George Orwell was right about a lot of things, including this essay on revenge. I thought of it when I read this report, and this one, of Bill Lerach's plea.
I spent a large part of the 1990s defending securities cases filed by Mr. Lerach. I once wrote a brief that annoyed him enough to tell the partner I worked for to reprimand me. As an academic, I thought his pursuit of Dan Fischel way out of bounds, and I agree with the argument that these suits were about investor losses that were offset by other investors' gains (though they no doubt created a useful deterrent effect as well). In other words, I am not a natural booster.
But much of the reaction to the plea strikes me as unseemly triumphalism. The plea is said to taint the cases he brought. What nonsense. Whatever one thinks about that sort of suit, payments to named plaintiffs are unrelated to the merits, and barely related, if related at all, to the amount of class recovery. Some of those cases had merit; many, in my view, did not. But whether they did depended on what the defendants knew compared to what they said, not on side payments made from counsel's fee award to the named plaintiff. No one involved in those cases thought they were about the named plaintiffs.
That does not make the payments lawful, of course. The theories of the indictments are perfectly cogent. But it counts for something that Lerach protected his firm, and thus innocent employees, from the taint of his own acts, and simply confessed guilt. (His surprisingly good plea deal--kudos to John Keker--no doubt made that easier, of course.) There is a lot to be said for a clean acknowledgment of guilt and acceptance of punishment. It happens less often than one would expect, and it should not be the occasion for gloating.
DM