Alison Frankel

Late Tuesday, U.S. District Judge Barbara Jones of Manhattan federal court denied Bank of America’s motion to disqualify Quinn Emanuel Urquhart & Sullivan from representing AIG in its $10 billion mortgage-backed securities case against BofA, Merrill, and other bank subsidiaries. BofA’s lawyers at Munger, Tolles & Olson had argued that a former Munger partner, Marc Becker, acquired confidential information about Merrill’s MBS litigation strategy before departing to join Quinn Emanuel in 2008, then proceeded to work on AIG’s case against BofA and Merrill. The judge faulted Quinn’s screening process for failing to identify Becker’s potential conflict. But she said Becker had performed only non-substantive editorial work on AIG’s complaint and remand motion, didn’t share any confidences, and took steps to segregate himself from the AIG case as soon as he was reminded of his previous work for Merrill Lynch and its former mortgage unit. “There is no meaningful showing here that the trial process will be tainted,” Jones wrote. “The court finds that it would be unduly prejudicial to disqualify Quinn.”

But what about Marc Becker?

In October, after learning that Munger Tolles had raised the issue of his previous work for Merrill Lynch and First Franklin Financial, Becker resigned from Quinn Emanuel’s London office. In a Nov. 3 declaration, Becker said that he hadn’t remembered working for First Franklin when he spent a total of 5.8 hours reviewing the two AIG documents. “Had I remembered it, I never would have had anything to do with the [BofA] action,” he wrote. “None of what I did during those 5.8 hours on the [BofA] action was in any way focused on, or specific to, First Franklin or Merrill Lynch. I did not use or disclose any confidential information of First Franklin or Merrill Lynch. In fact, I did not at that time, and do not now, recall any confidential information of First Franklin or Merrill Lynch.” Becker asserted that Munger’s account of his work for Merrill — which cast him as a lead partner in Merrill and First Franklin’s MBS defense strategizing — didn’t jibe with his refreshed recollection of a “far more limited” role.

Becker remained at Quinn Emanuel for a month after Munger first alerted the firm of his potential conflict. During that time, according to his declaration, he met with Quinn’s outside counsel, Gregory Joseph, to discuss his work for Merrill, without any Quinn partners present. “Thus, even if I had recalled any confidential information regarding Merrill Lynch or First Franklin, which I did not, Quinn Emanuel would not have been exposed to it,” he wrote. “I understand that defendants have suggested that I was aware of and deliberately ignored the existence of a conflict of interest arising from my work on the First Franklin matter. That is totally untrue.”

Nevertheless, on Oct. 19, Becker resigned from Quinn Emanuel. “The firm and I agreed to take this step because … we wanted to do everything in our power to eliminate any possible basis for disqualification,” Becker wrote. Quinn Emanuel name partner John Quinn had told Munger Tolles in an email when he first learned of the potential Becker conflict that Becker might have to resign if Munger pressed for Quinn’s disqualification. So Becker’s declaration includes a poignant paragraph hinting at his sense of betrayal: “I am deeply disappointed that my former partners at [Munger] — with whom I worked as a trusted and respected colleague and partner for almost 20 years — would contend that I improperly shared client confidences. I do not believe that they genuinely believe that I did or ever would do so. But by having claimed that there is a risk of future disclosure of confidences by me, they precipitated my departure from Quinn Emanuel, and have caused me great professional and personal hardship.”

Becker said in the declaration that he was planning to start up a solo practice as a solicitor in London, but hoped to be able to return to Quinn Emanuel when the conflict question was resolved. Quinn Emanuel, in its response to the disqualification motion, reiterated that Becker’s resignation was voluntary. “This step was not taken because of any doubt as to the fact that no confidences were or would be shared, or as to the efficacy of the firm’s screen,” the firm’s response said.

In fact, according to Jones’s decision denying the disqualification motion, Quinn Emanuel asked the judge to rule that the firm’s ethical wall between Becker and the AIG case is sufficient to permit Becker to return to the firm. Unfortunately for Becker, the judge said she “declines to do so.”

That would appear to leave Becker in limbo, unless BofA agrees he’s adequately walled off from the case against it. Quinn Emanuel, after all, is engaged in other cases against BofA and Merrill Lynch — most notably the Federal Housing Finance Agency’s suits — and the firm doesn’t want to face another disqualification motion based on Becker’s previous work for Merrill.

In a brief phone interview, Becker told me he’s pleased that Jones found he behaved ethically. “I am deeply gratified that the court agreed I did not share any client confidences,” he said, adding, “I believe this motion was a tactic move to [by Munger] to eliminate an adversary that they would prefer not to face.” Becker declined any additional comment, but it’s well-known that Munger Tolles and Quinn Emanuel have butted heads in two big trials in the last year: star bond-trader Jeffrey Gundlach’s dispute with his former employer TCW, which resulted in a split verdict in September; and Rambus’s antitrust trial against Micron and Hynix, in which a jury last month cleared Quinn client Micron.

Quinn Emanuel declined comment on the Becker matter. Munger partner Marc Dworsky didn’t respond to Reuters’ request for comment.

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Monday was (another) dreadful day for Bank of America. The bank’s shares closed at a two-year low, thanks in part to AIG’s double whammy: a $10 billion fraud suit against BofA and the insurer’s simultaneous motion to intervene in opposition to BofA’s proposed $8.5 billion settlement with Countrywide mortgage-backed securities noteholders. Bank of America and Countrywide’s securitization trustee, Bank of New York Mellon, thought the $8.5 billion deal would put their MBS woes behind them. Instead the proposed settlement seems to have made the two banks into bigger targets than they were before reaching an agreement with 22 big MBS investors.

There’s plenty of reason for BofA to worry about the AIG fraud suit. First off, the New York state court complaint was filed by Quinn Emanuel Urquhart & Sullivan, a familiar opponent for Bank of America. Quinn is counsel to the bond insurer MBIA in its MBS litigation against Countrywide, in which New York state supreme court judge Eileen Bransten has consistently sided with MBIA and Quinn Emanuel. (Among other crucial rulings, Judge Bransten rejected Bank of America’s preliminary argument that it’s not liable for Countrywide’s missteps.) Quinn also represents Fannie Mae and Freddie Mac, which forced Bank of America into a $2.8 billion settlement of MBS claims in January, and Allstate, which filed a $700 million MBS case against Countrywide in December. Different Quinn Emanuel lawyers are involved in the various BofA and Countrywide cases, but the firm isn’t starting from scratch.

The AIG fraud complaint is also a canny document. The suit lumps together allegations against Countrywide, Merrill Lynch, and BofA, painting all of them with the same tarry brush even though Countrywide and Merrill Lynch committed a good chunk of the alleged wrongdoing before they became part of BofA. Quinn includes public record information about their manifestly-deficient underwriting practices, but has brought the case as a fraud suit — not a contract case accusing BofA, Countrywide, and Merrill of breaching the representations and warranties on the mortgage loans underlying the securitizations AIG invested in. That way, AIG doesn’t have to show that it controls 25 percent of the voting rights, the threshold for standing in a securitization contract case. But under the causes of action the complaint asserts — state-law claims and federal claims under the Securities Act of 1933 — Quinn Emanuel doesn’t have to show that BofA, Countrywide, and Merrill acted with fraudulent intent.

Quinn partners Michael Carlinsky and Philippe Selendy, who signed the AIG complaint, also undoubtedly know that even if Bank of America’s $8.5 billion settlement is approved by Manhattan state supreme court judge Barbara Kapnick, their fraud case won’t be wiped out. BofA’s deal with the 22 MBS noteholders who negotiated the proposed settlement is expressly limited to investors’ breach-of-warranty claims. It doesn’t resolve securities fraud claims; in fact, three of the investors backing the proposed settlement have since sued Countrywide for fraud.

That’s why it’s so interesting that AIG filed its motion to intervene in the proposed settlement on the same day that it filed the fraud suit. The intervention petition, filed not by Quinn Emanuel but by Reilly Pozner, raises the now-familiar assertions that investors aren’t getting a big enough cash payout and that Bank of New York Mellon had a conflict in negotiating the deal because BofA agreed to indemnify BNY Mellon in a side-letter. But AIG is the first objector also to take aim at Gibbs & Bruns, the law firm that’s counsel to the 22 institutional investors that negotiated the proposed settlement.

“The genesis of the proposed settlement agreement appears to be an exclusive group of investors and their outside counsel, who without the participation of the other beneficiaries and with the blessing and cooperation of [BNY Mellon] as trustee, engaged in clandestine settlement negotiations with [BofA],” the petition said. “These discussions culminated in a settlement proposal that, if approved, would result in thousands of affected beneficiaries receiving a small fraction of their losses, while the inside institutional investors’ outside counsel would be paid $85 million — not from her clients but from [BofA].” That fee arrangement, AIG argues, means Gibbs & Bruns had an $85 million conflict in reaching a deal with Bank of America. (Gibbs partner Kathy Patrick told me the fee deal is “very typical in bondholder cases.” She said her clients, all experienced litigants, insisted that Bank of America pay Gibbs & Bruns fees rather than take money out of the settlement pool to pay the lawyers. “It’s in the best interests of investors,” Patrick said.)

So where, you may be wondering, is that ray of hope I mentioned in the headline? It’s in a two-page order Judge Kapnick entered in the MBS settlement docket Monday, after presiding over a mobbed hearing Friday. The judge agreed that her original order calling for investors to register objections by August 30 had to be modified because noteholders may not know by then whether they like the proposed deal. She ruled that any investor who wants a say in the case need only file a written notice of intervention, not a formal objection. But she rejected all of the intervenors’ demands for expedited discovery and left in place the August 30 deadline for investors to file intervention notices. Settlement proponents claimed that as a win.

“The court acted swiftly to address an issue that needed to be addressed,” said Patrick of Gibbs & Bruns. “We’re pleased that she indicated the case is going to move rapidly and that she left the existing deadline in place.”

Patrick said that deal supporters were encouraged by Friday’s hearing, at which Judge Kapnick seemed to be well-versed in the filings and eager to move things along. A transcript suggests that Gibbs & Bruns; BofA counsel from Wachtell, Lipton, Rosen & Katz; and BNY Mellon lawyers from Mayer Brown took a smart course when they filed the case as an Article 77 trust proceeding, under which the court is supposed to pay deference to the trustee unless objectors can show the trustee acted unreasonably or breached its duty.

“That’s the proceeding they brought,” Kapnick said, after noting that she had to look up the obscure Article 77 in the New York code. “It’s not, it’s not a class action. There aren’t provisions in there to opt out that you are talking about. That’s not what this is. If you started it, maybe that’s what you would have done, but they started it and that’s what they did. I have to work, at least now, within the confines of the proceeding that is before me.” (A lawyer from the New York Attorney General’s office was at the hearing, according to the transcript, but didn’t remind Judge Kapnick that the case now has additional fraud and Martin Act implications, thanks to the AG’s counterclaims against BNY Mellon.)

Patrick told me she believes the judge will look hard at AIG’s objection, given that it was filed on the same day as the insurers’ fraud suit against BofA. “There’s a serious question about whether AIG is acting to serve other litigation goals,” Patrick said.

And on a day when all else is bleak in BofA land, one judge offering a bit of scrutiny to allegations that harm the bank looks like sunshine.

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