On Supreme Court briefs, law firm names can usually be found toward the bottom, identifying the affiliation of the counsel of record.
But in a pair of cases now pending before the court, law firms are top-of-the-page petitioners, signaling a major new effort to convince the Supreme Court that lawyers and other “third parties” should not be sued in securities class actions.
Former solicitors general Walter Dellinger and Paul Clement have joined the fray, petitioning the high court to review an unwelcome ruling by the U.S. Court of Appeals for the 5th Circuit in a class action stemming from the notorious multi-billion dollar Allen Stanford Ponzi scheme. The court is scheduled to consider on Sept. 24 whether to grant reviews in two cases brought by law firms – Chadbourne & Parke v. Troice and Proskauer & Rose v. Troice – as well as a third brought by an insurance company, Willis of Colorado v. Troice.
The appeals court ruled that in spite of the federal Securities Litigation Uniform Standards Act (SLUSA), class actions stemming from the Stanford scheme could proceed in state courts against lawyers and insurers who allegedly facilitated the fraud. SLUSA, passed in 1998 in part to limit state class actions, bars such lawsuits alleging misrepresentations “in connection with” the purchase or sale of covered securities. The circuit found that the law did not preclude these class actions from being pursued in state courts because they also allege other misdeeds unrelated to securities transactions.
Dellinger, partner at O’Melveny & Myers, said in his petition on behalf of Chadbourne that the 5th Circuit ruling, which conflicts with several other circuits, opens the door to “significant forum-shopping opportunities” for plaintiffs who will rush to file their suits in Louisiana, Texas and Mississippi, the states in the 5th Circuit.
“This is a big deal not only for lawyers but others” tangentially related to alleged frauds, said Paul Clement of the Bancroft firm in D.C., who filed a petition for the Willis insurance firm. He asserted that the 5th Circuit standard, if upheld, would make it easier to sue the “wrong defendants” than the right ones, namely those directly responsible for the fraud.
This is not the first time that lawyers have tried to guard their turf by asking the court to keep law firms and others from being sued in class actions. Especially in a Ponzi scheme like Stanford’s, plaintiffs seek deep-pocket defendants other than the actual perpetrators, who may be bankrupt or in prison.
The court and Congress have been largely sympathetic, but the issue never quite goes away. In 2008, the court in Stoneridge v. Scientific-Atlanta limited suits filed under Rule 10b-5 to primary wrongdoers, not aiders or abettors. In Merrill Lynch, Pierce, Fenner & Smith v. Dabit in 2006, the court interpreted the SLUSA “in connection with” phrase broadly to preclude state lawsuits, stating that “it is enough that the fraud alleged ‘coincide’ with a securities transaction.”
But the word “coincide” has proven to be hard to define in the lower courts, encouraging plaintiffs to file in state courts anyway. In the cases before the court, according to Clement, foreign investors “did precisely what SLUSA sought to prevent: They filed class and mass actions under Texas and Louisiana state law.” A district court judge ruled that the suits were barred by SLUSA, but the 5th Circuit reversed. The appeals panel said the word “coincide” from Dabit was “not particularly descriptive,” and found that some of the allegations were “tangential” to the alleged fraudulent transactions, allowing the suits to go forward.
Briefs filed by plantiffs’ groups assert that the 5th Circuit’s ruling was correct and did not a significant break from other circuits meriting Supreme Court review.
But in the view of the law firms petitioning the Supreme Court, the justices need to step in and bring uniformity that will stem the flow of third-party class actions. “The confusion engendered by the Fifth Circuit’s decision … presents an imminent and significant risk that should be resolved at the earliest opportunity,” said James Rouhandeh of Davis Polk & Wardwell, author of the petition on behalf of Proskauer Rose.
Tony Mauro can be contacted at email@example.com.