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Judge Raps Plaintiffs Counsel, Dismisses Class Action Against Washington Mutual
The American Lawyer
May 18, 2009
Last year, Bernstein Litowitz Berger & Grossmann filed a 388-page consolidated complaint on behalf of the Ontario Teachers' Pension Plan Board in the Washington Mutual securities class action. It named various former WaMu officers and directors, underwriters and the auditing firm Deloitte & Touche, alleging that they misled shareholders about the company's financial results.
But whatever the complaint had in heft (388 pages!) it apparently lacked in substance, at least in the view of Seattle federal district court judge Marsha Pechman. On Friday Pechman dismissed without prejudice all of the plaintiffs' Exchange Act claims and many of the Securities Act claims. In her ruling, the judge described the plaintiffs' pleadings as "verbose" and "disorganized."
"The Court remains mystified at counsel's failure to allege cohesive claims, submit helpful briefing, or prepare a response to the court's inquiry in advance of oral argument," Pechman wrote. "Plaintiffs' counsel cannot expect the court to engage in the necessary analysis when counsel is not prepared to do so."
She even threatened to remove Bernstein Litowitz as lead counsel. "If Plaintiffs' counsel are unable to rectify the problems identified in this order when they file an amended complaint," the opinion says, "the court may be obligated to review whether counsel can adequately represent the proposed class." (We called Bernstein Litowitz partner Chad Johnson, but didn't hear back.)
Pechman gave Bernstein Litowitz until June 15 to file an amended complaint.
The defense lawyer lineup in the case includes Simpson Thacher & Bartlett attorneys Barry Ostrager, Mary Kay Vyskocil, Rob Pfister and Gabe Miller for former WaMu officers; Ronald Berenstain of Perkins Coie for former WaMu outside directors; Barry Kaplan of Wilson Sonsini Goodrich & Rosati for former WaMu CEO Kerry Killinger; Peter Wald of Latham & Watkins for Deloitte; and Dean Kitchens of Gibson Dunn & Crutcher for the underwriters.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
