In an unusual decision, the S.D. of Tex. has ordered that a prominent plaintiffs’ firm pay the attorneys’ fees and expenses of Alliance Capital, a money management company sued for control person liability (under Section 15 of the 1933 Act) in the Enron securities class action. The plaintiffs had alleged that Alliance controlled one of its employees who also served as an Enron outside director. In his role as an Enron director, the employee signed a registration statement for a public offering that incorporated Enron’s admittedly false financial statements for 1998-2000.
In In re Enron Corp. Securities, Derivative & “ERISA” Litigation, 2006 WL 3474980 (S.D.Tex. Nov. 30, 2006), the court found that the plaintiffs had failed to establish facts sufficient for a reasonable jury to conclude that Alliance was a control person. More interestingly, the court held that although the plaintiffs’ firm could not be held liable for all of Alliance’s fees and expenses from the outset of the case, once the director was deposed and sufficient evidence did not emerge, the plaintiffs’ firm should have dropped the claim. Accordingly, the firm was required to pay Alliance’s fees and expenses related to the summary judgment stage of the litigation.
Quote of Note: “Moreover, it appears to this Court more appropriate that an award of fees and costs under § 11(e) should be borne by counsel: non-attorney clients more likely than not would not have the ability to determine at what point, based on what evidence, an action becomes legally ‘frivolous,’ while its licensed counsel should and is held to such a standard.”
The 10b-5 Daily 