More Charges Dropped in Grasso Compensation Case

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The New York Sun

ALBANY —A midlevel New York appeals court today ordered the remaining state claims of excessive pay dismissed against former New York Stock Exchange Chairman Richard Grasso’s $187.5 million compensation package.

The Appellate Division of State Supreme Court said the attorney general’s authority to pursue the claims lapsed when the NYSE changed in 2005 from nonprofit to a for-profit corporation. Last week, the state’s Court of Appeals, its highest court, dismissed four common law claims against Mr. Grasso’s 2003 compensation package.

The midlevel court concluded today that seeking to recover money for two remaining claims under New York’s Not-For-Profit Corporation Law would simply benefit the NYSE’s private owners. The court also dismissed a claim against the Home Depot founder, Kenneth Langone, who was chairman of the exchange’s compensation committee and was accused of misleading other NYSE board members about Mr. Grasso’s pay.

Justice James McGuire wrote that based on case law and the “evident purpose” of the not-for-profit law, the attorney general’s authority to pursue the claims “lapsed” when the NYSE became a for-profit corporation. He wrote for the court majority.

A spokesman for state Attorney General Andrew Cuomo, Alex Detrick, said they are studying the decision. It will be up to Mr. Cuomo’s office whether to pursue this last piece of the case at the Court of Appeals.

In a lone dissent, Justice Angela Mazzarelli said the change in corporate status “has no effect whatsoever upon causes of action that were pending against the not-for-profit” when its status changed. Under the law, the attorney general also brings claims as the state’s chief law enforcement officer, not simply as a surrogate for the corporation, she wrote.

First launched by then Attorney General Eliot Spitzer, dubbed “the sheriff of Wall Street,” the state sought to recover money paid to Mr. Grasso, alleging it was excessive and constituted an unlawful transfer of NYSE assets and a breach of fiduciary duty at the NYSE.

The Court of Appeals concluded last week that the attorney general exceeded his authority with four claims that said the state can sue to protect the public interest. Instead, judges noted the NPCL contains specific provisions for addressing alleged fault by officers and directors.

“Mr. Grasso is gratified by the Appellate Division decision,” his attorney, Gershon Zweifach, said. He declined further comment.

Mr. Langone’s attorney, Gary Naftalis, said they were gratified with the decision to dismiss the case against Mr. Langone. “We always believed that this was a case that should never have been brought,” he said.

According to court documents, Mr. Grasso’s base salary from 1995 through 2002 was roughly $1.4 million, with bonuses that escalated to $10.6 million in 2002 from $900,000 in 1995. His 2003 agreement provided a lump sum of $139.5 million, with an additional $48 million payable over four years.

State attorneys argued that the NYSE compensation committee was hand-picked by Mr. Grasso and ignored a benchmark system in calculating his pay. They also noted several NYSE board members expressed disapproval of the 2003 package, which was left off a meeting agenda, then brought up and approved at the last minute when opponents were missing and others had no chance to review the details in advance.

The negative reaction to the compensation forced Mr. Grasso to resign, prompting an internal investigation and a request from the NYSE board for Mr. Spitzer and the federal Securities and Exchange Commission to investigate.

“This case demonstrates everything that can go wrong in setting executive compensation,” Mr. Spitzer said in filing the 2004 lawsuit. “The lack of proper information, the stifling of internal debate, the failure of board members to conduct proper inquiry and the unabashed pursuit of personal gain resulted in a wholly inappropriate and illegal compensation package.”


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