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October 27, 2002
David Warsh, Proprietor


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Going to Trial?

It sounds as though the Andrei Shleifer matter may be going before a jury next year.

When the US Attorney in Boston two years ago accused Harvard University of bungling a critical government-funded mission to Moscow in the 1990s by failing to keep tabs on its advisers’ financial frolics there, the proceedings provoked an avalanche of discovery — letters, memos, emails, handwritten notes, even records of wire transfers to a Channel Islands bank.

Last week the judge in the case listened as all sides argued that he should decide the matter now, by himself, on the basis of the evidence adduced so far, instead of sending it to a jury.

US District Court Judge Douglas Woodlock did not seem persuaded. At the end of the day, he pushed the matter forward, through another round of arguments, and perhaps several steps closer to trial.

It was in September 2000 that the US Attorney sued Harvard and four defendants, professor Andrei Shleifer chief among them, in Massachusetts District Court.

The government charged that Shleifer, a distinguished Harvard economist who had lived in Russia until his family emigrated to the US when he was 15, quietly had invested on his own account in a violation of his contract, while giving advice to Russian reformers on how to make the transition from state control to open and transparent markets.

For five years in the mid-1990s, Shleifer led a large Harvard team employed by the US Agency for International Development (USAID) to advise the Russian government on everything from the privatization of state-owned enterprises, to legal reform, tax reform, the development of capital markets and the creation of a Russian securities and exchange commission.

Nor was it just Shleifer who had sought to profit on the sly, according to the government lawsuit. So had his deputy, lawyer Jonathan Hay (who was writing the Russian securities law for the team at the time), Shleifer’s wife Nancy Zimmerman (a well-known hedge-fund operator making investments in Russia), Hay’s companion, Elizabeth Hebert (proprietor of the first mutual fund management company to be permitted to sell shares to the Russian public), and Hay’s and Zimmerman’s fathers as well.

When Harvard was confronted with the fact of the investments in 1997, after the government began its investigation, it relieved Shleifer of his advising responsibilities and fired Hay altogether.

The Russian government thereupon fired USAID, asserting that its American counselors had done nothing wrong.

Whereupon the US government accused Harvard of failing to monitor the project properly, demanding $120 million in damages, or three times the value of the $34 million contract. It named Shleifer, Hay, Zimmerman and Hebert defendants as well. The court later dismissed the case against the women.

Shleifer (or at least his wife) and Hay have since admitted making various investments but said they were permitted to do so under their various contracts’ language.

Harvard — whose own money managers had been investing portions of the university’s endowment in Russian securities while apparently consulting the pair for advice — has vigorously defended the team for its “superb work helping to solidify the political and economic revolution in Russia.”

Whatever else, Harvard asserts, the university should not be liable under the False Claims Act.

Meanwhile, economist Lawrence Summers, who as a young professor in the Harvard economics department had been Shleifer’s mentor, moved through a series of top jobs in the Treasury Department (where he had served as the Clinton administration’s point man on the Russian economy), then to the presidency of Harvard University itself.

Since returning to Harvard, Summers has recused himself from decisions about the case — but not before telling his faculty dean how important he felt it was to keep Shleifer on board.

Summers’ Treasury Department oversight of the advice given to the Russian government forms no part of the government’s complaint. But the Harvard president was deposed by government lawyers earlier this year in connection with the advice he had given to Shleifer over the years.

Shleifer last year testified that Summers and his then-boss, Treasury Secretary Robert Rubin (who is now a top Citigroup bank executive as well as a member of the secretive little board known as the Harvard Corporation that governs the university) were among several employees of the US government who knew that his wife was investing in Russian securities.

“Ms. Zimmerman’s investments were conducted openly and discussed with so many people” that Shleifer was unable to identify all persons employed by the United States government and USAID who may have had knowledge of her Russian investment activities, he testified.

Last week Judge Woodlock heard oral arguments on rival motions for summary judgment. Attorneys for all sides earlier had argued that enough evidence already had been adduced in the case to permit the case to be decided now.

For most of a four-hour hearing, the judge did not sound as though he agreed.

He described one of the main lines of defense — that Shleifer had been a mere consultant, and not an employee covered by the university’s contract — as a “shell game.” He voiced skepticism at another strut — the argument that since Shleifer and Hay had been physically absent from Russia when they made their investments, the deals were legitimate.

He also expressed reservations about the government’s use of the False Claims Act, with its Big Stick penalty of treble damages, to pursue its case. “You don’t want [the statute] sucking up every aspect of relations with the government,” he said. At another point he observed that that the unfamiliar extension of old law to new spheres was the sort of matter that many judges look to juries to decide.

He called for a new round of briefs by December 12, with replies due on January 9. Thus his decision of how to proceed therefore won’t come before early next year.

The Shleifer case might have been settled quietly long ago, at least by Harvard, but for the huge penalty the government is demanding from the university. But then maybe the government knew what it was doing in raising the stakes

The US government claims that Harvard’s mission to Moscow in the ’90s sent “exactly the wrong message” to the Russians. Harvard asserts that neither the university nor its professor did anything wrong. The American economics profession, meanwhile, has elevated Shleifer into its uppermost ranks, awarding him the John Bates Clark medal (for, among other things, his work on corruption) and favoring him with the highly visible editorship of the Journal of Economic Perspectives.

Three of the biggest players in the world of ideas are at loggerheads over a fundamental question of right and wrong. It is of universal importance in the emerging global economy. This is one of those cases where the public interest requires a clear decision.

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