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A class action against Paul Allen and his team at Charter Communications Inc. promises to resurrect concerns about conflicts between research analysts and investment bankers. Only in this case, the analyst, Aryeh Bourkoff of UBS, is also the banker.
Bourkoff joined the banking ranks in 2007 after serving as an analyst since 1999. And though he's not a named defendant in the complaint, he's clearly its central character. Or, more precisely, his career transition goes to the suit's core.
Chief among alleged sins attributed to Bourkoff was his public statement that Charter stock "could reach $10." The complaint charges he did so in a report published in October 2006 and that he reprised the projection during an appearance on Bloomberg Television in January 2007. (The stock traded between $2 and $3 per share in this period.)
Pretty flimsy stuff, even for those given to conspiracy theories. But the plot firms a bit after Bourkoff jumped to the investment banking side of UBS in April 2007. "Bourkoff's $10 buy recommendation," the suit continues, "was not withdrawn until some time in January of 2009."
Only a month after the withdrawal, Charter announced its plans to enter Chapter 11. A month later, UBS announced Bourkoff's promotion to joint global head of media and communications investment banking. That's when, the suit says, "it was revealed that Bourkoff had worked on a variety of big media deals including the restructuring of Charter Communications. In other words, Bourkoff had been working to obtain Charter's business while giving it a buy recommendation with a value of $10."
While it's hard to accept this statement at face value, a subsequent assertion seems even less credible: "Charter's stock was not worth $10 and there was no way that it ever could be with its debt at the time. Bourkoff was directed to make that statement and other statements related to Charter by the defendants [CEO Neil Smit and CFO Eloise Schmitz, in addition to Allen] as it was later revealed that, after making this recommendation, Bourkoff had become Charter's primary banker."
Bourkoff's beyond-reproach reputation can withstand these and other allegations original plaintiff Herb Lair made. That's why it seemed prudent to wait out the weeks necessary for federal court in Arkansas, where Lair filed the suit in June, to come up with grounds for dismissal.
However, rather than a dismissal, the suit last month received new lead plaintiffs in several pension funds, which last week obtained a 60-day extension to amend the complaint. Legal representation, meanwhile, shifted from Walden Law Firm PLLC of Little Rock, Ark., to Coughlin Stoia Geller Rudman & Robbins LLP, a national firm whose $7.3 billion class-action recovery from Enron Corp. ranks as the largest of its kind.
So what initially looked like a nuisance suit by a disgruntled but ignorant shareholder may need to be rethought. Lair laments having "put so many people into that stock." But he also identifies himself as both a former cable executive and a former UBS employee. His five years as a registered representative and financial adviser for UBS didn't end until January, and his three decades in engineer-oriented enterprises often had him providing what his resumé calls "turn-key solutions for cable companies." Hence the resumé's summary statement: "Background in cable and data transmission technologies coupled with financial service experience."
Lair lets on that his interest in cable is such that he still attends trade shows sponsored by the National Cable & Telecommunications Association — "at my own expense" — and that at the 2007 event in Las Vegas he even palled around with the same Bourkoff now prominent in the class action. "I wish he had distanced himself from his Charter relationship instead of leveraging it to move himself up the organization," Lair says. "Instead, he was the only one at that point giving Charter such a high recommendation."
There are reasons to believe the suit won't prevail. It's hard to imagine Allen's "only motive was to artificially inflate the securities of Charter," as the suit declares, when many believe he, who had the most to lose, embraced bankruptcy early on as the most equitable solution. It's also difficult to believe that Bourkoff, who now represents a Charter bondholder group that at times opposes Charter, would risk his career to rise another rung on the ladder.
Yet the complaint does have all the hallmarks of another Wall Street versus Main Street story. And in this environment that's a story Wall Street doesn't need.
Richard Morgan covers media for The Deal.
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