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A Golden (Goldman?) Sign for the Plaintiff's Bar?

Marla Singer's picture




 

Last month, acting on behalf of institutional investors of some note, Grant & Eisenhofer filed suit challenging Goldman's bonus policy asserting:

...that the impending record-setting 2009 compensation payouts, estimated to be in excess of $22 billion, are not based on the hard work of the executives. Instead, the plaintiffs contend, the payouts are based on a trillion dollar investment made by the American taxpayers that was meant to stabilize the financial industry.

One assumes that G&E's clients would prefer the $22 billion be paid to, say, investors (like the plaintiffs in this suit, the Security Police and Fire Professionals of America Retirement Fund- who might actually be even less hard working than Goldman executives, we aren't sure) via dividends rather than, say, the taxpayers.  Really, it probably isn't that the pension fund here wants to run up a lot of fees (or perhaps just time if G&E is on contingency fees) to effectuate social justice by repatriating funds to U.S. taxpayers- or perhaps we at Zero Hedge are unduly cynical?  But this is neither here nor there.  What is interesting is the more recent chess moves in this particular match.  To wit:

Two U.S. pension funds that have filed lawsuits against Goldman Sachs Group, Inc.'s board of directors have asked the court to schedule an expedited hearing on their request to block the payments.  The suits allege that the firm's impending record-setting 2009 compensation payouts, estimated to be in excess of $22 billion, are a breach of the board's fiduciary duty. The motions were filed today as Goldman is expected to announce its final 2009 compensation and issue payments to its employees in the coming weeks.

 

[...]

 

Goldman's board defends its policy by touting it is guided by a "pay for performance" philosophy.  However, the majority of Goldman's reported earnings for 2009 was not built on the successes and achievements of the company's employees.  Instead, no less than 67% of Goldman's 2009 revenues were directly attributable to federal government intervention, including a $13 billion payment from AIG to Goldman which was a direct result of TARP funds.

Nothing hurts bankers more than delayed bonuses, after all.  And this may be the point.  Consider G&E's self-identified top-bragging rights at the end of their press release:

The firm has recovered more than $12 billion for investors in the last five years, including a $3.2 billion settlement from Tyco International, a $448 million settlement from Global Crossing and a $400 million settlement from Marsh & McLennan.

We are guessing this isn't about taxpayer justice.  Despite the fact that victory at trial would seem to require a major restructuring of contemporary notions of the roles of shareholders and management in determining executive compensation in the United States (even getting shareholders a "say on pay" much less actual authority is a stretch) we are guessing this suit is really about the absolutely improbable possibility that Goldman will actually fight this.  Can you imagine the discovery process and the many "accidental" leaks that would accompany it?  So can we.  So can Goldman.

There is some predictive value here, we think.  If this is how vulnerable Goldman has become on the bonus issue, can we reasonably expect either:

  1. Several multi-million dollar settlements as other members of the esteemed plaintiff's bar pile on? (And related declines in Goldman's stock price)?  Or,
  2. A brain drain as senior members of the Goldman team grow weary of the constant delays and scrutiny attached to their large (and poltiical dangerous) paychecks?

Probably.

 

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Tue, 01/12/2010 - 16:15 | 191456 knukles
knukles's picture

Me oh my!  Such rampant infighting amongst the Democratic Party's ignoble supporters.  Chilling, absolutely chilling.   

Tue, 01/12/2010 - 16:41 | 191497 Missing_Link
Missing_Link's picture

Surely you're not suggesting that Goldman was a major donor to the Obama campaign?

http://www.opensecrets.org/pres08/contrib.php?cycle=2008&cid=N00009638

Oh wait, they were.

Slowly I'm beginning to understand why the actual Obama administration is very nearly the polar opposite of everything promised in the Obama campaign.

Tue, 01/12/2010 - 17:59 | 191608 ShiftCTRL
ShiftCTRL's picture

+1

Tue, 01/12/2010 - 22:01 | 191885 Anonymous
Anonymous's picture

Just as importantly, is the Black Swan bullshit arguement. Maybe if you looked at it as a flock of Black Swans, that I could buy, but not just one measley swan in the subprime market and here is why. When you have, concurrent epic failures across many sectors, such as rating agencies, (Moody's , S&P) regulatory agencies, (CFTC, SEC) mortgage standards, Freddie Mac & Fannie Mae, (the current scape goat) and AIG, not to mention the Black Swan in Subprime or was it swine (Maybe that's the reason for the media blitz on swine flu. To help forget about swans, we can now focus on swine. ) all occuring at the same time? That my friends is conspiracy. Yes, everyone hand in the end might be in the toxic cookie jar, but there definitely was an overhead, overreaching organized voice, that told people to put their hand in that cookie jar. Encouraged them, bribed them, and even told them "Don't worry about it-- AIG's gottcha covered.

But the first one out of that cookie jar, was Goldman Sachs, and apparently with the biggest bag of cookies. So many cookies in fact that the bags split and left cookie trail crumbs all leading back to the Cayman Islands, where it is rumored that mountains of cookies all belonging to Goldman Sachs and clients and partners, etc. Back to point...

www.wallStOnion.blogspot.com

Tue, 01/12/2010 - 16:15 | 191459 Anonymous
Anonymous's picture

Well according to their argument those team members could easily go out and replicate their success minus the Goldman econo-political vehicle in which they currently ride. That would show us.

Tue, 01/12/2010 - 16:24 | 191460 ChickenTeriyakiBoy
ChickenTeriyakiBoy's picture

G&E is most certainly working on a contingency basis. They are a solid Delaware firm and yeah they've taken some big companies for a lot of cash...thank the Gingrich Revolution for PSLRA.

 

Tue, 01/12/2010 - 16:25 | 191470 Anonymous
Anonymous's picture

This is a classic rock and a hard place. If they settle, they may not have enough flights, cabs and hotel rooms for all the lawyers flying in. If they fight it, the subpoenas along with the depositions may cause endless headaches in Washington,

My bet: Summary Dismissal of all complaints with prejudice.

Tue, 01/12/2010 - 17:49 | 191588 ChickenTeriyakiBoy
ChickenTeriyakiBoy's picture

Doubt it will be summary dismissal. Venue=NY Supreme Court. No direct line from upstairs unlike SDNY

Tue, 01/12/2010 - 17:15 | 191549 Anonymous
Anonymous's picture

GS did not do anything illegal regarding their pay policy.

If you don't like it, vote out the board. If you are not a shareholder and just a US citizen, vote out your elected representative who was party to the GS funding you find offensive.

Tue, 01/12/2010 - 18:01 | 191612 mnevins2
mnevins2's picture

"

GS did not do anything illegal regarding their pay policy.

If you don't like it, vote out the board. If you are not a shareholder and just a US citizen, vote out your elected representative who was party to the GS funding you find offensive."

Blankfein, is that you? If so, simply get on your knees and pray for the divine intervention which has consistently motivated you to do His work in the past!

Thank God for GS!!!

 

 

 

Tue, 01/12/2010 - 18:43 | 191672 Careless Whisper
Careless Whisper's picture

when he refers to God, i think he means the almighty dollar.

Tue, 01/12/2010 - 20:58 | 191837 delacroix
delacroix's picture

or the almighty ego

Tue, 01/12/2010 - 18:11 | 191628 Anonymous
Anonymous's picture

Ordinarily I would agree with you but I think that there is a third option which is to agitate, as a citizen, to hopefully coerce the current elected officials to reverse what was a fundamentally flawed,political, decision that resulted in bonus monies that were not gained legitimately. The company would be out of business had the government not stepped in, and despite how miraculously any particular trader performed they would earn nothing in that scenario.To reward such risky enterprise behavior without penalty to anyone affiliated with the enterprise may not be criminal but it is cloying to say the least. I am in favor of revising the tax law for a one time bonus tax. It may be unprecedented, though probably not illegal, and we have already seen that unprecedented financial action was acceptable to save the companies skin in the first place. Of course this is all pointless and won't happen with this current group but I think it is a legitimate third option.

Tue, 01/12/2010 - 19:35 | 191734 Anonymous
Anonymous's picture

So you want the government to define "legitimate" rather than just "illegal" regarding pay practices. That rationale is why I think we are doomed --lots of folks embrace your elevated view of government as the great central planner and equalizer of outcomes - as and when they see fit.

So let's carry your view to all areas - not just banks. Every dollar paid to every worker at GM is illegitimate -- they clearly should be out of business. Baseball teams owe their existence to antitrust exemptions, so let's go after baseball players on steroids who did not earn their money "legitimately."

Who's fault is it that the government "stepped in" and "stepped in" the way they did. Government chose to do so - no one forced them to. And when they did, they structured the bailout in a way to cause low ramifications to the recipient. Now that they are paid back, you want to change the deal and say how much they should pay people?

Government is the primary source of the problem. Deal with the primary source of the problem - government - your elected representative. Agitating deals with things at the fringe -- we have huge structural problems with government that requires a more radical fix - get someone new in the game.

Tue, 01/12/2010 - 20:30 | 191802 Alchemist
Alchemist's picture

This is like saying " Had the surgeon not performed heart surgery - the patient wouldn't be alive.. Therefore, the patient owes his earnings to the good surgeon over and beyond the surgery bill that has been paid a while ago"

Tue, 01/12/2010 - 21:00 | 191839 delacroix
delacroix's picture

repay all gov. funding, before ANY bonuses

Tue, 01/12/2010 - 18:16 | 191632 deadhead
deadhead's picture

Perhaps thought ought to be given by the plaintiffs to selling their shares and redeploying their capital somewhere else.

Tue, 01/12/2010 - 21:49 | 191877 Unscarred
Unscarred's picture

Unless the plaintiffs possess the trait of telepathy, thinking about it won't get it done.  While I'd advise them to vote with their feet, pronto, I nearly forgot that this is America.  And if we don't like someone (or something, or some place, or some... but not too much), the American Way is to file suit and coerce action to acquiesce to our wishes.

God forbid we would ever react and adapt accordingly to what transpires before us.  That would require some degree of responsibility.  If we (collectively) possessed THAT trait, we wouldn't be where we are today in the first place.

Marla-  Once again, very elegantly scripted and objectively stated.

Tue, 01/12/2010 - 19:01 | 191703 Anonymous
Anonymous's picture

This is what is going to happen:

Goldman will move to change of venue to Delaware. New York courts will comply. Goldman will move to dismiss. Goldman will win because the pleadings here are so thread thin, what duty did Goldman violate here? Duty of care? For which Goldman has exculpatory clauses in its charter?, that a vice-Chancellor will dismiss this under Aranson.

Conversely, of course, if these guys survive motion to dismiss everyone will want to settle. But Ill bet Canadian money, in vast quantities, that this aint going to happen.

Tue, 01/12/2010 - 22:45 | 191922 ChickenTeriyakiBoy
ChickenTeriyakiBoy's picture

you think new york judge will acquiesce to forum non convenience? true aronson would control in chancery and i'm sure strine would have something entertaining to say in dismissal but what about a grandstanding trial judge in new york? do they exist up there?

Wed, 01/13/2010 - 02:06 | 192057 Anonymous
Anonymous's picture

Not anymore. New York pretty much defers on shareholder stuff to Del.

Tue, 01/12/2010 - 19:02 | 191705 Anonymous
Anonymous's picture

Maral, re the settlement stuff. All plaintiffs securities law firms aim for settlements. The name of the game is getting past a motion to dismiss in Delaware. Because, as youve properly noted, once you get into discovery things will get messy. So yes, its logical for them to highlight that.

Tue, 01/12/2010 - 21:09 | 191847 no cnbc cretin
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