Moderator/panelist: Michael W. Smith, president of executive liability, Chartis Insurance Panel: Bruce G. Vanyo, managing partner, Katten Muchin Rosenman; Brad S. Karp, chairman, Paul, Weiss, Rifkind, Wharton & Garrison; Stanley D. Bernstein, partner, Bernstein Liebhard
Back by popular demand was a sparring session, ably moderated by Michael W. Smith, between plaintiff and defense attorneys. Representing the point of view of the plaintiffs’ bar was Stanley D. Bernstein, whose firm has settled some of the largest class actions in recent history. “This is a very unusual thing for me,” Bernstein said, “because as a plaintiffs’ lawyer, I rarely get invited to speak with directors. Normally, I do the inviting.”
Anti-business fervor is giving the plaintiffs’ bar an edge. “After 9/11, we were really pariahs. No one wanted to challenge corporate America. But there’s a lot of activity now. And jurors and courts are receptive to our claims more than ever before,” he said. Bruce G. Vanyo suggested that anti-business sentiment is not directed at corporate America in general, but rather “there’s a sentiment strongly against Wall Street firms now. They’re viewed as largely to blame for the credit crisis.”
While the number of securities class action filings has stayed relatively constant at around 200 per year, the nature of claims has experienced significant change. Citing BP as one salient example, Bernstein spoke of how claims are not necessarily related to earnings, but are often filed for reasons such as operational risks. “The cases now are not necessarily where somebody was cooking the books,” he said. Despite the nature of a claim, it is evident that regulators are taking them seriously in the wake of certain scandals. “You’re seeing the SEC being much, much more aggressive,” Brad S. Karp said, “under the guise of announcing what caused the financial crisis.”