In the first lawsuit (during the proxy fight), the judge held that certain statements made in proxy materials were false and misleading. That lawsuit settled. In the next lawsuit (the 10b-5 class action), plaintiffs explain that precisely the same statements appeared in an annual report, and it is now settled law that those words are false and misleading. How do you avoid the devastating effect of collateral estoppel in the second case?
I solved that puzzle back in 1990. Now I’ve moved in-house, and I fear that I’ll never solve a similar puzzle again.
Have I lost my creativity? I don’t think so. Does my job still require creativity? Yes — but different kinds of creativity. This column is a requiem to a type of thinking that an in-house job — or, at a minimum, my in-house job — doesn’t seem to permit….