U.S. Supreme Court may decide as early as Friday
Nearly four years after approximately 1,000 Louisiana residents lost an estimated $1 billion to Houston investment promoter Robert Allen Stanford, they have yet to recover a dime.
The U.S. Supreme Court, however, may tell those people Friday whether they can pursue civil suits against law firms, insurance brokers, financial consultants and other professionals who served Stanford. Those companies are asking the nation’s highest court to examine a related decision last year by the U.S. 5th Circuit Court of Appeals in New Orleans. The 5th Circuit ruled that the investors can pursue their suits against those law firms and service companies.
The bulk of the Louisiana losses — according to estimates by Baton Rouge lawyer Phillip W. Preis and state Sen. Bodi White, R-Central — were suffered by residents of the Baton Rouge, Lafayette and Covington areas.
Court wars over responsibility for those stolen savings continue to rage in Baton Rouge and Washington, D.C. While those disputes bubble and churn, the 62-year-old Stanford serves a 110-year prison term and maintains a Texas jury was wrong to convict him last year on fraud charges.
More than 20,000 Stanford investors in more than 100 countries suffered a combined loss of $7.2 billion when the Securities and Exchange Commission shut down Stanford’s operations in February 2009, according to court filings of the SEC and the Justice Department.
Those defrauded in Louisiana and across the United States, however, now are receiving courtroom support from federal regulatory and law enforcement agencies in cases that are expected to come to a boil this year, court records show.
On Dec. 14, the Justice Department and SEC asked the U.S. Supreme Court not to consider appeals that have been filed by a Pennsylvania financial services firm; two global law firms based in Manhattan; a global insurance broker headquartered in Denver, and an insurance and risk management firm in Houston. Those firms have been accused in court suits by investors in Louisiana, Texas, other states and from other countries of ignoring evidence of Stanford’s frauds as they received pay for services.
“In the view of the United States, the petitions (for Supreme Court consideration of those appeals) should be denied,” wrote Solicitor General Donald B. Verrilli Jr., whose office represents the federal government in cases before the high court.
Those appeals, however, are not from any final judgments by judges or juries, however.
Instead, firms such as SEI Investments Co. of Pennsylvania are arguing the 5th Circuit was wrong to rule in March that defrauded Stanford investors can pursue class-action suits against them. Two of those suits are in state district court in Baton Rouge. Other investor suits against other professional firms are in federal court in Dallas.
SEI was paid by Stanford to take his companies’ profit-and-loss information and produce financial statements that were mailed to his investors. Those statements routinely showed growing profits for those investors.
But Stanford’s chief financial officer, James M. Davis, pleaded guilty to felony charges and testified in Houston that Stanford and he falsified that information from the first day they worked together.
In a September hearing in Baton Rouge before state District Judge R. Michael Caldwell, SEI attorney J. Gordon Cooney Jr. said: “SEI did not make any false statements” to Stanford investors.
“The duty to disclose is on somebody who sells or offers to sell,” Cooney added. “If SEI is not the seller … end of story,” Cooney argued, before telling Caldwell, “SEI has not violated Louisiana securities law.”
David Latham, an attorney for the Louisiana Office of Financial Institutions, argued that OFI should not be held liable for Stanford’s crimes. Latham told Caldwell in one filing: “The role of the OFI is to regulate, not to ensure that those who invest in companies subject to OFI regulation will never lose money as a result of criminal actions.”
Preis, on behalf of Stanford investors, argued that officials of both SEI and OFI either knew or should have known of Stanford’s frauds years before so many investors lost their savings in February 2009.
Caldwell ruled Dec. 5 that Preis and some of the 86 investors he represents presented sufficient evidence for the judge to declare their civil suit against SEI and OFI a class action that about a thousand other bilked investors can join.
That case still must be brought to trial in Caldwell’s courtroom.
Caldwell’s decision to retain control of the case in state district court was preceded by the 5th Circuit’s decision in favor of the investors.
A federal judge in Dallas had seized control of the investor suit in Baton Rouge state court against SEI and OFI. The same jurist, U.S. District Judge David Godbey, also seized control of similar suits in other federal courts.
Godbey ruled that a 1998 federal law, the Securities Litigation Uniform Standards Act, or SLUSA, requires all class-action suits that could affect the nation’s financial markets to be filed in federal courts. He then ruled that the suits are not permitted under SLUSA’s congressionally established protections for securities markets that are national in scope.
But Stanford’s investments were not SLUSA-covered securities offered through national markets, the 5th Circuit concluded.
“Therefore, we find that the fraudulent schemes of the SEI defendants and (other defendants), as alleged by the (investors) are not more than tangentially related to the purchase or sale of covered securities and are therefore not sufficiently connected to such purchases or sales to trigger SLUSA preclusion,” the 5th Circuit ruled.
But Stanford’s sales staff falsely told investors that money deposited for Stanford International Bank on the Caribbean island of Antigua was backed by solid investments in nationwide securities, Washington, D.C., attorney Jeffrey M. Harris told the Supreme Court on behalf of global insurance broker Willis of Colorado Inc.
“A misrepresentation about covered securities is clearly covered (by SLUSA), and the (5th Circuit’s) decision to find SLUSA inapplicable despite acknowledging such a misrepresentation is indefensible,” Harris wrote Supreme Court justices on Dec. 26.
Harris was joined in that Supreme Court filing by attorneys for SEI and the Houston insurance and risk management firm of Bowen, Miclette & Britt Inc.
Walter Dellinger, a Washington, D.C., attorney defending the Manhattan-based global law firm of Chadbourne & Parke LLP, criticized both the 5th Circuit and the federal government’s Solicitor General Verrilli. Dellinger said the Supreme Court should not follow the lead of the 5th Circuit and Verrilli and allow the Louisiana investors’ to proceed with their class-action suit in Baton Rouge state court.
State-law class actions in securities cases that are nationwide in scope are not permitted by SLUSA, Dellinger insisted.
A decision by the Supreme Court not to consider the professional firms’ appeal of the 5th Circuit decision “would allow this class action — in which plaintiffs seek to recover $7 billion in damages from two respected international law firms — to proceed when, as the United States admits, Congress intended to preclude it,” Dellinger wrote.
Preis, the Baton Rouge attorney for scores of defrauded Stanford investors, said the 5th Circuit’s decision was correct, as were the requests of both Verilli and the SEC that the Supreme Court not hear the appeals of the professional services firms.
If the Supreme Court refuses to consider those appeals, Preis said, state law “will apply and this case will be tried in Baton Rouge state court.”
Preis said the Supreme Court’s decision could be announced as soon as Friday.