Friday, February 10, 2012

PERS a "professional plaintiff"?

Alison Frankel's "On the Case" blog discusses litigation by PERS:
In a Feb. 9 response to the MissPERS bid, Robbins Geller argued that the Private Securities Litigation Reform Act bars investors from serving as lead plaintiff in more than five cases in any three-year period. "MPERS admits that it has been appointed as lead plaintiff in at least six cases in the last three years," the Robbins Geller brief said. "And MPERS is currently preoccupied with so many cases that it has apparently forgotten to advise the court of its involvement in at least one additional case in which MPERS was recently appointed lead plaintiff. Of equal concern is MPERS's apparent intention to continue to collect additional lead plaintiff appointments, as it recently filed yet another motion to be appointed lead plaintiff in a [securities class] action [against Green Mountain coffee]." By the New England fund's count, MissPERS has been a lead plaintiff in "as many as 16" cases in the last three years -- three times as many as the PSLRA limit.

Courts frequently make exceptions to the five-case rule for institutional investors like the Mississippi pension fund, but Robbins Geller pointed to a case called In re McKesson HBOC, in which U.S. District Judge Ronald Whyte of San Jose federal court refused to appoint MissPERS as lead plaintiff because of its commitments in other cases.

MissPERS uses a lot of different plaintiffs firms. (As lead counsel in the just-settled $315 million Merrill Lynch mortgage-backed securities class action, for instance, the fund was represented by Bernstein Litowitz Berger & Grossmann.) But one firm that doesn't work for MissPERS is Robbins Geller, which is one of the reasons this lead plaintiff (and lead counsel) fight may get ugly.
Hm, is anyone up in arms over the use of private counsel here? Or does that just apply to the AG's office?


  1. I thought the AG's office is who has hired the private counsel in these MissPERS cases.

  2. Right, like in the AWP cases too.

  3. Anderson - your last Hmmm. ?? Hood is the one who hired Bernstein and developed these cases. Bernstein has been hired by Hood at least 8 times in the last year (according to his recent online posting of outside contracts). This isn't a MSPERS deal, its an AG deal. The application to the pending House bill is whether MSPERS 'wanted' to proceed with this litigation and whether the position taken by Hood is the same as MSPERS' position. If it is, then nothing in the pending House bill applies. If MSPERS has a different opinion, then would the 'outside counsel' issue arise.

    Unless I am misreading your "Hmmmmm".