In re InfoUSA, the Clintons, and the Prohibition on Coyness

We are still discussing In re InfoUSA. The primary materials for the case, including the opinion, can be found at the DU Corporate Governance web site.

We noted in an earlier post that the plaintiffs sometimes say too much in a complaint and can be subjected to chastisement for doing so. This occurred in connection with a reference to a yacht that employed an "all female crew." Better to not have said it was the clear message of the opinion.

Yet sometimes plaintiffs can be in trouble for not saying enough. This also occurred in InfoUSA and involved allegations concerning Bill and Hillary Clinton. The complaint alleged that the CEO allowed assets to be used by various persons, including "a former high ranking U.S. government official (and his wife)." See paragraph 73 of the Amended Complaint. The reference, as we have came to learn, was to the Clintons. We did not uncover this fact through a close reading of the amended complaint. The names nowhere appeared in the document. Instead, we found out from the Chancellor in In re InfoUSA, who accused the plaintiffs of excessive coyness.

• "The amended complaint refers several times to a 'former high-ranking government official' and his wife, although any reader with a passing knowledge of current events should be able to narrow the list of possible officials down to a short-list of one. Given that [the CEO] has publicly discussed this relationship, further coy references serve little purpose." [emphasis added]

Rather than be "coy," the Chancellor then proceeded to mention the Clintons 23 times in the complaint, rivaling only the CEO as the most mentioned name. As a result, a conflict that seemed relatively apolitical from the complaint reads like a major political event from the opinion, not to mention that it is now permanently ensconced in easily searchable data bases (not something that can be said of complaints).

In this case, it was the "coy" approach of the plaintiffs that ought to have carried the day, with the Clintons left out of it.