If you are the most profitable corporate law firm in recorded history, with a habit of loudly defending the business judgment of corporate boards, you have to expect to take more than your share of shots. Wachtell Lipton Rosen & Katz is the Goldman Sachs of the law biz: When someone claims the firm has done something wrong, it’s news.
I offer that observation as context for the allegations in a brief filed this week by a plaintiffs’ lawyer whose client opposes Hewlett-Packard’s controversial settlement of shareholder derivative claims stemming from the company’s disastrous $11 billion acquisition in 2012 of the British software company Autonomy. Wachtell negotiated the settlement, which called for shareholders to release all claims against HP’s directors and officers but also for plaintiffs’ lawyers from Cotchett Pitre & McCarthy and Robbins Geller Rudman & Dowd to team up with HP in litigation against former Autonomy officers. (Plaintiffs’ lawyers were originally slated to be paid $18 million for their efforts.) HP is Wachtell’s client. It does not represent HP’s directors, who have their own lawyers. But according to dissenting shareholder A.J. Copeland and his lead lawyer, Richard Greenfield of Greenfield & Goodman, Wachtell was actually acting in the interest of HP’s board members, not the company itself, when it made a deal to release shareholder claims against HP directors.
“Wachtell inappropriately represented simultaneously both HP and the individual director and officer defendants,” the brief said, “and seemingly succumbed to the pressure to construct a settlement that unjustly benefited the individual defendants and provided, at best, nominal value to the company. Since the interests of the company were wholly incompatible with the goal of the individual defendants to eliminate their liability, Wachtell should not have provided such de facto dual representation.”
This brief isn’t the first time in the HP case that Copeland and Greenfield have raised questions about Wachtell’s supposed conflict of interest. They advanced the same argument in a brief last month, asking for permission to intervene in the case. (Other shareholders have challenged the HP settlement and castigated lead plaintiffs’ lawyers for capitulating, but no one else has gone after Wachtell.) In the latest iteration of the conflict claim, Copeland and Greenfield are calling for discovery to determine whether Wachtell should be replaced as HP’s counsel. The brief even suggests that HP may have claims against the firm for failing to protect the company’s interests.
“That issue remains for another day,” Greenfield told me in an email, adding that Wachtell partner Marc Wolinsky‘s defense of the settlement at a Sept. 26 hearing before U.S. District Judge Charles Breyer of San Francisco makes the firm’s conflict “all the more evident.”