WASHINGTON — Goldman Sachs Group may be better off cutting its losses instead of fighting what it terms "unfounded" fraud claims, say professors of securities law who have examined the Securities and Exchange Commission's lawsuit against the bank.
The most profitable firm in Wall Street history probably will lose what is typically the first hurdle in court, a motion to throw out the suit because it lacks legal merit, the professors said in interviews this week. After that, Goldman Sachs' risks will mount and its negotiating position will weaken, they said.
"There's a very low probability that Goldman could get the case dismissed," said Thomas Hazen of the University of North Carolina at Chapel Hill, whose books include a two-volume treatise on broker-dealer law. "Every pretrial motion the SEC wins, Goldman gets one step closer to losing."
Goldman Sachs is the first major Wall Street firm accused by regulators of fraud connected to the collapse of the subprime mortgage market. The SEC's allegation that Goldman Sachs defrauded investors sparked a 13 percent, one-day decline in its shares. The New York-based firm, led by CEO Lloyd Blankfein, 55, said it will vigorously contest the claims. It must weigh the risks of a drawn-out legal battle against the benefits of a more immediate resolution.
"We are disappointed that the SEC would bring this action related to a single transaction in the face of an extensive record which establishes that the accusations are unfounded in law and fact," the bank said after the complaint was filed. Lucas van Praag, a Goldman Sachs spokesman, declined to comment on the likelihood of getting the case dismissed.
Blankfein and other executives at the bank are scheduled to testify at a Senate hearing this week along with Fabrice Tourre, the Goldman Sachs banker who was also sued by the SEC. The Permanent Subcommittee on Investigations will explore investment banks' role in the financial crisis at the Tuesday hearing.
Blankfein on Thursday attended a speech by President Obama in New York City pushing for financial regulatory reform, as Congress weighs legislation that could crimp profits for Goldman Sachs and the biggest U.S. banks. The legislation may come to the Senate floor as early as this week.
Other firms weigh in
Even if top managers are certain they're right on the merits of the case, Goldman Sachs should probably settle, said senior executives at three of the firm's rivals. The executives, speaking anonymously because they wouldn't comment publicly on a competitor, said Goldman Sachs would be better off by deciding to settle the suit, cut its losses, and focus on repairing the damage to the firm's reputation.
Two of the executives said they also believe Goldman Sachs may have to change senior management to give the appearance that the firm is changing the way it does business.
The SEC's case revolves around whether the firm should have told investors that hedge fund Paulson & Co. helped pick the underlying securities in a collateralized debt obligation — and then bet against it. Paulson wasn't accused of wrongdoing.
That's too nuanced a judgment to make on the limited evidence available so far, making it unlikely the case will be dismissed, said Peter Henning, a former SEC attorney who teaches at Wayne State University Law School in Detroit. U.S. District Judge Barbara Jones, who was assigned the case and also presided over the case of former WorldCom CEO Bernard Ebbers, won't dismiss it because materiality is what's at issue, said Columbia University's John Coffee.
If the SEC's case survives a dismissal motion, the case probably would proceed to discovery, when the agency may seek additional testimony or information from the firm. That process could provide fodder for private lawsuits, additional allegations from regulators, or media attention that would further tarnish the firm's image, according to George Cohen, a corporate law professor at the University of Virginia School of Law, and Lisa Casey, who teaches securities law at Notre Dame.
"The evidence and rumors would be difficult to contain," Casey said. "The market could react any time more information leaks out to the press."
Few professors were willing to predict which side would win in a trial, saying the case will depend on evidence and testimony that isn't yet public. If weaknesses emerge in the SEC's case, Goldman Sachs may decide to press on.
The reputational stakes are so high that Goldman Sachs may feel pressure to keep fighting, said Onnig Dombalagian, a former attorney fellow at the SEC who teaches at Tulane University Law School in New Orleans. "For Goldman not to stand behind its deals would be problematic for the firm," he said.
If Goldman Sachs settles or loses at trial, "people are going to ask, 'Am I one of the clients who Goldman does deals for, or am I one of the clients Goldman does deals against?'" Dombalagian said. "There's the saying that if you don't know who the mark at the table is, you're probably the mark."
Tamar Frankel, a corporate governance professor at Boston University, said a jury may be hostile to Goldman Sachs. "If many of the jurors have lost chunks of their savings in the crisis, the weight will be for the SEC," Frankel said.