Still, lawyers for the plaintiffs were feeling pretty jubilant on Friday. Although the jury was not instructed to return a damages number, plaintiffs’ lawyers said in a press release that the verdict would “entitle investors to recover an estimated $9.3 billion.” They arrived at that number by assuming that all class members will submit claims and that the court will grant the amount of prejudgment interest the plaintiffs are seeking.
“This verdict shows that deserving investors can get just compensation through class actions, even against the strongest opposition. Very few of these cases go all the way to trial, and we are gratified at the outcome,” attorneys from the New York law firms Abbey Spanier Rodd & Abrams, Milberg, and Browne Woods George said in a joint statement. The lead plaintiff was the Retirement System for the General Employees of the City of Miami Beach.
Vivendi, which owns the world’s largest music company, was represented by Paul Saunders of Cravath, Swaine & Moore and James Quinn of Weil, Gotshal & Manges. Martin Perschetz of Schulte Roth & Zabel defended Hannezo, and Michael Malone of King & Spalding represented Messier.
The plaintiffs alleged that the defendants hid liquidity risks at the company, which led to a crisis in 2002. We asked plaintiffs attorney Matthew Gluck of Milberg why their side prevailed. “Look, this company almost went under and barely survived. There were lots of internal warnings, but on the outside they were telling people how wonderful things were,” said Gluck. “That was our case.”
The trial, which started in October, lasted over three months. It was only the ninth securities class action to be tried to a verdict since the passage of the Private Securities Litigation Reform Act, according to Adam Savett of RiskMetrics Group. It was also the first case to go to trial that was brought on behalf of both U.S. citizens and foreigners who held shares in a foreign company on foreign exchanges (thus the shorthand term, F-Cubed). Gluck predicted that by even the most conservative estimate, the final judgment will be the largest securities class action verdict ever.
Vivendi has promised a fight. On Friday, we spoke with Cravath’s Saunders, who sounded a bit like a politician after a loss at the polls. “We have just begun to fight,” said the former Army captain. “We’re not giving up.
Saunders said that no damages number could possibly be calculated yet. But he noted that the jury reduced the plaintiffs’ claim of inflation per share per day by nearly 50 percent. Saunders also said he would ask Manhattan federal district court judge Richard Holwell to throw the case out in post-trial briefing. If that fails, Vivendi will appeal to the Second Circuit. Among other things, Saunders said Vivendi would challenge the jury’s finding that Vivendi was responsible for statements made by Messier and Hannezo, even though the jury found that those individuals did not intend to deceive shareholders.
Vivendi would also challenge subject-matter jurisdiction on appeal, Saunders told us. The plaintiffs had argued that the case belonged in New York federal court in part because Messier and Hannezo spent nearly half their time in New York. Now that the Messier and Hannezo have been cleared of charges, Saunders suggested that Vivendi may be able to knock the case out.