Nov 18 (Reuters) - A former Securities and Exchange Commission economist who was cited by a judge for giving
fraudulent testimony in a case against Morgan Keegan & Co. is
fighting back in a battle for his reputation.
The outcome could potentially affect hundreds of claims
against Morgan Keegan and other securities firms in which
investors are relying on the witness, Craig McCann, who heads
Virginia-based Securities Litigation and Consulting Group Inc.
McCann, who has riled the brokerage industry in his many
appearances, wants a Houston federal judge to delete references
to him in a recent court opinion that threw out a $9.2 million
ruling that a group of investors had won against Morgan Keegan
in a Financial Industry Regulatory Authority arbitration case.
The investors hired McCann to testify on their behalf in the
case.
His motion to the court was among a recent flurry of legal
filings in an already bitter dispute between Memphis-based
Morgan Keegan & Co., a unit of Regions Financial Corp., and a
group of investors over losses tied to troubled bond funds.
The Houston U.S. District Court judge, Lynn Hughes, in late
September, invalidated the $9.2 million FINRA ruling against
Morgan Keegan, in part because of McCann's allegedly
"fraudulent testimony" regarding the investors' claims against
the firm. Lawyers for the investors have appealed the decision
to the U.S. Court of Appeals for the 5th Circuit.
The finding by Judge Hughes hinges on calculations that
McCann made about the valuation of funds in the case. He
revised the figures in a later Morgan Keegan case.
EXPERT WITNESSES VS OPPOSING LAWYERS
McCann, a well-respected expert witness, has testified in
numerous cases against securities firms on behalf of investors
and regulators, including the SEC. But the court's opinion,
which links McCann to alleged fraudulent conduct, could now
potentially undermine his credibility.
Lawyers in other Morgan Keegan cases are already using the
decision to discredit McCann, he wrote in an affidavit. Some
lawyers working on cases against other firms have told McCann
they will no longer hire him and asked him to return their
retainers, McCann wrote.
About 1,000 investors filed arbitration cases involving
losses they incurred during 2007 and 2008. Many cases are still
pending. Morgan Keegan paid a $200 million fine to the SEC and
state regulators this summer to settle fraud allegations.
Expert witnesses are frequently under attack by the
opposing parties' lawyers. But the ruling about McCann is
"unusual," said Constantine Katsoris, a professor at Fordham
University School of Law in New York.
"Fairness would dictate that you should be able to defend
yourself," said Katsoris, who has been an arbitrator for 40
years. McCann said he didn't know of Morgan Keegan's efforts to
use the figures to overturn the ruling until he read the
opinion, according to an affidavit.
Judge Hughes, in an initial hearing on the matter last
week, showed no inclination to change his mind about McCann,
according to a review of the transcript. McCann was paid and
coached by lawyers who didn't try to retract the earlier
figures, Judge Hughes said. "We are not reopening the record
because he doesn't like how he was represented," the judge told
lawyers. Still, he ordered the parties to file more information
about the case.
DEFENSE FOR EXPERT WITNESS
McCann's lawyers, in legal papers filed on Monday, said
Morgan Keegan "misstated and withheld key information" from the
court when it alleged last year that McCann's testimony was
fraudulent. The brokerage firm, they said, "concealed" its
knowledge of McCann's revised calculations because he informed
them of the problem during another arbitration case, in which
he also testified about the changes, McCann's lawyers wrote.
McCann declined to comment.
A Morgan Keegan spokeswoman declined to comment. But the
firm's lawyers argued in court documents filed late Thursday
that he has no right to relief, because he isn't a party in the
case. His allegations are "meritless," wrote lawyers for the
firm, which has been taking the unusual step of challenging
some of the largest arbitration rulings against it in court.
McCann is not "the first disgruntled expert to seek
intervention and his predecessors have quite properly met with
no success," they wrote, in an earlier filing.
But even without that intervention, one recent effort to
discredit McCann fell flat. A FINRA arbitration panel, on
Thursday, ruled in favor of an investor who relied on McCann's
testimony in a dispute against a unit of Citigroup Inc. over
losses tied municipal arbitrage funds. The panel awarded the
investor $706,760 -- the full amount of his losses -- plus
interest and certain fees, according to Philip Aidikoff, a
lawyer for Aidikoff, Uhl & Bakhtiari in Beverly Hills,
California. Citigroup could not be reached for comment.
"Craig (McCann) was subjected to the most aggressive cross
examination I can recall," said Aidikoff, who represented the
investors.
(Reporting by Suzanne Barlyn)
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