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Supreme Court considers whether shareholders can sue Goldman Sachs over generic statements


Shareholders of Goldman Sachs argued at the Supreme Court on Monday that they should be allowed to sue the investment banking giant over its generic statements about being free of conflicts of interest.

The shareholders said these statements proved untrue and artificially inflated Goldman’s share price.

The case, which dates back to the bank’s marketing of risky securities ahead of the 2008 financial crisis, could make it more difficult for stock owners to bring class action securities fraud suits in the future. But during about two hours of argument by phone, the justices signaled that they were unlikely to issue a sweeping ruling in favor of either side.

The case centers around Goldman’s marketing of a synthetic collateralized debt obligation called Abacus and other CDOs in which it failed to disclose that it or its major clients were heavily betting against the products. Goldman settled with the Securities and Exchange Commission in 2010 for $550 million over fraud charges related to Abacus, the largest penalty ever faced by a Wall Street bank.

The shareholders, including the Arkansas Teacher Retirement System, say they lost billions when news of the SEC investigation was revealed, tanking Goldman’s stock price. The case is securities fraud, they argue, because Goldman had made false statements like “our clients’ interests always come first” and “We have extensive procedures and controls that are designed to identify and address conflicts of interest.”

To date, the case has not moved beyond the class certification stage, meaning that the shareholders are still fighting to be able to sue collectively. Goldman has argued that the statements in question were too generic to have an impact on the price of its stock. The 2nd U.S. Circuit Court of Appeals rejected that argument in an April opinion that sided with the shareholders.

The questions raised at oral argument suggested that there may be a majority of justices willing to overturn the 2nd Circuit’s ruling in favor of Goldman’s shareholders, but they are unlikely to contradict much of its reasoning.

The justices pointed out that the positions of the lawyers arguing for each side seemed to converge since the court first agreed to hear the case. The attorney for Goldman Sachs, for instance, dropped the bank’s earlier position that generic statements could never be the basis of a securities fraud suit.

“It seems to me you’ve both moved to the middle,” Justice Amy Coney Barrett, an appointee of former President Donald Trump, told Tom Goldstein, the attorney for the shareholders, at one point. Goldstein is a partner at Goldstein & Russell and the publisher of SCOTUSBlog.

Justice Stephen Breyer, appointed by former President Bill Clinton, told Sopan Joshi, a Justice Department lawyer who presented arguments, that the case was filled with too much jargon.

“This seems like an area that, the more that I read about it, the less that we write about, the better,” Breyer said. “It’s based on very peripheral issues,” Breyer told Goldstein.

The chief controversy was whether the 2nd Circuit, in its ruling in favor of Goldman’s shareholders, might have closed the door on companies being able to argue that their statements were generic in order to defeat class action claims.

The Justice Department, which argued in favor of neither party, filed a brief in February in which it said that the 2nd Circuit’s decision was ambiguous on that point.

The DOJ urged the justices to vacate the lower court’s decision to clarify that a company could indeed argue that its statements were too generic to have an impact on its share price. On the other hand, the agency said that just because a statement is generic, does not automatically mean it cannot affect share price.

“The parties largely seem to agree with each other and with us” on that point, Joshi said during arguments.

Goldstein said that he agreed that the fact that a statement is generic shouldn’t be excluded from consideration when a court weighs whether shareholders may bring a class action. But, he argued, the 2nd Circuit opinion did not say otherwise, and urged the court not to reverse the appeals court’s decision.

In contrast, Goldman’s attorney Kannon Shanmugam argued that the 2nd Circuit’s opinion did refuse to consider the generic nature of Goldman’s alleged misstatements. That was unfair, he argued, because general statements tend to have less of an impact on share prices.

“The more generic a statement, the less likely it is that it will contain the type of information that is incorporated into the price of the stock,” Shanmugam said. “We think that in this case, the statements are exceedingly generic.”

Justice Elena Kagan, appointed by former President Barack Obama, suggested the court may do exactly what the Justice Department requested.

She asked Goldstein, “Why shouldn’t we just vacate and say, ‘Here’s what the law really is, we want to make sure you do it under the appropriate standard?'”

Goldstein said that reversing the lower court’s opinion would be “somewhat insulting” to the lower court and essentially would be “literary criticism.” He said that the 2nd Circuit had been clear in a 2018 opinion in the same case.

“Both opinions are before you,” Goldstein told Justice Brett Kavanaugh, a Trump appointee. Goldstein said that the court could clarify the 2nd Circuit’s opinion while affirming it, rather than reversing it.

“We are left in this position where you’ve both moved more closely together, and now we have to decide what to do with the 2nd Circuit’s opinion,” Barrett said at one point.

The top court’s decision is expected by the end of June.

The case is Goldman Sachs Group v. Arkansas Teacher Retirement System, No. 20-222.

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