- Legal papers show that years before Sen. Elizabeth Warren gained a national reputation as a zealous consumer advocate, a reputation that's now at the center of her bid for the White House, she defended those principles behind closed doors in the face of profitable incentives to look the other way.
- The 2006 case provides a more straightforward example of Warren in action than other past legal work, because the court records contain documentation of Warren's thought process as she decided whether to take the job.
Democratic presidential contender Sen. Elizabeth Warren refused to take a lucrative legal job in 2006 after a consumer advocacy group raised concerns about the work, earning the fury of an attorney who had sought to hire her, court documents show.
The records from more than a decade ago, connected to a lawsuit against two credit reporting giants, shed new light on Warren's motivations for taking on private legal work amid criticism from fellow contenders who have sought to cast the Massachusetts progressive as a hired gun for big business.
The legal papers reviewed by CNBC show that years before Warren gained a national reputation as a zealous consumer advocate, a reputation that's now at the center of her bid for the White House, she refused to take on an $850 per hour case because she didn't believe it would advance principles consistent with her beliefs.
The documents, which have not been previously reported, provide new context about Warren's legal consulting work. That work has come under scrutiny in recent weeks as opponents including South Bend, Indiana, Mayor Pete Buttigieg have accused Warren of hypocrisy for running on a populist message after years of taking on highly compensated work for corporate clients.
Warren has struggled to defend her record working for companies like Dow Chemical and Travelers Insurance. Part of the difficulty she has faced stems from the fact that the cases tend to involve arcane aspects of bankruptcy law, rather than simple narratives about taking on powerful interests in high-stakes court battles.
For instance, after a 1990s memo surfaced this month revealing that Warren supported a real estate development firm seeking to avoid cleaning up a polluted rail yard, the Warren campaign said she was standing up for a principle of bankruptcy law unrelated to environmental regulations more generally. Warren's argument, they said, was over who would clean up the pollution, not whether it would be cleaned.
A 2008 asbestos case that was used against Warren in her 2012 bid for Senate was similarly confusing, with fact-checkers noting that Warren was on the side of asbestos victims even while representing an asbestos manufacturer's insurance company.
But the 2006 case against credit reporting agencies TransUnion and Equifax provides a more straightforward example of Warren in action, because the court records, filed in U.S. District Court in California, contain documentation of Warren's thought process as she decided whether to take the job.
The records show that Warren originally seemed interested in the case, but backed off after weighing the concerns of a nonprofit dedicated to promoting the economic security of low-income people.
That decision came despite the fact that the case, by all appearances, would have been among the most high paying of her career. Ultimately, some of the concerns raised by the National Consumer Law Center were supported by a ruling from a federal court in California.
Under pressure from Buttigieg, Warren recently released compensation records dating to the 1980s revealing that she earned nearly $2 million from her legal work while she was also a law professor at Harvard and other law schools. Buttigieg in turn released the names of his campaign bundlers and the clients for whom he worked while a management consultant at McKinsey & Co.
Warren is in third place in national polls, behind former Vice President Joe Biden and Sen. Bernie Sanders, I-Vt. Buttigieg, in fourth nationally, recently surpassed Warren in polls in the early contest states of Iowa and New Hampshire.
The court records show that Warren was sought out by the California attorney Lee Sherman in 2006.
Sherman attempted to hire her as an expert witness in a class-action case against TransUnion and Equifax over their alleged failure to properly update the reports of individuals who had their debts discharged via bankruptcy.
Warren, then at Harvard, at first appeared interested in the job, saying the settlement Sherman sought was "promising," and noting that she charged $850 per hour, or about $1,080 in 2018 dollars.
But she then pulled out of the potentially profitable arrangement after speaking with employees of the National Consumer Law Center, a consumer advocacy group that defends the poor and other disadvantaged people. The NCLC had expressed reservations about the settlement, according to email chains and affidavits included in the records.
"I had a call from friends working with the National Consumer Law Center," Warren wrote to Sherman in one September 2006 email. "Their concerns about the settlement, along with the high regard I have for the NCLC, makes me too uneasy to commit to you as an expert."
While the companies appeared to be in "flagrant violation of the law" and she supported efforts to make them change their practices, she wrote that she could not be "as supportive of the settlement as you would need."
Notably, the case would have likely been among the most well-paid work of Warren's career, based on public information. Court documents that have previously been reported on show that Warren charged $675 per hour for cases she worked on in the early 2000s, or about $950 in 2018 dollars.
The settlement proposal called for TransUnion and Equifax to update the way they handled the credit reports of individuals who had filed for bankruptcy, and would grant some affected individuals up to $450 in economic relief, in exchange for giving the ratings agencies a sweeping grant of immunity from further lawsuits. It suggested attorney's fees of $5,485,000.
In one of the emails to Warren, Sherman wrote that he believed the settlement was "a good and fair one that will ultimately be approved by the Court."
A federal judge refused to approve the settlement in May 2007, finding that it would leave millions of alleged TransUnion and Equifax victims with no compensation while enriching the attorneys working on the case.
District Judge David Carter said the settlement presented an "unforgiving whipsaw" that would free TransUnion and Equifax of liability while "granting nothing of monetary value in return."
Carter wrote that the $5.4 million in attorney's fees Sherman and his team asked for was "so grossly out of proportion to class members' probable aggregate recovery as to suggest a strong possibility of impropriety."
Representatives for Sherman, TransUnion and Equifax did not respond to requests for comment.
"Elizabeth worked with NCLC for years, and once they laid out why they were opposed to this settlement, she declined to take the case," Chris Hayden, a Warren spokesperson, said in a statement.
The email records provide a behind-the-scenes look at Warren's negotiating style, showing her to be a fierce advocate for her own independence.
After Sherman explained in an email that he believed he had hired Warren and that he did not want her to work for the NCLC, Warren wrote that she was "quite surprised that you believe you have retained me."
"I have no present plans to serve as an expert for NCLC, but I am free to do so," Warren added. "If I decide that I want to serve as their expert, then I will do so."
Sherman responded that if she attempted to serve as an expert for the NCLC, that he would seek to disqualify her from participating in the case. He noted that "I do not make this statement as a threat."
"Don't threaten me," Warren responded. "You called to ask if I would serve as your expert. Asking the question does not give you any claim on me. I will offer expert reports when I think they are appropriate. You cannot strong-arm me either into writing such a report for you or withholding one from someone else."
Sherman told Warren that he did not intend his message as a threat, but instead wanted to be "on record with our position and intentions on this issue, which I now am."
Warren responded curtly several hours later: "And I am on record with my position and intentions."
A filing Sherman submitted more than a month later noted that the two had no more contact after that email. In November 2006, Warren wrote in an affidavit that she never agreed to be Sherman's expert witness. Warren continued to do corporate legal work after this case.