Carlyle co-founder David Rubenstein

Carlyle refuses to settle its role in private equity's big collusion case, but it should.

By Dan Primack
August 18, 2014

The Carlyle Group CG is scheduled to defend itself this fall against allegations that it conspired with other large private equity firms to rig bids of large acquisitions prior to the financial crisis. Carlyle shareholders should be praying for a quick settlement.

To be sure, I’m personally rooting for a trial. Lots of juicy information could emerge and there’s a great crab-shack next to the Boston courthouse.

But there are very good reasons for why six other private equity firms already have settled to the tune of nearly half a billion dollars. And, by holding out, Carlyle is increasing its exposure to a level that could become material.

The plaintiffs allege that the defendants conspired to keep prices low on eight take-private transactions, and are requesting $11.97 billion in damages. As the only remaining defendant, Carlyle could be on the hook for all of it. Moreover, damages in antitrust cases like this one are trebled (i.e., tripled). In other words, a worst-case scenario could see Carlyle being forced to pay a whopping $36 billion.

For context, Carlyle only had $37.5 billion in total assets as of June 30. Its market cap is around $10.7 billion.

Were Carlyle to lose in court, most of its penalty — no matter the size — likely would be paid by a combination of insurance and limited partners in its private equity funds. But some also would come off of the firm’s balance sheet. This was immaterial to settling firms like The Blackstone Group BX and Kohlberg Kravis Roberts & Co. KKR , but that’s because they each paid out just $100 million or so.

So why is Carlyle assuming so much risk?

Sources close to the situation say that the strategy is bring driven by the firm’s founders — David Rubenstein, Dan D’Aniello and Bill Conway — rather than by its legal team. They believe that the allegations are absurd, and that any settlement would be a tacit admission of wrongdoing.

This is all well and good if Carlyle were still a privately-held business, but shouldn’t a publicly-traded company show a bit more prudence? Carlyle’s peers all came to a different risk assessment, and apparently were willing to take the PR arrows. Maybe Carlyle is simply trying to illustrate how private equity firms can’t even come to consensus on how to defend a lawsuit, let alone rig bids on hundreds of millions of dollars worth of buyouts…

The plaintiffs still must clear a couple large procedural hurdles prior to trial, including getting themselves certified as a “class.” If they stumble, then Carlyle will have won its high-stakes games of poker. But if they win — like the other private equity firms expect — then Carlyle either will be forced to settle for more than any of the other defendants, or take its chances in front of a Boston jury. And shareholders will be left wondering why Carlyle allowed itself to be put in such a pricey position.

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