Hawaii’s public worker pension fund already has teams of lawyers pursuing lawsuits over investment losses where improper or fraudulent activities by publicly traded companies allegedly reduced the fund’s earnings, and the $14 billion retirement fund is ramping up to pursue possible new legal claims.
The state attorney general’s office in August hired four mainland law firms to monitor Employees’ Retirement System investments and seek out any and all evidence of wrongdoing that may have caused losses or reduced earnings.
The public worker retirement fund already has led or joined in multiple lawsuits pending over alleged misconduct by companies, including a case filed over the Deepwater Horizon oil spill in the Gulf of Mexico in 2010.
ERS is also a party in a class-action lawsuit over Brazil’s national corruption scandal this year that forced the publicly traded oil company Petroleo Brasileiro S.A., or Petrobras, to write off $17 billion in losses. Share prices for that company have declined by 70 percent since 2010, according to the Wall Street Journal.
The Hawaii pension fund has also been named lead plaintiff in what will likely become a class-action lawsuit against Whole Foods Market Inc. over alleged securities violations by the grocery retailer, said Deputy Attorney General Brian Aburano.
Aburano declined to disclose how much money the ERS may have lost in the various cases that its legal teams are pursuing, saying those estimates are confidential because they are considered attorney-client communications that are not public record.
However, the ERS generally does not mobilize lawyers to file claims and fight it out in court unless the losses in a case involving alleged fraud or misconduct are believed to total more than $2 million, Aburano said.
The attorney general in August contracted with four additional firms that will scrutinize losses that the ERS has suffered, and try to determine whether there are indications of securities fraud. An example might involve a case where information has been hidden from investors, and disclosure then causes an abrupt drop in stock values, he said.
They also monitor securities fraud lawsuits and settlements across the country, and look to see whether the ERS has an interest in the stocks that are involved.
“It is primarily fraud, but they can be looking for other things that have caused a sudden loss in the ERS’ portfolio,” Aburano said. “That’s what they’re meant to do; they are constantly monitoring the ERS’ portfolio.”
The firms then report their findings back to the trustees quarterly, or more frequently if, in their view, the ERS should quickly get involved in a case.
The ERS pays the law firms nothing and is under no obligation to them, but the firms do the work because they hope the pension fund will use them to file or join in a case. When that happens, the firms do the legal work on a contingency basis, which means they will be paid a share of whatever money they are able to win for the pension fund, Aburano said.
Lawyers’ findings under similar contracts have drawn the Hawaii pension fund into lawsuits over some notorious national and international cases.
In the Deepwater Horizon lawsuit, the ERS joined with the Arkansas Teacher Retirement System and the Illinois Municipal Retirement Fund to sue BP over alleged misconduct related to the 2010 disaster that killed 11 people and spilled about 206 million gallons of oil into the Gulf of Mexico.
Each of the retirement funds had purchased BP securities between 2007 and 2010. The lawsuit by the pension funds seeks compensation for losses they suffered because of BP’s alleged “false and misleading statements and omissions” about safety reforms the company claimed it had implemented, and BP’s ability to respond to a deep-water oil spill.
In the Petrobras case, the ERS joined with the United Kingdom pension fund Universities Superannuation Scheme Ltd. in a class-action suit to pursue an array of allegations related to a scandal that engulfed Brazilian politicians as well as executives in Brazil’s construction and oil industries.
The lawsuit alleges the oil company violated securities laws by making false statements or hiding information about the company’s revenue and the value of its assets in public securities offerings in the U.S. in 2013 and 2014. When the truth came out, there was a steep drop in the value of the company that cost investors billions of dollars, the lawsuit alleges.
Among other issues, that case involves allegations the company paid inflated prices to buy assets or build projects. Contracts for those transactions allegedly went to preferred contractors, and the contractors then paid kickbacks to oil company executives, according to the lawsuit.
The ERS was also just appointed lead plaintiff in a case against Whole Foods, and the pension fund will soon file an amended complaint against the the grocery retailer, Aburano said.
An initial lawsuit filed against Whole Foods in Texas alleges the company violated securities laws by concealing that it was overcharging customers. When those allegations surfaced, the controversy reduced both retail sales and the share price of the company, according to the Texas case. Whole Foods executives have denied the allegations.
ERS is also involved in a number of other cases, and Aburano said it would be “difficult and confusing” to estimate how much money the ERS has invested in each of the companies it is suing.
The size of the ERS investment in each of the companies has changed over time as the result of transactions and changes in market value, he said.
State Attorney General Douglas Chin has hired four new firms to troll for cases where there is evidence of wrongdoing involving ERS investments. Lawyers who contracted with the state in August to monitor the ERS portfolio include:
» Mark S. Willis of the Philadelphia-based firm Spector Roseman Kodroff & Willis, to monitor the ERS’ international securities portfolio.
» Jay W. Eisenhofer of the firm Grant & Eisenhofer, also to monitor the ERS’ international securities portfolio.
» Gerald H. Silk of Bernstein Litowitz Berger & Grossman, to monitor the ERS’ domestic securities portfolio.
» Eric J. Belfi of the firm Labaton & Sucharow, to monitor the pension fund’s domestic securities portfolio.
Thom Williams, executive director of the ERS, said the practice of retaining lawyers to monitor its investments is not unusual.
“The Employees’ Retirement System, like most other public pension plans, establishes relationships with securities monitoring and litigation firms to help protect its interest in claims asserting securities fraud,” Williams said in a written statement.
He said the ERS board has set a “soft guideline” of $2 million in losses before the fund will consider serving as lead plaintiff in class-action lawsuits. However, even when the ERS declines to participate directly in cases, “its interest is generally protected through filings on its behalf by either our custodian bank or fund managers,” Williams said.