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Thursday, March 19, 2009

Securities Lawsuits before scared, angry, fatalistic jurors

Well, it was bound to happen. People have lost money. Lots of people have lost lots of money. And they're pissed. They want to blame someone, anyone and they want their money back. So, they are filing lawsuits. Lots of lawsuits.

Because that's where the money is

I recently worked on a case in which a "Madoffian" villain absconded with tens of millions of dollars of his clients' money. He's in jail but that is of small consolation to his victims, many of whom have lost their lives' savings. Just as Bernie Madoff seemed to have used one particular account at Chase Manhattan Bank to perpetrate his scheme, this crook used one account at a local bank branch to steal over $25 million. Rather than investing the money, he just converted it to his personal use, making small payments to "investors" when necessary.

The victims of this Ponzi scheme, unable to collect from the crook, sued the bank, on the grounds that the bank was complicit in the crime. After all, the bank still has (a little) money. I am hearing similar stories from other trial consultants, concerning other investors suing other banks, accounting firms and lawyers for the misdeeds of their clients.

These lawsuits are all long-shots, of course, because proving negligence first requires proving that these defendants owed some legal duty to the plaintiffs (who were not customers). In the case I worked on, the bank clearly owed a duty not to lose the account holder's money, but it was a real stretch to argue that the bank owed a duty to the people who gave money to the account holder. (Does your bank owe any duty to your employer for what you do with your paycheck? Or to your family for how you choose to squander your Bar Mitzvah money?).

A bank does have an obligation to act if it knows that illegal activity is taking place. It is not enough, however, to show that someone at the bank suspected, should have known, or was negligent in not knowing that something illegal was going on. There are further obligations associated with money laundering statutes, but they only cover large cash transactions.

So, in short order, the plaintiffs lost their suit against the bank. Plaintiffs have been similarly unsuccessful to other suits I have heard about. Unless you can prove a knowing conspiracy, you'll be hard-pressed to collect from institutions peripheral to the actual fraud.

Juror anger flows freely in all directions

While the facts of this case are certainly interesting and timely, I think that many interesting things can be learned from the reactions of focus group participants in the pretrial research we ran for the case.

We ran a full-day multiple-panel focus group for this case. First, we offered the participants a very heavy-handed plaintiff's argument to see just what kinds of passions we might ignite. Well, half the group was ready to revoke the bank's license and lock up all its officers. This kind of hostility should not be too surprising in an environment in which banks are largely blamed for our financial meltdown. It became very clear that most participants did not differentiate among savings banks, investment banks, brokerage houses, hedge funds and mortgage companies. To most people, the entire "financial sector" is lumped together as one giant, evil monster. If you need to represent any financial institution in court, you'll need to work very hard to differentiate your client from other firms in the industry. Good luck with that.

We followed up in the afternoon with a presentation of the defense case, along with direct and cross-examination of the branch manager. Participants started to soften their stances a bit when it became clear that the bank employees really had no idea where the money was coming from and to what purpose it was being put.

The participants were still plenty angry. They just directed their criticism in multiple directions. They heaped lots of blame on the victims, expressing incredulity that anyone would pay so little attention to what was happening to their money. Many people adopted a "caveat emptor" attitude, pointing out that when they lost money in the market, no one was there to save their butts.

This raises the important issue of relative vs. absolute notions of fairness. In unfamiliar decision-making environments, it is common for people to reason from what they know. Jurors are always analogizing from the case facts to their own experiences. "Well, when my Aunt Agnes had her hip surgery, they insisted that she stay in the hospital for five nights, not just three." As such, in securities litigation, a juror will see a case through the lens of her own experiences and current situation. I expect that, as we move through these difficult economic times, jurors will be reluctant to "bail out" investors who have lost money (even through fraud). Everyone feels defrauded and jurors are unlikely to believe that others deserve special treatment (especially if those others are rich).

This relative evaluation process is certain to carry over to calculations of damage awards (and not only in securities cases). As jurors' own financial situations deteriorate, the baselines they use for assessing damages will decline. Their houses are worth less. The average salaries earned by various types of professions are perceived to have declined. Expectations about bonuses and commissions have gone down. As a result, I expect to see damage awards drop precipitously across the board.

The American Society of Trial Consultants, of which I am a member, has just launched a flash poll among its members concerning perceived changes in juror (and mock juror) behavior, in response to the market collapse and subsequent stimulus package. Once the results of this poll are released, I'll be sure to discuss them in a future blog entry. Stay tuned!

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