BUSINESS OPINION: What do Donal Geaney and Julia Roberts have in common? Not much you would have to admit. But there is one connection: class actions. Ms Roberts won an Oscar for her portrayal of feisty class-action attorney Erin Brockovich in the eponymous film while Mr Geaney is the subject of more than 30 class actions in the US following the collapse of Elan's share price over concerns about its accounting procedures.
Sadly for the Elan chief executive and his co-accused: Elan Corporation; the finance director Mr Tom Lynch; various other executives and the company auditors KPMG - they are not being pursued by someone as attractive as Ms Roberts. Instead they are in the gun sights of some very aggressive law firms with names that could be straight out of the Hollywood Book of American Attorneys.
It is tempting to raise a sceptical European eyebrow over law firms with names like Wolf Haldenstein Adler Freeman & Herz, but it would be a mistake.
One of the more flamboyantly named outfits that has filed proceedings against Elan is Milberg Weiss Bershad Hynes & Lerach, and they strike fear in the heart of any US corporation. Their senior partner, Mr Bill Lerach is currently leading the charge on behalf of shareholders in Enron. He is representing the University of Calfornia Regents which administers a $54 billion (€61.64 billion) pension fund which has taken a $145 million hit over the collapsed energy trader.
Mr Lerach's firm - which has won more than $20 billion in such suits - is jousting with its equally formidable rival Lieff Cabraser Heimann & Bernstein to be the lead counsel in the Enron case.
Under the rules governing US class actions all the claims will eventually be lumped into one action and the lawyers representing the claimants with the biggest interest are usually made lead counsel. They will earn the highest fees which can be up to 30 per cent of the award or settlement.
A bun fight similar to the one going on at Enron will eventually break out over Elan. At present the various firms are staking their claims and so far only one has claimed to represent an institutional investor. However, the sharks have smelt the blood in the water and are circling their prey while trying to "recruit" as many clients as possible ahead of the early April deadline for the appointment of lead counsel.
It is the unsavoury ambulance-chasing aspect of class action lawsuits that makes Europeans turn up their noses at them. But there is a hierarchy of other reasons why securities class actions have not caught on over here. One of the most significant is that the financial risk to the plaintiff is very small. Unlike in Ireland if a US class action is unsuccessful the corporation that was sued cannot seek to recoup the cost of its defence from the plaintiffs. In addition, law firms specialising in class actions all act on a no-foal-no-fee basis.
But investors also have to consider that in a situation like the one Elan finds itself in, where the company is wounded but far from dead, it may be counterproductive to do further damage to the business - and the value of their shareholding - by suing.
On the other hand there is nothing like a court case to focus a board's attention on issues such as corporate governance and quite often reform in this area is part of the settlement.
The main reason - one suspects - that securities class actions are not part of the landscape here is that such things are considered very bad form in the cosy world that is the Dublin market. The issue is neatly underlined by the current dispute between Fyffes and DCC. Fyffes hummed and hahed until the last minute before taking an insider-dealing action against DCC. Similarly two of the institutions that lost money on the Fyffes shares sold by DCC in February 2000 only broke cover after Fyffes had moved and only hours before the statute of limitations expired.
Contrast this pussy footing with the Elan situation, where the class actions were being launched even before the shares had stopped falling. Similarly Eagle Star and Hibernian have gone out of their way to help DCC limit the damage done to its reputation by their decision to sue.
Give me the straight talking Mr Lerach and the US pension funds he represents any day. He may have been branded an "economic terrorist" by one venture capitalist and "lower than pond scum" by another CEO who fell foul of him, but I suspect he is not too worried about having to come face to face at the rugby club with someone he has publicly accused of being a crook.
On the other hand Mr Lerach's firm is also being investigated by a grand jury in Los Angeles over allegations that it illegally paid "professional plaintiffs" to use their names on lawsuits.
Anyway. It appears that Irish pension fund members may not have to rely on the backbone of Irish pension fund managers to ensure that they get back any money that they are entitled to from the Elan debacle.
According to US class-action attorneys, any Irish individual or institution that bought its Elan shares on the US market is entitled to be included in the class actions.
The good news is that most Irish business in Elan is done in New York rather than on the less liquid Irish market so most Irish shareholders will qualify.
The make up of the class will start to crystalise in early April when the judge hearing the case will start to fold the various law suits into one another and choose the lead counsel.
The prudent thing for an Irish individual or institution that believes it has a claim to do is to join one of the various actions before that date and have some lawyers with a funny name ensure that they are included in the class.
After that all they have to do is sit back and let the lead counsel make the running. If the action succeeds they will get their money and if it fails they have lost nothing. Hopefully your pension fund manager has already wised up to this.
