Tellabs — A Continuing Saga

Many commentators saw the Supreme Court’s decision in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499 (2007) last year as “pro-business,” just one more in a line of rulings from the Robert’s Court favorable to business. Before that label attaches however, a review of the outcome is in order.

In Tellabs , the Court held that “a plaintiff alleging fraud in a Section 10(b) action … must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference.” While many focused on the Court’s use of words such as “cogent” to describe the inference, in fact, the test is one of equipoise. Stated differently, the inference of scienter need only be equal to those which point to innocence to allow a plaintiff’s complaint to move into discovery.

The Supreme Court’s so-called pro-business decision has actually had the effect of reducing pleading standards in two circuits. Mississippi Public Employees’ Retirement System v. Boston Scientific Corp., 2008 WL 173590 (9th Cir. Apr. 16, 2008); ACA Financial Guaranty Corp. v. Advest, Inc., 512 F.3d 46 (1st Cir. 2008).

In others, the impact is debatable. Consider, for example, the Seventh Circuit, which initially ruled on the case. Prior to the Supreme Court decision, the Seventh Circuit held that plaintiffs had adequately pled a claim under the Private Securities Reform Act as to the company and defendant Notebaert. Makor Issues & Rights, Ltd. V. Tellabs, Inc. 437 F.3d 588 (7th Cir. 2005).

The Supreme Court did not apply its ruling to the facts. Rather, the Court left the application of its ruling to the Seventh Circuit. Applying the new Tellabs test, the Circuit Court reached the same conclusion as in its earlier opinion – the claims were adequate and could proceed. The case was sent back to the district court. Makor Issues & Rights, Ltd. V. Tellabs, Inc., 513 F.3d 702 (7th Cir. 2008).

Last week, the latest chapter in this long running saga was penned. In a ruling on May 23, 2008, the district court dismissed a claim for insider trading under Exchange Act Section 20A against defendant Brick, another company executive. Previously the Section 10(b) claim had also been dismissed against Mr. Brick, leaving only a Section 20(a) claim for control person liability as to him.

On the insider trading claim, the court held that to sustain a Section 20A cause of action, plaintiffs must plead a violation of “this title or the rules or regulations thereunder by purchasing or selling a security while in possession of material, nonpublic information.” Under the plain language of the Section, the court concluded the violation of the title plaintiff must plead is insider trading, not a Section 20(a) claim. Since the Section 10(b) claim had been previously dismissed as to defendant Brick, the court dismissed the Section 20A claim.

Nevertheless, the case is still in litigation. The claims which were before the Supreme Court are proceeding, leaving one to wonder whether the Supreme Court’s decision was really “pro-business.”

Cooperation Credit For Prohibiting Future Violations

The SEC has long encouraged issuers to self-report, remediate and cooperate with its investigations. In return, the Commission offers the prospect of cooperation credit, that is, a sanction which is less than that which might otherwise have been imposed. Just what constitutes cooperation to yield cooperation credit in any given case is often difficult to determine. The Commission discusses the concept in its 2001 Seaboard Release, as does DOJ in its McNulty memo and the U.S. Sentencing Commission in its Guidelines. The Commission also acknowledges cooperation in its litigation and press releases. Yet, what constitutes cooperation and its impact on a case is, at best, difficult to determine and often leaves issuers to guess as to how best to obtain it.

A settled administrative proceeding filed on Tuesday, along with two earlier similar actions, sheds some light on this issue. In the Matter of First Southwest Company, Adm. Proc. File No. 3-13046 (May 27, 2008) (“First Southwest”); In the Matter of Citigroup Global Markets, Inc., successor by merger to Legg Mason Wood Walker, Inc., Adm. Pro. File No. 3-12629 (May 7, 2007) (“Legg Mason”); In the Matter of Bear, Stearns & Co., Inc., et. al., Adm. Proc. File No. 3-12310 (May 31, 2006). Each case involves the auction rates securities market. Each alleges improper conduct. In each, the Commission states that cooperation credit. In each the Commission states that it encourages firms to provide comprehensive information to the staff in industry wide investigations.

The settlements in each case can be summarized as follows:

1) First Southwest

a. The conduct: (i) Intervention in the market without adequate disclosure to prevent auctions from failing; and (ii) submitting bids to prevent the all-holder rate without adequate disclosure.

b. The sanction: (i) a censure; (ii) a C&D based on Section 17(a)(2); and (iii) a penalty of $150,000.

c. Cooperation credit: The company (i) cooperated; (ii) had a small market share; but (iii) “did not report to the Commission the practices” which are alleged to constitute violations.

2) Legg Mason

a. The conduct: Intervened in the market to prevent failed auctions without adequate disclosure.

b. The sanction: (i) a censure; (ii) a C&D based on Section 17(a)(2); and (iii) a penalty of $200,000.

c. Cooperation credit: The company (i) cooperated; (ii) had a small market share; but (iii) “reported the practices … [alleged to be violations] later than the broker-dealers in the …” [Bear Stearns settlement]

3) Bear Stearns – included 14 major firms as respondents.

a. The conduct: Each of the firms engaged in one or more of the following practices according to the Order for Proceedings (which describes each in detail): (i) completion of open or market bids: (ii) intervention in auctions; (iii) prioritization of bids; (iv) the submission or revision of bids after deadlines; (v) allocation of securities; (vi) partial orders; (vii) express or tacit understandings to provide higher returns; and (viii) price talk.

b. The sanction: Each firm agreed to the following: (i) censure; (ii) C&D based on Section 17(a)(2); and (iii) a financial penalty based on market share. Those with the largest market share consented to a $1.5 million penalty while those with a small market share consented to a $125,000 penalty.

c. Cooperation credit: According to the Commission all Respondents cooperated and voluntarily disclosed the practices they engaged in to the staff “upon the staff’s request for information.” The size of the penalties reflected investor harm and cooperation in the investigation which “mitigated the serious and widespread nature of the violative conduct. Banc of America received a penalty of $750,000 despite having a large market share because “of the quality of its self-monitoring capabilities in the auction rate securities area that it demonstrated to the Commission staff.”

Any discussion of cooperation credit begins with self-reporting. None of the firms in these cases self-reported. Yet, all were deemed cooperative by the SEC Overall, there were two key points to the cooperation: (1) acknowledging the wrongful conduct for all the firms except Southwest; and (2) cooperating with the staff’s inquiry.

The differentiating factors however, appear to have been market share and the prevention of repetition in the future. The largest fines were levied on those with the largest market share. This seems consistent with the potential investor impact of the harmful conduct.

Potential investor harm is also critical to what appears to have been the key cooperation credit factor in these cases – mitigation of possible future repetition. By demonstrating that it could “self-monitor,” presumably Banc of America demonstrated that the potential for violations in the future and thus additional investor harm is minimal. Tying cooperation credit to this factor is consistent with the Commission’s statutory mandate as reflected in it primary remedy – an injunction to prohibit future violations. Those looking for cooperation credit in the future would do well to carefully consider these cases.