A Loss in San Francisco

Readers may recall that we were exercised last week about a motion that CalPERS’ attorney had sent to us in advance of his plan to file it. It was short, and the part that had us less than happy was that it stated that our case against CalPERS on a specific Public Records Act request was dismissed with prejudice. This motion applied to only one Public Records Act request but it was for private equity fund data, and we were keen to get that information. We had a copy of the trial transcript, and the judge had made no such statement (the judge had ruled from the bench and has asked opposing counsel to write up the order). In written rulings, judges are normally quite specific as to when they dismiss a case with prejudice.

Our attorney went to court on Friday to get the order corrected. This is a routine procedure, but he still had the relevant citations, both in civil procedure and in case law.

The judge had his clerk go to the clerks of the judge who made the original ruling. To our surprise and dismay, word came back that this was what the judge intended.

I am at a loss to understand this outcome, since the Public Records Act request had not been completed. Barring an information requester’s ability to resort to the courts if an agency does not provide information vitiates the intent of the Public Records Act. This ruling is tantamount to the judge saying she thought our conduct was unreasonable. As we have set forth in previous posts, CalPERS had closed our Public Records Act request twice, and only began to produce meaningful information after we filed suit, which would seem to be strong proof that litigation was required to induce them to take our request seriously. And after one round of incomplete records production, CalPERS quickly moved our case over to outside counsel, and further records production ceased even though our counsel told CalPER’s attorneys over six weeks before trial that what we had gotten was incomplete and to a significant degree not in formats that are non-responsive under the Public Records Act. Thus from our vantage, it is hard to see what was so unreasonable about our course of action to merit such harsh treatment.

So why did things turn out this way? Some general theories:

From Gene Ludwig, who was my attorney many years ago: “Litigation is a crapshoot. Anyone who tells you otherwise is lying.”

From a savvy, extremely well connected expert on politics who heard the long-form story of our case: “You shouldn’t feel bad about being beaten up by thugs.”

While those may be satisfying explanations, they aren’t quite right. Our judge has a reputation for being moderate. But here are some of the things that might have been at work:

We may have misunderstood the de facto bar for these cases. Agencies may be accorded a certain degree of deference, raising our burden of proof, and CalPERs, being well-regarded in California, may get more deference.

We were almost certainly seen as not serious, and possibly a crank. I was told early on that this would be an issue in how CalPERS saw our request, since parties who lodge Public Records Act requests generally either have a clear commercial interest (as in they want the data to include in a data base of some sort or are recognized news organizations) or are eccentrics. Since I wasn’t slotted into the first category, until proven otherwise, I would be assumed to fall into the latter. And having a young solo practitioner as my attorney (who looks ten years younger than he is) probably didn’t help (as in if I were serious, I’d presumably have more heavyweight or conventional-looking counsel).

The judge accepted CalPERS’ framing that they were cooperating with us and that our demands were confusing (and there was also an insinuation that we have taken advantage of the PRA process to keep expanding our request, which is perverse, since we could have just as easily filed new requests). In fact, as we explained in our last post, the elaboration of our initial request took place only once, at CalPERS request. We had requested fund performance data that Oxford academics said was previously unpublished CalPERS data (meaning it had to come from CalPERS) that served as a basis for a 2013 paper. CalPERS initial stance was “never heard of them” but that after my lawyer escalated, they told us to tell them what we wanted “to see if we can make everyone happy.” Remember, CalPERS could just as easily have read the description of the data in the paper themselves or have contacted the academics themselves (which they eventually did). I made a good faith reading of the paper, including quoting it at length. CalPERS’ actions indicate it agreed with that reading, otherwise it would not have provided certain types of information it supplied. Even though we tried clarifying the timeline in our filings (and looking at the sequence of events would have revealed CalPERS was footdragging), a more superficial reading of the documents would lead one to see that CalPERS was polite in its communications even as it was not acting on our requests.

The judge also seemed to base her reading on the law as presented by opposing counsel. Steptoe & Johnson cherry-picked isolated sentences from cases where the underlying facts were not apposite to our situation. Our counsel spent more time on the factual portion of the argument than on the legal rebuttal, and that may have been a crucial error.

A final key error was our response to two documents Steptoe filed at the very end of the day on a Wednesday when our hearing was Friday morning. Any such filing should have been in days earlier. My young attorney Timothy Fong was already full on preparing for the Friday hearing. The two documents added to his overly-full plate. In retrospect, we should have rescheduled the hearing date. Fong came to court planning to object to the late filing but was badly thrown off when the judge’s initial remarks indicated she accepted Steptoe’s framing. He had also made a procedural error which the judge waived, but that undermined his plan to object to the late Steptoe filing. So he was not effective in pushing back against the judge’s preliminary reading that Steptoe was cooperating, which a step-by-step explanation of the sequence of events would have shown was a questionable conclusion.

But perhaps I was simply naive. Here I have been chronicling for nearly four years how mortgage borrowers fall victims to errors and outright predation by servicers, and often lose when they seek redress from the courts.

On the other end of the spectrum, the week before last, Judge Jed Rakoff received a sharp rebuke for ordering Citigroup and the SEC to go to trial rather than enter into a proposed settlement because they hadn’t given him enough information for him to determine whether the settlement was fair. James B. Stewart, who is not the sort to stray far from mainstream thinking, felt compelled to write his own dissent to the Rakoff appellate smackdown based on the widespread reservations in the legal community about it. From Stewart’s New York Times article yesterday:

This month, the influential Court of Appeals for the Second Circuit in New York clipped the judge’s wings, saying he had “abused” his discretion. The opinion is brief, but so sweeping in its implications that it has alarmed a wide swath of lawyers who specialize in securities law.

The court “is basically making it next to impossible to review any kind of settlement,” said Erik Gerding, associate professor at the University of Colorado Law School….

John C. Coffee Jr., a professor at Columbia Law School, called the ruling a “perfunctory” opinion and said it was a mystery to him why it took the court more than a year to write it. “An average law clerk could have drafted it in two days,” he said.

To my surprise, even prominent corporate defense lawyers who said they felt that Judge Rakoff had gone too far told me this week that they were troubled by the appeals court’s reasoning and its implications. (They didn’t want to be identified, since they litigate before the Second Circuit.)

I had assumed because my matter was comparatively straightforward and CalPERS had delivered information only under pressure, and then stopped, that it would not be hard to make a credible case if CalPERS had indeed not completed my PRA before the hearing date. But the pro-business/big institution leaning of the judiciary all over the US seems to be increasing. California sources tell me, for instance, that many foreclosure defense attorneys are closing their practices because it has become even more difficult to prevail in court (and mind you, this comes after the passage of a Homeowner Bill of Rights that was designed to do the exact opposite).

So I was naive. That does not mean this Public Records Act request is over.* CalPERS has said in court filings they agree I should have the data I’m seeking. We’ll see if they are as good as their word. The court was the most straightforward route for applying pressure in the face of unresponsiveness and delays, but it not the only avenue if the information is not forthcoming in a reasonable time.

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* An appeal is not an option. The form of our filing was a writ of mandate. California has an extremely short window for filing an appeal, a mere 20 calendar days from a ruling. These filings are more elaborate filings than typical appeals, and generally have low odds of success. The deadline for filing an appeal has passed.