The LAT reports that the Justice Department is looking into a case Milberg Weiss (as it then was) filed against AHI health care. The suit was filed at the end of 1995, just before the PSLRA took effect. The story suggests that plaintiffs' counsel wanted to file before the PSLRA took effect, to take advantage of the presumably more plaintiff-friendly rules that act would supersede. I imagine the prosecution story would be something along the line that the perceived need for speed caused the firm to agree to unlawful kickbacks of fees, as are alleged in the Lazar indictment.
It will be ironic if this suit leads to formal charges. For one thing, the '95 Act and it's presumptively most adequate plaintiff provisions did away with the need to rush to the courthouse to be first to file. Plaintiffs lost leverage based on their availability, and a different set of plaintiffs got leverage based on the size of their stakes. Under the new regime, Milberg/Lerach, Coughlin et al did just fine. (See in re Cavanaugh, 306 F.3d 726 (9th Cir. 2002).
For another, the '95 Act did not kill the plaintiffs'-side securities business. Plaintiffs' firms are doing just fine, even adjusting for the fact that Enron-like cases have produced a target-rich environment for them. (If you imagine a continuum of suits ranging from the frivolous to dead-bang winners, and draw a line somewhere that divides "meritorious" from "non-meritorious" suits, then the PSLRA may have eliminated suits close to that margin--on both sides. (Steven Choi discusses this point here.) That marginal affect may or may not be good, depending on the ratio of false positive to false negative findings, but it is a marginal effect, not a revolutionary one.)
The theories alleged in the Lazar indictment are perfectly cogent, though whether they will prove out remains to be seen. One thing is for sure, however. These allegations concern cases that are very old, and they are not getting any younger. That may be a practical rather than an academic point, but it may turn out to be important just the same.
DM
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