Hold On, Your Honor

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The New York Sun

Today, a colleague and I will deliver to the clerk of the Supreme Court of the State of New York a letter questioning the settlement in a class-action lawsuit regarding the sale of Dow Jones & Company to News Corp.

As former employees of the Wall Street Journal, Dow Jones was once our employer, and we remained shareholders in the company. Our letter is the only response we can devise to a baffling notice we received earlier this month that announced the terms of the settlement.

Nor are we alone in our bafflement. People all over the country get notices like this every day. I got one just this week sent to users of my cell phone model; last month it was to holders of a credit card I carry. So-called legislative reforms haven’t ended this litigation game; they just changed the rules a bit. Many of these suits are frivolous; some are perverse.

To understand this better, we decided to delve into the details of the Dow Jones suit, ostensibly brought on our behalf.

We started with the paperwork. The notice of settlement covered four printed pages, with 15 numbered paragraphs. Reading it pretty closely, we found that our attorneys were proposing to settle the case against the former Dow Jones Board and the Bancroft Family, the former controlling shareholders. What was in the settlement for us, we wondered? Nothing. What was in it for our lawyers? “[F]ees and expenses of up to $895,000, subject to Court approval.”

What had the suit been about? Rupert Murdoch’s offer of $60 per share for Dow Jones was announced on May 1, 2007. Two lawsuits were filed before the week was out, on behalf of us and all the other shareholders.

The two lawsuits, subsequently combined, ultimately alleged that the Bancrofts failed to get the highest price for the company and tried to get a premium just for their own shares, both directly and through fees to their advisors. But while the case was settled, the price per share never increased, and the Bancrofts did get money to pay their advisors.

What we got was the addition of two items to the proxy statement sent out back in November, before the deal was voted on by all Dow Jones shareholders — but after the Bancrofts had agreed to cast enough votes for the deal to make sure it went through.

First was a table on page 79 of the proxy containing Dow Jones’s internal projection for revenues, operating income, net income, and earnings per share for the years 2007, 2008, and 2009. We weren’t sure how much this nine-cell table added to the financial analysis done by Goldman Sachs that had already been included in the proxy statement (on pages 74 and 75), and if these same figures had been used to calculate various possible values for our shares.

The second disclosure we “won” was two sentences on page 59 of the proxy explaining why one member of the Dow Jones Board, Christopher Bancroft, had been asked to leave a meeting last July — “because he was interested in exploring other alternatives for Dow Jones.” But we already knew from reports in this and other newspapers that Mr. Bancroft opposed the Murdoch deal.

So that’s what we got from this lawsuit: two pieces of not very useful information. What did our lawyers get?

We asked Robert Harwood of the Harwood Feffer law firm two questions on this subject. First, how much in expense was incurred by “our” side in this litigation? Next, how many hours did our lawyers spend on the matter? We aimed to subtract the expenses from $895,000, and then divide by the number of hours to figure out the hourly rate the lawyers were placing on their own time.

Mr. Harwood told us that expenses had totaled about $18,000 and that he and his colleagues had spent about 725 hours on the matter. At their regular rates, he would have charged about $380,000 for this time, or an average hourly rate of about $525.

But in this case, he explained, he believed he was entitled to a success fee — the term he prefers is “multiplier on the lodestar” — of roughly another half million dollars. Put another way, our lawyers are seeking to be paid $877,000 for 725 hours of work at more than $1,200 an hour. A nice gig if you can get it. Mr. Harwood says that Dow Jones shareholders were “substantially benefitted” by the additional disclosures, and notes that the company’s lawyers agreed to his fee.

The attorneys for Dow Jones and News Corp. might have insisted that the fees in this matter — if any — be minimal, in line with what was accomplished. After all, any reduction in those fees would benefit Mr. Murdoch and News Corp., not us. But his lawyers seem to have just played along.

Dow Jones declined to explain why it accepted the $895,000 in fees. Had they balked, the closing of the acquisition might have been delayed by the litigation, perhaps for months. So the tradeoff of settling a pesky lawsuit for less than a million dollars to speed closure of a $5 billion deal could well have seemed an attractive conclusion to a familiar game.

And it is familiar. We know this situation — a “settlement” on behalf of all shareholders that yields them little, and their lawyers a lot — isn’t unusual. But that doesn’t mean it’s in the public interest. It’s not.

Of course, the attorneys’ fees in this case need to be approved by a justice of the New York State Supreme Court. Our letter is being delivered within the deadline for filing formal objections, although we are acting solely as journalists here. Maybe this case would be a good place to start bringing some reason to this arena.

Mr. Tofel is general manager of Pro-Publica, a new independent, nonprofit news organization.


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