A $2.5 billion settlement of class-action securities lawsuits against Time Warner was hailed as one of the biggest in history when it was announced last year, but some who decided to opt out of the deal are faring much better than those who took it.
An unexpectedly large settlement for one of the holdouts, the state of Alaska, is raising questions about the nationwide pact and whether Time Warner's reserves are sufficient to absorb all of its liability to those who bailed out.
Time Warner agreed this week to pay Alaska $50 million to compensate it for investment losses alleged to total about $60 million, an attorney who represented the state, Richard Heimann, said. That result, amounting to about 83 cents a dollar allegedly lost, appears to be far superior to the payout in the nationwide settlement, which has not been calculated officially but is likely to be a few cents on the dollar, according to lawyers involved in the litigation.
"Our settlement is far and away more than what we would have received ó 50 times more than what we would have received if we had remained in the class," Mr. Heimann told The New York Sun. He noted that the case was filed in state court in Alaska and took advantage of a state "blue sky" law that prohibits fraud in securities deals. "The Alaska statute was particularly favorable," the attorney said.
Mr. Heimann said he believed the size of the settlement may have reflected a concern on Time Warner's part that the Alaska litigation could have had a trickle-down effect on dozens of similar cases pending against the company. "Had we continued to litigate, we likely would have obtained rulings by the court in Alaska that could have had some impact on those cases," the San Francisco-based lawyer said.
About 100 institutional investors who opted out of the settlement have signed up with a prominent plaintiffs' lawyer, William Lerach of San Diego. He said the largest suits, those involving California state pension funds and the state university system, are scheduled to go to trial in California state court in April. "Efforts to settle these claims have completely failed," the attorney said.
Asked if his clients will fare better than those who joined the national settlement, Mr. Lerach said, "There's no question we're getting tons more dollars."
Mr. Heimann said he was not certain that the result Alaska achieved could be replicated in other cases. "I don't really think it serves as a benchmark of any sort," he said.
Most of the cases stem from allegations that the Web firm that took over Time Warner in 2001, America Online, tried to weather the dot-com downturn through aggressive advertising deals that were not properly accounted for in financial statements. The Washington Post reported in July 2002 that AOL continued to project strong ad revenue, despite the fact that many advertisers were on the brink of collapse. AOL also made some unusual deals in which it, in essence, paid companies that then advertised on AOL.
The company, formerly known as AOL/Time Warner, investigated and made restatements of its earnings on more than $750 million in ad deals. The firm has insisted that the accounting mistakes did not cause losses to investors, but last year it agreed to pay $300 million to settle civil fraud charges brought by the Securities and Exchange Commission. The Department of Justice said it believed the company's conduct was criminal but entered into an agreement not to prosecute the firm if it implemented certain reforms.
A law professor critical of some class action lawsuits said the Alaska result was remarkable. "This is virtually unique, or at least unheard of, as a percent of the alleged harm or the alleged damages," Lester Brickman of the Cardozo School of Law said.
While Alaska may be the most successful opt-out plaintiff thus far, others have also improved their lot by going it alone. A Dutch retirement fund, Stichting Pensioenfonds ABP, won a $20 million settlement from Time Warner earlier this year on what ABP said was $150 million in investment losses. ABP's chief counsel told a Dutch newspaper, Het Financieele Dagblad, that the fund would have gotten only $1 million to $3 million if it had stayed in the class.
Another institutional investor that opted out, Janus Capital Group, recently settled with Time Warner, a Janus spokesman, Blair Johnson, said. He declined to describe the terms of the deal.
Mr. Brickman said he remains skeptical of the value of such suits. "They're transferring the assets of current Time Warner shareholders to prior Time Warner shareholders, with a substantial transaction fee charged by the lawyers," he said. "If you look at the totality of most securities litigation, it involves transferring money from your left pocket to your right pocket, subject to a transfer fee of as high as 30% or 35%."
When it announced the proposed class action settlement last year, Time Warner said it was putting aside another $600 million to cover cases brought by those who chose to opt out. The reserve was also intended to cover claims brought by the retirement plans of Time Warner employees and so-called derivative cases involving allegations that Time Warner executives and board members breached their fiduciary duty to shareholders.
As of October 30, about $354 million of the reserve was committed for various settlements, including a $100 million payment to the employee retirement funds, according to a recent filing with federal regulators.
A spokeswoman for Time Warner, Susan Duffy, declined to comment yesterday on the Alaska settlement. There was no indication from the firm that it plans to raise its litigation reserve.
In a little-noted ruling in October, the federal judge overseeing the class settlement, Shirley Kram of Manhattan, awarded $147.5 million in fees and $3.4 million in expenses to the lead attorneys in the case, Heins, Mills & Olson. The Minneapolis firm represented the plaintiff found to have the most at stake in the litigation, the Minnesota State Board of Investment.
Judge Kram said the award, which represents 5.9% of the amount recovered for the class, "properly rewards class counsel for their vigorous advocacy of the class's interests over four years of litigation." Court records indicate that the Minnesota pension agency had agreed to pay Heins, Mills up to 17% of any recovery, but that the firm and the state later agreed that figure was too high in view of the $2.5 billion settlement.
The deadline to file claims for that money passed in February, but the funds have yet to be distributed. An investor from St. Louis, Scott Spielberg, told the Sun that officials at the firm processing the claims, Gilardi & Co., recently backed off a prediction that the money would be out by year's end. Mr. Spielberg claims that when he asked about the reason for the delay, he was told that between 200,000 and 600,000 claim forms had been "misplaced" and were recently discovered.
A spokesman for Gilardi, Daniel Marotto, told the Sun that Mr. Spielberg's account was "not true at all." He referred questions to Heins, Mills. A partner there, Stacey Mills, said delays were due to a larger than expected number of claims. "Claims came in at double what we had estimated," she said. "It takes a long time to put it all together."
Ms. Mills said that until the final calculations are done it is premature to compare the result for class members to those that opted out.
Asked why it apparently took eight months to tally the number of claims, Ms. Mills said she was unsure. The attorney said she expected checks to go out in March, subject to court approval. "This will be one of the fastest payouts in history," she said.
Some confusion persists over the number of claims filed. In her April ruling approving the deal, Judge Kram cited an estimate of 600,000. Ms. Mills said the early estimate was 400,000, but ultimately nearly 800,000 were received. A report submitted in September by a special master appointed to examine the fee request, David Pikus, asserted that about 830,000 AOL/Time Warner claims were submitted, but Mr. Pikus seemed to draw that statistic from an entirely separate case involving WorldCom, which drew 830,000 claims. He did not respond to an e-mail message about the apparent discrepancy.
Mr. Spielberg said he was concerned about the shifting numbers and time frames. "It's very suspicious," he said. "There needs to be an audit of all these claims."