“Citigroup has acted as if it’s too big to care,” said Mike Mayo, an analyst with CLSA, a brokerage firm. “That means that they are too big to be sensitive to shareholder concerns.”
Dissatisfaction with Citigroup’s progress motivated shareholders to vote against a $15 million pay package for Mr. Pandit in April. That vote came soon after the Federal Reserve turned down Citigroup’s plans to pay out capital to shareholders, a stinging indication that regulators still weren’t comfortable with the bank.
Since those expressions of discontent, Citigroup’s shares are sharply higher, though they are still down 89 percent since Mr. Pandit took over in December 2007. The stock trades at a pitiful valuation, reflecting two dominant views in the markets: Citigroup’s transformation has a long way to go, and its financial statements can be opaque.
The New York TimesThough relatively unknown to shareholders, Mr. Corbat starts with a reputation as an assiduous executive with a deep knowledge of Citigroup, where he has worked for nearly 30 years. He even got good reviews from people who have been skeptical about Citigroup and its management. Sheila C. Bair, the former head of the Federal Deposit Insurance Corporation, who clashed with Mr. Pandit, knew Mr. Corbat from interactions during the financial crisis.
“He was involved in several meetings with us,” said Ms. Bair, adding, “He was prepared and he knew his stuff.”
Now, some analysts believe Mr. Corbat could open the door to more radical moves at Citigroup.
“I think this is a real, long-term positive for Citi,” said Gerard Cassidy, a banking analyst with RBC Capital Markets.
Still, Mr. Corbat may have to impress quickly, given the pent-up frustrations among shareholders. His first public conference call as chief executive on Tuesday was not encouraging on that front. He seemed to disappoint analysts who wanted to hear Mr. Corbat express a greater desire to change things. Instead, he said, “Today’s changes do not alter the strategic direction of Citi, which we believe is a good one.”
In a memo to employees on Tuesday, Mr. Corbat sounded more emphatic. He wrote, “We must deliver sustained profitability, improved operating efficiency and shareholder returns.”
Part of Mr. Corbat’s job will be getting more out of Citigroup’s best-performing operations. Many of its international lending businesses do consistently well, and he may look for ways to make sure investors give greater recognition to this strength.
One idea may be to sell minority stakes in those operations in foreign stock markets, something that Spanish bank Santander has done recently with its Mexican unit. If those shares perform well, it would highlight the value in those businesses and perhaps lift Citigroup’s stock. Asked about this idea Tuesday, Mr. Corbat said, “I’ll look at those things and see what the numbers say.”
The burning question, though, is whether he has the resolve to get out of businesses that the bank doesn’t excel in, even if the near-term costs are high. Mr. Cassidy, the analyst, said Mr. Corbat should sell any business line that could not achieve the sort of returns that shareholders expected. Citigroup’s chairman, Michael E. O’Neill, aggressively reduced the size of Bank of Hawaii when he led it.
“He shrunk that bank by 30 percent; that’s what Citi has to do,” Mr. Cassidy said.
In particular, some investors would like Citigroup to be quicker about selling assets in Citi Holdings, the bad bank that Citigroup set up for its unwanted and loss-making assets. Mr. Corbat ran Citi Holdings until the end of last year. Faster sales might mean Citigroup would not get the best price possible for the $171 billion in assets in Citi Holdings. That could lead to higher losses when sales took place.
But selling assets more quickly could free up the capital the bank holds there. In turn, that could lead to a big improvement in Citigroup’s regulatory capital ratios, which investors watch very closely. Banks that can show they have little trouble meeting such ratios often get better valuations on their shares.
Citigroup’s investment bank is the other obvious target for shrinkage. Right now, it is enormous. The “securities and banking” division at Citigroup has $903 billion of assets. That’s only slightly less than Goldman Sachs’s assets. And Citi’s investment bank’s revenue has been uneven since the financial crisis.
The unit is also seen as a black box, something Mr. Corbat will have to tackle if he wants to regain investors’ confidence, analysts say. Citigroup’s disclosures aren’t as detailed as those of some other banks. For instance, each quarter, Goldman Sachs releases a critical number that shows how much profit it makes on its capital.
But Citigroup doesn’t do that for its investment bank; it simply doesn’t tell outsiders how much capital it has deployed in that unit. As a result, it could be making unproductive investments in Wall Street operations without shareholders knowing. This could be true in other business lines, as well.
The quandary for Mr. Corbat may be that, if he increases disclosure, investors may balk at any alarming numbers and dump the stock. Even so, he may have to risk that outcome.
“They have to open up the kimono,” Mr. Cassidy said.
Perhaps Mr. Corbat will become Citigroup’s quiet revolutionary, a leader who is prepared to make bold moves to win over, and win back, shareholders. He did offer up one button-down remark Tuesday that could provide a tidbit of hope to shareholders who are relying on him to redouble Citigroup’s remodeling. “I wouldn’t minimize the impact you can have on a place,” he said.
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.”