The big revelation in Anton Valukas‘s report on Lehman Brothers’ failure in March 2010 was the bank’s use of an accounting trick called Repo 105, in which Lehman used the cash it received from short-term sales of highly liquid securities to pay down its liabilities. Valukas’s examiner’s report said Lehman was apparently using Repo 105 transactions at the end of every quarter to make it seem as though the bank was less leveraged than it actually was. He advised that the Lehman estate had, at least, a “colorable claim” against Lehman’s auditor, Ernst & Young.
Last Thursday, U.S. District Judge Shira Scheindlin of Manhattan refused to reconsider her previous decision to block American terror victims suing the Bank of China from deposing a former Israeli counterterrorism agent. The former operative, Uzi Shaya, was expected to testify that Israel counterterrorism experts met with Chinese government officials in April 2005 to warn them that Hamas and Palestine Islamic Jihad were using Bank of China accounts to launder money and finance attacks on civilians in Israel. Bank of China has denied any knowledge of those supposed warnings, and without a live witness to confirm what happened at the 2005 meetings, victims of the attacks will have a much tougher time proving their case against the Chinese bank.
Osama Hamdan, the Hamas spokesman who recently refused to retract his claims that Jews kill Christians to bake their blood into matzoh, was an account holder at Arab Bank from 1998 to 2005. His account number was listed on a website associated with Hamas, which the U.S. Treasury Department first designated as a foreign terrorist organization in 1997, and several transfers processed through Hamdan’s account listed Hamas as a beneficiary. During his last two years as an Arab Bank account holder, Hamdan himself was a “specially designated global terrorist,” according to the Treasury Department, which added him and several other Hamas leaders to the rolls in 2003.
If Allergan’s insider trading and disclosure suit against the hostile bidders Valeant and Pershing Square is a bluff, Pershing just called it.
Judge Richard Posner of the U.S. 7th Circuit Court of Appeals has confessed to reading the occasional legal thriller, but he’s no fan of the estate of Arthur Conan Doyle, the author who created the indelible detective Sherlock Holmes.
A few days after the Canadian pharmaceutical company Valeant announced that it had teamed up with the activist investor William Ackman to bid for Botox maker Allergan, Wachtell, Lipton, Rosen & Katz wrote a teeth-gnashing client alert about the new threat to corporate targets from the unholy alliance of a strategic bidder with an activist hedge fund. Commentators were already raising questions about whether Ackman and Valeant had engaged in insider trading, because Ackman secretly accumulated Allergan shares based on his knowledge of Valeant’s imminent takeover bid. But in that early memo, Wachtell didn’t claim Valeant and Ackman had broken insider trading rules. Instead, the firm bemoaned Valeant and Ackman’s “conspicuously structured” stratagem that “took express pains to sidestep” the Williams Act’s bar on trading in advance of a tender offer.
Here’s a new twist on an old story. A securities class action firm in the early stages of a fraud case tracks down a former employee of the defendant. The former employee dishes dirt about the company to an investigator, a boon for plaintiffs’ lawyers who have to draft a detailed complaint about corporate wrongdoing without the benefit of discovery from the defendant. The company protests, asserting that former employee was under a confidentiality agreement.
There’s been a lot of talk in the Argentine debt crisis about whether U.S. courts have overstepped their bounds. At the end of 2011, you’ll recall, U.S. District Judge Thomas Griesa of Manhattan ruled that the pari passu, or equal treatment, clause of Argentina’s bond contracts entitles hedge fund holdouts that refused to participate in debt restructurings to payments alongside the more obliging exchange debtholders. Since then, Argentina and its allies, including the U.S. Justice Department, have argued that Griesa’s interpretation of the pari passu clause — which was subsequently affirmed by the 2nd U.S. Court of Appeals and left intact by the U.S. Supreme Court last month — gives too much power to creditors and undermines sovereigns.
The 2nd Circuit U.S. Court of Appeals really pummeled the pharmaceutical manufacturing company Gnosis in an opinion Tuesday. Judges Rosemary Pooler, Reena Raggi and Richard Wesley affirmed that Gnosis must pay Merck more than $2.5 million in damages and attorneys’ fees for violating the Lanham Act with deceptive marketing about its folic acid product Extrafolate.
David Boies of Boies, Schiller & Flexner — the superstar litigator best known as the defender of same-sex marriage, Al Gore, securities class actions and Napster — is ready for a different sort of a challenge: He wants to be a products liability class action lawyer.