埃里森败诉，不情愿地“捐赠”1亿美元（编译新闻）

Published: September 16, 2005

CHARITY, according to popular lore, begins at home. These days, however, it sometimes begins in court. Therein lies a question of propriety, as well as one of just whose interests are being represented.

Call it "settlement charity." Lawrence J. Ellison, the chief executive of Oracle, has settled a shareholder derivative suit, without admitting he did anything wrong, for a $100 million donation in Oracle's name to a charity chosen by Mr. Ellison.

The suit in question is one of three that were filed after it came out that Mr. Ellison sold some Oracle stock at an opportune time in early 2001, weeks before the company reported that it would not meet its sales goals, sending the stock down from levels it has not seen since. The suits saw those sales as insider trading.

Mr. Ellison denied he knew how bad things were getting, and a Delaware judge dismissed one suit, concluding there was no evidence to the contrary. A class-action suit filed in federal court in California is still pending, but this settlement deals with the derivative suit filed in California state court, ostensibly on behalf of Oracle. It demanded that Mr. Ellison turn over to the company the money he saved by selling Oracle shares before the fall.

Had that suit prevailed, Oracle would have received a lot of money, so it arguably was in the interests of the shareholders. But the settlement provides for something else entirely.

Oracle will pay $24 million to the plaintiffs' lawyers, with $1.5 million of that to cover their expenses and the rest for a fee. The company owned by the shareholders will have that much less cash. Mr. Ellison will donate $100 million to charity.

How does that benefit the company? The lead plaintiffs' lawyer, Joseph J. Tabacco Jr., a partner in Berman DeValerio Pease Tabacco Burt & Pucillo, told me Oracle would benefit because its chief executive would not be distracted by having to defend the suit, something one might think could have been arranged had the suit not been filed in the first place.

He also points to new rules by Oracle, not yet detailed, that are supposed to increase protections against insider trading by company officers.

BUT the real gain, to hear Mr. Tabacco tell it, is "a positive benefit for Oracle in fulfilling its obligations as a good corporate citizen." Giving that money to charity "will enhance its reputation and improve its shareholder value."

Some might think that Oracle's reputation is harmed by Mr. Ellison's decision to settle, rather than fight, a suit that called his integrity into question. Others might conclude the settlement does not fit the charge. If Mr. Ellison did harm the company by his trading, he should pay the company, not some charity.

John C. Coffee Jr., a professor of securities law at Columbia University, is not persuaded justice was served. He suggested that it "would be fairer if the plaintiffs' attorneys would take their fee in the form of a charitable contribution that Mr. Ellison would make in their name to charities of his choice." Perhaps, he mused, Mr. Ellison would choose a charity that promotes tort reform.

Mr. Tabacco, unsurprisingly, did not like that idea. "We think it is fair compensation for bringing substantial value to the company," he told me, adding that compromises are necessary in any negotiation and that he had worked hard to get his clients the best deal possible.

"Given the amount of work that went into putting the case to the point that it was ready for trial, we should be fairly compensated," he said.

One fascinating thing about the result, assuming a judge signs off on the settlement, is that the as-yet-unnamed charity could never have filed suit to get the money from Mr. Ellison. But it gets the cash, and does not even have to pay the lawyers.

There is no doubt that the lawyers, who were chosen by eight shareholders with small stakes, will do very well. It is not nearly as clear that their clients have reason to rejoice.