Big businesses keep lawyers busy

Business seems to be getting more headlines for legal actions than for doing anything useful lately, although I suppose those hefty lawyers' fees should get a bit of extra cash in circulation around Christmas and thus stave off the almost-official global recession.

First up was the settlement of the Merrill Lynch Investment Managers/Unilever case. The battle of the babes has seen Merrill paying around £75 million (€95 million) in damages and costs to Unilever, which had claimed £130 million following its allegations that the fund manager hadn't managed its money within an agreed framework.

While both sides are undoubtedly happy that the case won't drag on still further, letting it get to the point it did does, perhaps, provide an insight into the mindset of the Merrill team. Fund managers always believe they can take on the market and win. Fund managers like to tell the client that even when they're losing, they're winning - how many other firms can tell you that your investment is worth less than it was a year ago but, hey, you haven't lost as much as someone else so pay the fees, you've done well!

The case has turned an ugly spotlight onto the world of fund management and not everyone has liked what they've seen. Fund management companies often sell their particular fund based on the charisma and personality of the manager concerned but they also have systems of risk control in place so that truly horrible things shouldn't happen.

As I think I said before, the more controls you have the less horrible things will happen but the less chance you have of outperforming an index too. The result of this case may well make fund management companies less inclined to take risks, which in turn reduces their chances of beating the index - which will also make clients wonder what exactly they're paying for. After all, if your manager of choice can't give you better performance than a simple index, why bother?

Now, of course, there's talk of a number of different funds considering legal action against their fund managers for less than stellar performances.

I remember a few years ago having lunch with a company whose financial director was considering changing the fund manager who looked after its pension fund. They had a "beauty parade" of management companies into the office all making a pitch for the business.

First up was a manager who extolled the previous year's performance of her company, which had produced some startlingly good returns. Next up was a company who had employed a new manager with an excellent track record. A third company, again with an excellent track record, was also making a pitch.

The interesting thing about this particular beauty parade was that all three managers were actually talking about the same performance. In the case of the first company, returns had been excellent the previous year. But it had lost two of its key managers a few months earlier. One of those managers was now in the second company, telling the financial director that it was his strategy that had produced such good results before.

And the second manager had pitched up in the third company and was selling exactly the same strategy even though the third company had done well anyway. Hobson's Choice, the financial director told me, and he really wasn't sure whether moving the funds was a good idea. He was seeing a few more managers the following day. It's a hard life being a financial director!

Almost as hard as the life of an auction house owner. Not having made my fortune (unfortunately) in financial services, I've never had occasion to pop along to Sotheby's or Christie's for an afternoon of waving my paddle about and making index-popping bids on objects d'art, so I knew nothing about the system of commissions that was in place for people that did.

Now, courtesy of the courts, it appears that there was a cosy fixing of commission rates between the two houses, which led to consumers being fleeced. Obviously if you've got a few spare million to drop on a Dutch Master, you're not exactly strapped for cash but you still don't like to think that your broker (which is what an auction house is) is colluding with the opposition as far as their fees go.

Anyway, the houses have been found guilty, the customers are going elsewhere and the reputations of Alfred Taubman, Diana Brooks, Sir Anthony Tennant and Lord Camoys are in tatters.

Meanwhile, the Enron debacle is likely to see a lot of legal fees over the coming months. According to the Washington Post, the vice-president of the New York-based Amalgamated Bank has filed suit against Enron alleging that executives in the company were involved in insider trading since they sold 17.3 million shares over the past three years.

The bank claims the executives misled and defrauded the bank as well as other investors who didn't have the information. Amalgamated has lost $10 million on its Enron holdings and I guess they're feeling somewhat bitter about things. I can't but think that the lawsuit will end up costing them more. There are times when you just have to take it on the chin.

And, although it's not exactly a lawsuit, German banks are taking it on the chin in regard to allegations by the European Commission that they colluded in fixing foreign exchange charges to change money from one euro-zone currency to another.

Back in July the Commission dropped proceedings against a vast number of other banks (including Irish banks) for the same offences - although this was partly because a sizeable number of them reduced charges for the summer holiday season. The Commission is still investigating some banks but I'm not holding my breath for massive penalties.

The single, most annoying thing about banks and the euro is that there isn't a centralised clearing system for cheques and because of that you can't write a cheque and present it in another euro country even though the currency is the same. The banks say that it's too difficult but that's just a cop-out. If everyone started presenting cheques wherever they liked in Europe, the banks would lose the exorbitant minimum €19 that they charge for bank drafts. And that would be difficult.

One day it'll happen. But we might have to wait for the lawyers to step in first.