Thank you, this is exactly what I was hoping for! I have several questions.
Could you expand on how lawyers can create costs for 3rd parties, even without depositions?
I don’t understand why you’re using the exact same number as the Madoff clawbacks. I looked at it more for ratios: out of 40,000 investors (another source says 37k), 2,000 were net positive, and ~half of those were sued.* Your intuitions about where lines might be drawn were really helpful here, although I don’t feel like I have the level of clarity I want yet.
Suppose someone gets on a list: what happens next? how much of that is set in stone? What changes could someone induce by talking publicly? Some guesses I have are getting deposed versus not, deposition takes n% longer, personal records get subpoenaed where they otherwise wouldn’t have.
*Note that it’s not 1000+ cases that went to trial, it’s 1,000 lawsuits filed (apologies for leaving the citation out earlier, I meant to include it). I have yet to find any that went to trial, although some clearly got far enough to be prepping witnesses. That’s about what the trustee initially estimated- that out of 2000 net beneficiaries of Madoff, he’d go after about half of them. It’s not clear to me anyone gave back money without a lawsuit being filed.
As far as what kind of pain the legal process imposes on those who get caught up in it, the bulk comes prior to trial. So the fact that these cases didn’t go to trial doesn’t move the needle much. Actual trials in cases between midsize+ corporations are fairly uncommon, as the EV of the litigation is usually pretty clear after discovery ends and any summary-judgment motions are litigated to resolve disputed issues of law. Few cases of that sort are dependent on disputed witness testimony or the like.
The biggest practical pain point is document discovery, potentially having to go through potentially tens to hundreds of thousands of pages of documents to figure out which are responsive to the other side’s document demands and what has to be turned over. In a really simple case with 1,000 pages of material held by a few employees, responding to discovery can still potentially take several dozen hours of attorney time (plus client time), so let’s ballpark $10K on the low end per new third-party target. It is really hard to assess how much responsive material a third party could have. $100K might be a reasonable high-end estimate. For a major target like CEA/EV, maybe an order of magnitude higher.
For an entity that is already a target, let’s start with attorney fees. Although I expect entities on the other side spent less than the trustee’s $1.4B, half to 70 percent of that wouldn’t surprise me at all. So mid-six figures per target seems ballpark plausible on average. Much of that would be in discovery. Giving the opponent more information up front would likely allow them to justify more burdensome discovery to the judge. I would guestimate a 10-25% uplift in litigation costs per target from making a statement. Obviously it depends on what the statement says—but if the statement says nothing of substance, issuing it would have little value in the first place?
There’s also the risk of more easily triggering lawsuits from third party plaintiffs. Under Federal Rule of Civil Procedure 11, an attorney or party cannot file a complaint or pleading without conducting a reasonable investigation into the merits of the complaint (more or less). Giving a statement that isn’t 100 percent exculpatory makes it very easy for some would-be plaintiffs to meet their Rule 11 obligations and file a suit that wouldn’t have been filed otherwise. It’s possible, but less likely, that an organization’s statement could trigger a suit against a third party. Moreover, having a statement to hang their hat on likely makes it easier for would-be litigants to write their complaints in a way that survives the first, relatively inexpensive shot you get to get rid of a case (a Rule 12(b) motion to dismiss, see the Supreme Court’s decisions in Iqbal and Twombly if you want to geek out on that standard).
If you look at sanctions awards in frivolous cases (e.g., the “Kraken” election litigation in Michigan), you’ll see that defendants often can spend 250K on beating them back. That could be higher or lower based on the nature of the litigation. So I’m going to assign an EV of 250k as a rough estimate to a mid-to-larger org’s exposure for speaking out, which could represent a few really quick suits, one Kraken-level suit, or 0.1-0.2 of a more significant class action.
An organization also needs to be very careful in its public statements because they are admissions that can be used against it in court to devastating effect. That means it probably should conduct its own internal investigation before committing to a position that says anything substantive. Employees are known to . . . misremember or forget stuff when the facts don’t make them look good. Human nature. Depending on the organization’s risk tolerance, potential exposure, and amount of material, $25K-$250K per organization could be a reasonable estimate (but I’ve never been involved in pricing them, and I think a good investigation of CEA/EV would be higher given how much involvement it seems to have had with SBF directly).
Plus, a detailed statement gives the opponent a roadmap to make their discovery and litigation strategies more effective. At my upper-end estimate of the amount at stake, even a few percent increase in the estate’s chance of winning against EV/CEA alone could have a negative seven-figure EV. This would be lower for other organizations of course.
Cynically, there is also the chance that an organization knows it is toast, and that putting out a statement that would basically concede that is a great way to hasten the end. You can decide for yourself what the utility (or disutility) of keeping an organization running for an extra 2-3 years might be.
All of that is really conjectural on my end, but hopefully it gives you some basis for how a lawyer (who I emphasize has zero inside knowledge at all!) might try to quantify the costs of speaking rather than maintaining radio silence. I have low confidence in that quanitification. I would never attempt to quantify in this way for a client; the error bars are just too large.
Ultimately, it is a client decision whether the client should talk about pending litigation. Only in rare cases is silence not the correct decision from a legal perspective. However, clients make decisions against their legal interest for any number of reasons. Sometimes these are poor decisions, sometimes the client decides they have non-legal interests that they properly judge to outweigh their legal interests.
Apologies for the delay, and thank you, this is really helpful in fleshing out my models.
Am I correct that there is a ceiling on the amount of discovery that can be done? Once you have to turn over every document, there are no more documents to turn over. So the costs of speaking should asymptote over time? If not, what costs are increasingly linearly or faster?
> if the statement says nothing of substance, issuing it would have little value in the first place
is this true? I imagine there are some statements that are interesting to the EA community but bear no legal weight (“we believe fraud is bad”), and others contain information that would have been in discovery anyway.
I get the feeling one thing going on is that there are safe statements, but it’s hard for laypeople to identify them ahead of time (see: SBF outlining his incompetence as if that was a defense instead of evidence of a crime). So lawyers default to the much easier to follow “please shut the hell up”.
Do you have estimates for client time? I expect many EA orgs to care more about that than lawyers fees, especially if potential increases are only on the order of 25%.
There is likely a ceiling effect, either on the volume of discoverable things or the other side’s CEA of marginal discovery.
I think major orgs have made “we think fraud is bad” statements. I assume no one thinks fraud is good, or would admit to it if they did, so those statements have zero value to me.
Whether there are other safe statements depends on the organization’s exposure, but in many cases your lawyers would have to engage in a lot of independent factfinding to figure out if that’s the case (including needing to figure out information not held by your organization or publicly available). On the other hand, “no one here ever interacted with SBF, took FTX money, or gave him much thought” is likely safe if true and shouldn’t require much work.
There were no safe statements a lawyer could identify for SBF—that would require identifying, accessing, and ingesting all material info DOJ would obtain on him, which was/is impossible.
Really hard for me to estimate staff time given the nature of the case. You probably can substitute lawyer time for staff time for many tasks if you value staff time at mote than the lawyer’s rate.
If you’re doing a CEA, you should consider that discovery will probably happen under a protective order and any litigation will very likely be settled in a way where there is minimal leakage of the discovered info. So I don’t think it is correct to assume that unfavorable information will be publicly disclosed no matter what.
So I don’t think it is correct to assume that unfavorable information will be publicly disclosed no matter what.
This feels like a nonsequitur to me. The question is “is there information an org or person might like to disclose, but shouldn’t, due to its effect on legal risk (including procedural burden)?”. If the entity doesn’t want the information to be public then this question doesn’t arise (we could argue about whether orgs have a proactive moral duty to confess to crimes, but that’s definitely not the question here).
It sounds like you’re saying there is a ceiling on the burden for discovery, trial, etc, so at a certain point new statements can’t increase that burden, although they could have other negative consequences. Is that correct?
There is certainly a ceiling. Then again, your organization ceasing to exist because it’s overrun with legal bills and/or a crippling judgment is entered against it is a ceiling, and for smaller organizations (especially those that spent grant funds and are already going to get hit with a clawback) it may well be a realistic estimate of the ceiling.
As far as a non sequitur, I think we’re interested in somewhat different questions. My formulation is more: “What are the relative costs and benefits of making statements and releasing information on this matter?” I don’t find comparing benefits to only the increase in legal risk to be particularly decision-relevant on what organizations should do. I think almost any statement that is not “we’re giving back all the money, right now” is going to be net negative PR, and I think the increased risk of public disclosure of unfavorable information has to be considered to answer my question (it’s OK if it isn’t part of your question).
I’m not sure how to ask this but it seems like you’re...angry?… at me for trying to be precise about this? I’m not trying to challenge you, I just want to double crux to discover where our assessments differ. I thought that might have been any number of places you have expertise and I don’t, but now it seems like maybe you just don’t see value in public sense-making.
Thank you, this is exactly what I was hoping for! I have several questions.
Could you expand on how lawyers can create costs for 3rd parties, even without depositions?
I don’t understand why you’re using the exact same number as the Madoff clawbacks. I looked at it more for ratios: out of 40,000 investors (another source says 37k), 2,000 were net positive, and ~half of those were sued.* Your intuitions about where lines might be drawn were really helpful here, although I don’t feel like I have the level of clarity I want yet.
Suppose someone gets on a list: what happens next? how much of that is set in stone? What changes could someone induce by talking publicly? Some guesses I have are getting deposed versus not, deposition takes n% longer, personal records get subpoenaed where they otherwise wouldn’t have.
*Note that it’s not 1000+ cases that went to trial, it’s 1,000 lawsuits filed (apologies for leaving the citation out earlier, I meant to include it). I have yet to find any that went to trial, although some clearly got far enough to be prepping witnesses. That’s about what the trustee initially estimated- that out of 2000 net beneficiaries of Madoff, he’d go after about half of them. It’s not clear to me anyone gave back money without a lawsuit being filed.
As far as what kind of pain the legal process imposes on those who get caught up in it, the bulk comes prior to trial. So the fact that these cases didn’t go to trial doesn’t move the needle much. Actual trials in cases between midsize+ corporations are fairly uncommon, as the EV of the litigation is usually pretty clear after discovery ends and any summary-judgment motions are litigated to resolve disputed issues of law. Few cases of that sort are dependent on disputed witness testimony or the like.
The biggest practical pain point is document discovery, potentially having to go through potentially tens to hundreds of thousands of pages of documents to figure out which are responsive to the other side’s document demands and what has to be turned over. In a really simple case with 1,000 pages of material held by a few employees, responding to discovery can still potentially take several dozen hours of attorney time (plus client time), so let’s ballpark $10K on the low end per new third-party target. It is really hard to assess how much responsive material a third party could have. $100K might be a reasonable high-end estimate. For a major target like CEA/EV, maybe an order of magnitude higher.
For an entity that is already a target, let’s start with attorney fees. Although I expect entities on the other side spent less than the trustee’s $1.4B, half to 70 percent of that wouldn’t surprise me at all. So mid-six figures per target seems ballpark plausible on average. Much of that would be in discovery. Giving the opponent more information up front would likely allow them to justify more burdensome discovery to the judge. I would guestimate a 10-25% uplift in litigation costs per target from making a statement. Obviously it depends on what the statement says—but if the statement says nothing of substance, issuing it would have little value in the first place?
There’s also the risk of more easily triggering lawsuits from third party plaintiffs. Under Federal Rule of Civil Procedure 11, an attorney or party cannot file a complaint or pleading without conducting a reasonable investigation into the merits of the complaint (more or less). Giving a statement that isn’t 100 percent exculpatory makes it very easy for some would-be plaintiffs to meet their Rule 11 obligations and file a suit that wouldn’t have been filed otherwise. It’s possible, but less likely, that an organization’s statement could trigger a suit against a third party. Moreover, having a statement to hang their hat on likely makes it easier for would-be litigants to write their complaints in a way that survives the first, relatively inexpensive shot you get to get rid of a case (a Rule 12(b) motion to dismiss, see the Supreme Court’s decisions in Iqbal and Twombly if you want to geek out on that standard).
If you look at sanctions awards in frivolous cases (e.g., the “Kraken” election litigation in Michigan), you’ll see that defendants often can spend 250K on beating them back. That could be higher or lower based on the nature of the litigation. So I’m going to assign an EV of 250k as a rough estimate to a mid-to-larger org’s exposure for speaking out, which could represent a few really quick suits, one Kraken-level suit, or 0.1-0.2 of a more significant class action.
An organization also needs to be very careful in its public statements because they are admissions that can be used against it in court to devastating effect. That means it probably should conduct its own internal investigation before committing to a position that says anything substantive. Employees are known to . . . misremember or forget stuff when the facts don’t make them look good. Human nature. Depending on the organization’s risk tolerance, potential exposure, and amount of material, $25K-$250K per organization could be a reasonable estimate (but I’ve never been involved in pricing them, and I think a good investigation of CEA/EV would be higher given how much involvement it seems to have had with SBF directly).
Plus, a detailed statement gives the opponent a roadmap to make their discovery and litigation strategies more effective. At my upper-end estimate of the amount at stake, even a few percent increase in the estate’s chance of winning against EV/CEA alone could have a negative seven-figure EV. This would be lower for other organizations of course.
Cynically, there is also the chance that an organization knows it is toast, and that putting out a statement that would basically concede that is a great way to hasten the end. You can decide for yourself what the utility (or disutility) of keeping an organization running for an extra 2-3 years might be.
All of that is really conjectural on my end, but hopefully it gives you some basis for how a lawyer (who I emphasize has zero inside knowledge at all!) might try to quantify the costs of speaking rather than maintaining radio silence. I have low confidence in that quanitification. I would never attempt to quantify in this way for a client; the error bars are just too large.
Ultimately, it is a client decision whether the client should talk about pending litigation. Only in rare cases is silence not the correct decision from a legal perspective. However, clients make decisions against their legal interest for any number of reasons. Sometimes these are poor decisions, sometimes the client decides they have non-legal interests that they properly judge to outweigh their legal interests.
Apologies for the delay, and thank you, this is really helpful in fleshing out my models.
Am I correct that there is a ceiling on the amount of discovery that can be done? Once you have to turn over every document, there are no more documents to turn over. So the costs of speaking should asymptote over time? If not, what costs are increasingly linearly or faster?
> if the statement says nothing of substance, issuing it would have little value in the first place
is this true? I imagine there are some statements that are interesting to the EA community but bear no legal weight (“we believe fraud is bad”), and others contain information that would have been in discovery anyway.
I get the feeling one thing going on is that there are safe statements, but it’s hard for laypeople to identify them ahead of time (see: SBF outlining his incompetence as if that was a defense instead of evidence of a crime). So lawyers default to the much easier to follow “please shut the hell up”.
Do you have estimates for client time? I expect many EA orgs to care more about that than lawyers fees, especially if potential increases are only on the order of 25%.
There is likely a ceiling effect, either on the volume of discoverable things or the other side’s CEA of marginal discovery.
I think major orgs have made “we think fraud is bad” statements. I assume no one thinks fraud is good, or would admit to it if they did, so those statements have zero value to me.
Whether there are other safe statements depends on the organization’s exposure, but in many cases your lawyers would have to engage in a lot of independent factfinding to figure out if that’s the case (including needing to figure out information not held by your organization or publicly available). On the other hand, “no one here ever interacted with SBF, took FTX money, or gave him much thought” is likely safe if true and shouldn’t require much work.
There were no safe statements a lawyer could identify for SBF—that would require identifying, accessing, and ingesting all material info DOJ would obtain on him, which was/is impossible.
Really hard for me to estimate staff time given the nature of the case. You probably can substitute lawyer time for staff time for many tasks if you value staff time at mote than the lawyer’s rate.
If you’re doing a CEA, you should consider that discovery will probably happen under a protective order and any litigation will very likely be settled in a way where there is minimal leakage of the discovered info. So I don’t think it is correct to assume that unfavorable information will be publicly disclosed no matter what.
This feels like a nonsequitur to me. The question is “is there information an org or person might like to disclose, but shouldn’t, due to its effect on legal risk (including procedural burden)?”. If the entity doesn’t want the information to be public then this question doesn’t arise (we could argue about whether orgs have a proactive moral duty to confess to crimes, but that’s definitely not the question here).
It sounds like you’re saying there is a ceiling on the burden for discovery, trial, etc, so at a certain point new statements can’t increase that burden, although they could have other negative consequences. Is that correct?
There is certainly a ceiling. Then again, your organization ceasing to exist because it’s overrun with legal bills and/or a crippling judgment is entered against it is a ceiling, and for smaller organizations (especially those that spent grant funds and are already going to get hit with a clawback) it may well be a realistic estimate of the ceiling.
As far as a non sequitur, I think we’re interested in somewhat different questions. My formulation is more: “What are the relative costs and benefits of making statements and releasing information on this matter?” I don’t find comparing benefits to only the increase in legal risk to be particularly decision-relevant on what organizations should do. I think almost any statement that is not “we’re giving back all the money, right now” is going to be net negative PR, and I think the increased risk of public disclosure of unfavorable information has to be considered to answer my question (it’s OK if it isn’t part of your question).
I would note that there is a huge jump from “unfavorable information” to “confess to crimes”—for instance, there is generally no duty to rescue in common-law jurisdictions (which would include the US and UK).
I’m not sure how to ask this but it seems like you’re...angry?… at me for trying to be precise about this? I’m not trying to challenge you, I just want to double crux to discover where our assessments differ. I thought that might have been any number of places you have expertise and I don’t, but now it seems like maybe you just don’t see value in public sense-making.
My two cents: I don’t read any negative emotions from Jason’s comment