Lawyer Diversity Helps Judge Pick FirstEnergy Lead Plaintiff

Nov. 17, 2020, 9:13 PM

FirstEnergy Corp. shareholders who filed derivative suits over the company’s purported role in a state legislative bribery scandal got six of their suits consolidated in federal district court in Ohio.

The energy company’s shareholders also secured co-lead plaintiffs and co-lead counsel in the U.S. District Court for the Southern District of Ohio. FirstEnergy’s directors and officers allegedly caused the company to secretly spend millions in support of state legislation in its favor, the shareholders said.

Two pension funds—Employees Retirement System of the City of St. Louis and Electrical Workers Pension Fund, Local 103, I.B.E.W.—will take charge of the litigation for the shareholders, Judge Algenon L. Marbley’s order said.

The pension funds own about as many FirstEnergy shares combined as a third fund that also vied for the lead role, and both candidates demonstrated their “vigorousness” in investigating the alleged misconduct and filed “high-quality pleadings,” Marbley said. That leaves their counsel choices to set them apart.

Saxena White PA and Bernstein Litowitz Berger & Grossmann LLP, the firms the pension fund duo chose as co-lead counsel, “both have considerable track records of successfully prosecuting shareholder derivative actions, including one against FirstEnergy,” the order said.

The two firms are also impressive because their proposed leadership team of nine lawyers “includes five women and at least two minority lawyers,” Marbley said. Saxena White is a “minority- and women-owned firm, and both firms’ associate groups consist of women and lawyers of color at above-average ratios.”

The “diverse team” the firms put forth “best reflects the plaintiffs’ diversity and is best suited to act on their behalf,” the Monday order said.

The third fund’s counsel—Berger Montague PC—also has complex litigation experience and zeal, and the court “chooses here only because the parties have requested it to do so,” Marbley said.

FirstEnergy in October asked a federal judge in the Northern District of Ohio to toss a separate federal shareholder action involving similar allegations. A motion to transfer that suit to the Southern District is pending.

Jones Day represents FirstEnergy.

The case is Bloom v. Anderson, S.D. Ohio, No. 20-cv-04534, consolidated and lead plaintiff appointed 11/16/20.

To contact the reporter on this story: Jennifer Bennett in Washington at jbennett@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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