Photo by Laura Barisonzi.
It’s hard to find a more compelling plaintiff securities litigator than Pomerantz Managing Partner, Jeremy A. Lieberman.
He graduated from Fordham Law School in 2002, and, after a stint at a major defense firm, he switched sides – and never looked back. His easy manner belies his tenacious advocacy, which earned him a $3B settlement in the now-legendary Petrobras case – which was the largest securities class action settlement in a decade, the largest settlement ever in a class action involving a foreign issuer; the fifth-largest class action settlement ever achieved in the United States; the largest settlement ever achieved by a foreign lead plaintiff; and the largest class action settlement in history not involving a restatement of financial reports. In his 15 years at Pomerantz, he’s achieved billions in settlements; become Managing Partner of the firm; and gained a reputation as one of the next generation of leaders who will shape the securities litigation bar for decades to come.
Lawdragon: Can you best describe the mix of work in the practice?
Jeremy Lieberman: Sure. As Managing Partner, I oversee the entire firm and all of its practices – primarily securities fraud, which is our main focus, but also derivative, consumer, and antitrust litigation. I’m currently overseeing the work in dozens of lawsuits in which Pomerantz is lead counsel, making sure the quality of the work is exceptional, supervising the legal theories and our strategies both for pleading a fraud and pleading damages, and ultimately bringing those cases to resolution through settlement or trial. Within that oversight I’m more intently involved as lead counsel in about seven to ten cases on a day-to-day basis.
LD: How did you first become interested and involved in the practice?
JL: I took civil practice in law school, and while studying the federal rules of procedure, we read the book, “Civil Action,” which dealt with a mass tort case in Woburn, Mass. The events of the real case were the basis for a movie with John Travolta and Robert Duvall. Travolta played Jan Schlictmann, the attorney with a small personal injury practice who went against big corporations for releasing environmental toxins that led to deaths in Woburn. I was really attracted to that case and to the book, with its protagonist who went against the big guns on behalf of the little guy, and it seemed like an excellent practice to go into. I should have perhaps heeded the book’s cautionary tale, because the real-life Schlictmann ultimately went bankrupt and had to fold his firm.
But that book really turned me on to class actions. I started as an associate on the defense side, though, defending opioid litigation for the Sackler family’s Purdue Pharma – a company that Pomerantz is now litigating against in several cases. I’d notice news alerts on our Intranet regarding securities fraud class actions, and wanted to learn more about that area of law that I found so interesting. So, when I left the defense firm to look for another job, the first questions I would ask employers was if they worked on a contingency-fee basis, and if they did securities class actions. Pomerantz hit those two marks, and the rest, as they say, is history.
LD: What are some aspects that keep you excited and satisfied about this job?
JL: For one, the complexity of the points in question, such as how securities are issued and how to assess in what ways alleged fraud leads to damages to investors. Most of the defendants hire the best experts in the world, graduates of MIT, Harvard, and so on, and grappling with the labyrinthine issues in order to come up with a compelling case is a great challenge.
For another, that we’re taking on cases on behalf of the defrauded, of the little guy, has a kind of David versus Goliath feeling. You’re representing the underrepresented, lending a voice to those who don’t have one, doing your utmost best to give them their day in court. It’s thrilling to be in court and argue a motion to dismiss, or argue in the Court of Appeals where you’re up against the best defense attorneys and do well against them. Obviously, winning is even better. The combination of pursuing justice and being on the right side of the case, and the high complexity and interesting factual issues that arise, keeps me engaged.
LD: Over the course of your law career, what have been the most interesting matters you worked on?
JL: There have been a number of them, but obviously the Petrobras case that we settled for $3 billion scores on the top of that list. Not only did we get a historic settlement, we litigated important issues in the U.S. Court of Appeals for the 2nd Circuit regarding class certification and secured precedent-setting rulings.
Our lead plaintiff was a U.K. pension fund, University Superannuation Scheme, and they turned out to be the gold standard for the position. To work with them, to appreciate how engaged they were, was really a terrific experience. The case involved complex and highly contested issues, like whether or not a securities transaction was domestic or non-domestic, that made it extremely interesting. Judge [Jed] Rakoff held many hearings, and it was exciting to be on all the motion practice, to be litigating in front of him and against Skadden, against Cleary Gottlieb, some of the best funded and best trained defense counsel in the world.
LD: Is there a recent professional move, development or achievement that you wish to discuss?
JL: I’m continuing the firm’s tradition of expanding the scope of securities laws to benefit investors, addressing conduct that may not have been considered to impact them decades ago. For example, we’re lead counsel in a securities class action against Wynn Resorts stemming from accusations of sexual misconduct towards the company’s employees by its CEO, Steve Wynn. Is that something that securities laws deal with? We aim to convince the court that a company’s statements as to its compliance with its code of conduct are indeed actionable.
Another legal area in which Pomerantz has been at the vanguard is that of foreign securities. In the wake of the Supreme Court’s 2010 Morrison decision, which limited the scope of what’s considered a transaction in the United States, our firm, in litigation against BP plc, found a way to allow investors on the London Stock Exchange to get covered in the United States. We’ve also done so in cases against Mylan and against Perrigo, where we’re litigating on behalf of a dual-listed security, representing Israeli investors who purchased on the Tel Aviv exchange, and the court actually took jurisdiction over the Israeli shares. So, we have come up with interesting and novel ways to address Morrison, to address a globalized world, and found ways for investors to recover abroad and in the United States.
LD: Are there any trends in the types of matters you’re currently litigating?
JL: The trends follow what everyone reads in the newspaper, and how those events impact the securities market. So, the #MeToo movement, obviously, has been much in the news, and we’re involved with litigation arising from sexual harassment claims, in the Wynn case and others.
I also just mentioned the Mylan and Perrigo actions. These deal with a generic drug antitrust conspiracy, where 40 state attorney generals have accused these companies, as well as others, in engaging in the largest cartel in U.S. history. Pomerantz also represents dozens of institutional investors in the Teva Pharmaceuticals securities class action, also related to the generic drug conspiracy. When the items that appear in the New York Times or Wall Street Journal end up impacting share price, our cases reflect that. Also, when pharmaceutical companies tie the future of their companies to one drug, we’re seeing that too often companies will lie about the results or massage the numbers of the results in order to get FDA approval - that yields securities fraud lawsuits.
LD: Can you describe key challenges in a recent matter?
JL: This year we settled a case against Barclays plc for $27 million, which was 28% of the alleged damages – a very high percentage. Barclays had encouraged institutional investors to trade in their “dark pool,” a private trading platform where the size and price of the orders are not revealed to other participants. At the same time, Barclays was inviting high-frequency traders and hedge funds to trade in the same pool. The high-frequency traders were getting access to the institutional investors’ trading information, and would front run a lot of their trades and ultimately force the institutional investors to trade at a higher price, because these high-frequency traders could anticipate the trades of the institutional investors. It was quite an interesting case.
The Attorney General in New York announced a lawsuit against Barclays, resulting from this misconduct, and Barclays ultimately admitted to violating the securities laws with respect to their dark pool. However, the dark pool was less than one percent of the company’s revenue. It was actually 0.1% of the net income for Barclays, so there was a real question as to whether this misconduct was material to investors. We were able to convince the court that even though it was not a large part of the revenue steam, such fraudulent conduct by the company was indeed important to investors.
A further challenge was that there were really very few statements regarding the dark pool in the company’s financials. It was a challenge to find statements to investors where the company had lied, where they were false and misleading. But we actually found statements, not in the company’s 10Qs and 10Ks, but rather in various publications where Barclays had advertised, Hedge Fund Weekly and other periodicals like that, where they made statements about the dark pool and the protections that they had in place for institutional investors. So it was a matter of finding liability, where per the ordinary course, there wouldn’t have been a case.
We were up against Sullivan & Cromwell, one of the best law firms in the nation. We got a class certified by Judge [Shira] Scheindlin of the district court, which the defendants challenged in the 2nd Circuit Court of Appeals. The issue was whether or not, in order to meet the evidentiary preponderance requirements for certifying a class, plaintiffs needed to produce an event study to show that there was a cause and effect relationship between misstatements and a company’s stock price. In the 2nd Circuit, it was common practice to include such an event study - everybody believed you needed to include one. But the 2nd Circuit actually ruled in our favor, deciding in Barclays that it was not required to have an event study.
The 2nd Circuit is the busiest circuit of securities class actions in the world, so that was really a precedent-setting decision for investors. Defendants tried to bring motions for summary judgment, and we got through those attempts, and were about six weeks away from trial when we achieved the excellent result of 28% recovery for defrauded investors. It was aggressive and tenacious litigating, and really a terrific outcome.
LD: What is the impact on the industry from this matter?
JL: It’s going to be easier to certify a class in the 2nd Circuit, and it’s going to be easier in circuits throughout the nation, because many look to the 2nd Circuit for guidance. This case lightened the burden of proof on plaintiffs seeking class certification, and will be cited by district courts and circuit courts throughout the nation for decades to come.
LD: Is there a specific lesson from this work or is there anything from it you will find especially memorable?
JL: The lesson is twofold: One, that the practice of using event studies was examined and found not to apply for securities class actions. Event studies are used by economists when looking at hundreds of companies and trying to understand trends with respect to those companies. In the securities world, it never really made a lot of sense, but it was common practice. Using common sense, and understanding what was the purpose of the event study, and what it was trying to achieve, and breaking that down for the 2nd Circuit was how we got the Court to rule that it was not indeed necessary to prove a case in a securities class action. So by Pomerantz looking at securities fraud cases not from an academic but from a common sense perspective, it helped the investors, and it helped the Court wade through these issues.
Two, the importance of being tenacious. At many points throughout the case, it might have been easier to settle for a lower number and just give up. There were many challenges throughout and we could have settled earlier, but we kept plodding on and earned a much better result than we could have achieved at any earlier point. Plodding on, being tenacious, and being prepared to go to trial are methods that will ultimately get you a good result for the class.
LD: What advice would you give a current law student?
JL: Take a wide variety of courses. Explore issues and fields of law to find your passion, what really interests you. Whether it’s entertainment law or corporate law, if it’s something you’re really interested in, subject matter you really like, pursue that with passion, and success will follow. I was lucky enough to find this field and learn about class actions, about securities litigation, and things went well from there. If you like what you’re doing, that’s already a good part of the reward.
LD: Can you share a lawyer you have come up against in a negotiation or case that you admire, and why?
JL: Nearly all of them. There’s Lewis Liman from Cleary Gottlieb, recently nominated to be a district court judge, who represented Petrobras in the shareholder litigation. He was a formidable adversary and it was really a pleasure to negotiate and work on the case with him. Jay Kasner and Scott Musoff at Skadden, who represented underwriters in that case, are also fantastic lawyers and excellent adversaries. There are so many other superb defense counsel I’ve met in other cases; I’d name them all if there was time and space.
LD: What do you do for fun, other than work?
JL: I love karaoke but I don’t know if it’s as much fun for the people listening to me. One of the key changes that was made at Pomerantz since I’ve become partner is that at every firm party, we have karaoke. And we make every new partner sing karaoke in order to seal their partnership appointment.
As far as fun outside the office, I play softball every Sunday in spring and summer. Somehow, between hanging out with my wife and kids, I manage to get out and play some softball on weekends.