I have decided, at this time, not to respond in detail to the allegations in the various private civil lawsuits against me and other Indymac managers and directors. They are numerous and most of those involved in these cases, on both sides, know they are frivolous and likely will never go to trial. These lawsuits are designed solely to extract financial settlements from directors and officers liability insurance policies.
With that said, let me just cite some facts regarding just two of these lawsuits to make my point:
1. Resolution on Tripp/Mossberg Securities Class Action Lawsuit:
• This matter has been settled, subject to certain court and other approvals.
• The plaintiffs will receive $5.5 million from directors and officers insurance only.
• I did not wish to do so, but the plaintiffs and their attorneys insisted on a mutual non-disparagement provision as part of this settlement. As a result, they asked through my counsel, that I redact certain comments on my blog about this matter and I have complied.
• This civil case was filed by the plaintiffs more than five years ago. Enormous litigation costs have been incurred by both sides since then, yet the merits of the case have never been weighed by a court of law; it would have cost millions more to bring the case to trial.
• At an appropriate future time, I do feel a need and in fact a responsibility to comment on a few of the legal rulings in this case (related to the Private Securities Reform Litigation Act) and their negative effect on my ability to properly prevent class certification and/or have this matter dismissed as a matter of law.
• Finally and most importantly, I insisted that this settlement allow me to continue to deny all of the allegations the plaintiffs made against me in this matter, because they are not true.
2. Certain plaintiffs’ lawyers realized that there was a separate $10 million ERISA insurance policy and sued me and others alleging we breached our fiduciary duties in administering Indymac’s employee benefits plans. Let me briefly review the facts. Indymac had phased out its defined-benefit pension plan in favor of increasing contributions to its defined-contribution, 401K plan and the pension plan was administered by an independent firm. There was no direct investment in Indymac stock in the plan, so the pension was not an issue. The 401K was the issue. In the early years of Indymac’s 401K plan, the company matched a percentage of employee contributions with Indymac stock. As a result of some well-publicized corporate failures (and their employees suffering significant losses), I had personally directed, with the board’s support and approval, a change in the plan (several years before Indymac’s problems); eliminating the Indymac stock match in favor of a full cash match. As a result of this change, the dollar-value percentage of Indymac stock held by employees in Indymac’s 401K plan had declined significantly, from over 1/3rd of all invested funds to 11.8%, pre-crisis at December 31, 2006 ($16.7 million out of a total of $141.4 million in plan assets). In addition, we annually advised employees in writing to maintain a well -diversified 401K plan and regularly conducted voluntary employee seminars on prudent and proper 401K investing. At some point in 2007/2008, I became aware that a few employees were investing an inordinate amount of their 401K in Indymac stock, because they believed it to be a good long-term investment, as did I. Upon becoming aware of this, I instructed human resources to contact each one personally and advise them in writing that this was a risk that we recommend they not take in their 401K plan. The only thing more we could have done was “ban” investing in Indymac stock in our 401k plan. But I didn’t think that would be fair to employees’ free choice. What if we had survived and the stock had doubled or tripled or more? That actually had happened before, when we survived the 1998 Global Liquidity Crisis. The bottom line, is I and the others involved in these plans were not only responsible, but in fact outstanding fiduciaries of these employee benefit plans: The 401K plan had $150.7 million in assets (and just $3.8 million in Indymac stock or 2.5% of fund assets) at December 31, 2007; more in total assets than the prior year-end, in spite of the financial crisis and Indymac’s dramatic stock decline, because of the prudent actions I and the other managers had taken to ensure that employees diversified their 401K investments. And yet we were sued and advised to settle this matter, because to defend against this suit would have cost roughly the entire insurance policy. Wasn’t it better to settle and have this money (after plaintiff’s attorneys fees) go back to Indymac employees? Yes, but was it right? With our $7 million settlement, millions were paid to the plaintiffs and their attorneys when there was absolutely no merit to their case. I don’t think it was right, but it is the system that we live with today, because our government and legal system allow these types of frivolous lawsuits to occur.
In conclusion, if I have to, I will lay out every single one of these cases and show their lack of merit. These cases are not driven by truly wronged plaintiffs, but by plaintiffs’ attorneys who desire to earn legal fees and settlements for themselves and their clients and in a minority of cases by plaintiffs who want others to be responsible for the contractual losses they suffered in this financial crisis, as result of their own or their firm’s decisions to invest in financial services firms, mortgage loans or mortgage backed securities or insure mortgage loans or securities.