Colluding Private Equity Firms Given Last Chance to Reveal Material Facts

On Friday, responding to a heavily blacked-out version of a 217-page complaint released by private equity firms alleged to have colluded to drive down prices of companies they sought to buy, U.S. District Judge Edward Harrington said the firms had failed to overcome the “presumption of public access,” and had failed to explain, how the details they had redacted could cause “specific and severe harm,” if revealed.

The private equity firms involved, namely Bain Capital Partners LLC, Blackstone Group LP, Goldman Sachs, KKR & Co and others were responding to a motion made by the New York Times to make the entire complaint public, and the companies have been seeking to block full transparency in the matter.

The federal judge gave them one more chance to release a proper version of the complaint or explain how the portions they had redacted from the complaint could cause material harm if the public gained knowledge. The lawsuit contains embarrassing allegations that the private equity firms named had colluded to drive down prices on companies, which they then proceeded to buy.

Shareholders of more than two dozen companies bought by the group of firms between 2003 and 2007 claim that they have lost billions of dollars because of conspiracies that deflated prices before takeovers. Instances cited by the complainants include the $32.1 billion leveraged buyout in 2006 of the hospital company HCA. Complaints say that HCA, which was bought by Bain and KKR, saw a curious buying event where some firms that had “strong interest” in HCA suddenly decided not to bid, and other firms that had prepared to outbid Bain and KKR by $1.6 billion, strangely, decided to “stand down.”

On Friday, U.S. District Judge Edward Harrington, after criticizing the redacted release of the complaint, said that the firms should file a second redacted complaint and justify why some details have been kept secret. It is then in the hands of the court whether to accept the second redacted version of the complaint or release the entire complaint to the public.

A New York Times spokeswoman, Abbe Serphos said NYT was pleased that the court “recognized the importance of public access to judicial documents and properly placed on defendants the burden of justifying any sealing.”

Mitt Romney, a founder of Bain was not named in the complaint and lawyers for the private equity firms said his possible interest in Bain funds justified not releasing the full complaint, as this being election year.

The case is Dahl et al v. Bain Capital Partners LLC et al, U.S. District Court, District of Massachusetts, No. 07-12388.