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As a result of the financial crisis, we are currently representing in class and individual actions more than 70 U.S. financial institutions alleged to have collectively underwritten billions of dollars of securities issued by Lehman Brothers. We are also representing the underwriters of securities issued by RBS, HealthSouth and C-BASS, and, as issuers, ING, IMAX, Countrywide, Citigroup, sanofi-aventis, Pall Corporation and LG Display in securities litigation. Furthermore, the firm is counsel in a variety of complex disputes related to credit default swaps, CDOs, mortgage-backed securities and subprime matters.
In the area of white-collar defense and securities enforcement, we are currently representing Bank of America in major litigation and investigations arising out of its acquisition of Merrill Lynch and the payment by Merrill Lynch of employee bonuses for 2008; BNP Paribas, HSBC, The Bank of New York Mellon and other financial institutions in investigations and litigations arising from the Bernard L. Madoff fraud; and several major investment banks and hedge funds in non-public federal and state investigations into various trading, valuation and reporting issues arising from the subprime crisis, the collapse of Bear Stearns and Lehman Brothers and the turmoil in the credit default swap market.
Dec 02, 2011
On December 2, over 40 banks from throughout the world -- nearly every financial institution that was alleged to have underwritten securities issued by Lehman Brothers in the 18 months prior to its collapse -- agreed to settle a class action pending in New York federal court arising out of the Lehman offerings. The firm represented all of those banks. The settlement came only after two years of complex motion practice that, this summer, led to a narrowing of the asserted claims, and months of negotiations that, at the end stages, were aided by a mediator (a retired judge). The settlement posed unusually complex issues, including that Lehman Brothers was the lead underwriter of every offering at issue (and, since it is in a bankruptcy proceeding, was not a defendant in the cases), and because the syndicates in each of the dozen offerings at issue involved different banks that took place at different times. Each bank accordingly made an independent decision whether or not to participate in the settlement, and their doing so was preceded by a lengthy period in which each came to terms with how to divide their proportionate responsibility of an eventual settlement. In many similar high profile cases (e.g., Enron, Worldcom), the banks have been unable to maintain a united front, engaged in separate negotiations, which likely led to settlements being more expensive to the banks as a whole. This is the largest group the firm has ever represented in a securities class action, and the largest settlement ($417 million) it has handled.
Among the many clients were: Bank of America, BBVA, BNY Mellon, Caja Madrid, Citigroup, HSBC, ING, Morgan Stanley, Santander, Suntrust, UBS and Wells Fargo. The settlement is subject to customary conditions, including court approval. Approximately 12 "opt-out" actions are pending, which Cleary Gottlieb is now addressing.
Dec 15, 2011
On Thursday, December 15, Senior District Judge Samuel Conti of the United States District Court for the Northern District of California dismissed with prejudice claims brought against HSBC Bank USA, N.A. by Wailea Fund L.P., a counterparty to an ISDA-based swap agreement with HSBC that referenced the performance of a Madoff feeder fund. Wailea filed its complaint on July 19, 2011, seeking rescission of the swap agreement and return of approximately $16 million in upfront premium payments made to HSBC in connection with the swap. Wailea claimed a right to rescission on various grounds, including mutual mistake, unilateral mistake, innocent misrepresentation, failure of condition, and violations of the California securities laws.
Following oral argument on December 9, the Court dismissed all of Wailea's claims, holding that, under the plain language of the swap agreement, Wailea had assumed the risk of mistake as to the performance of the Madoff feeder fund as a matter of law, could not claim reasonable reliance on any representations made by HSBC as a matter of law, failed to and could not as a matter of law plead any condition precedent to contract formation, and could not point to any statements or omissions by HSBC that were actionable under the California securities laws.
Jul 01, 2011
On July 1, 2011, Lehman Brothers and its key creditors—including several clients of Cleary Gottlieb—reached an agreement resolving various disputes concerning Lehman's chapter 11 plan. Cleary Gottlieb played a lead role in the negotiation and finalization of plan settlement documentation as counsel to Goldman Sachs and other creditors holding substantial derivative claims, having served as the principal drafter of a competing chapter 11 plan for the Lehman debtors that was filed by 23 major financial institutions including Goldman Sachs and other clients. Cleary Gottlieb also played an instrumental role in negotiating a framework for resolving nearly $10 billion in derivatives claims. The competing plan, as well as the framework for derivative claims, was a significant catalyst for resolving various disputes with the Lehman estates that led to the filing of a consensual chapter 11 plan by Lehman Brothers supported by more than 30 creditors holding in excess of $100 billion in claims.
Nov 29, 2011
Cleary Gottlieb successfully settled a class action brought under the Securities Act of 1933 on behalf of its clients Fleet Boston Financial Corporation (now Bank of America, N.A.) and individual defendants that arose out of the Argentine economic crisis of 2001. Plaintiffs argued that Fleet’s loan loss reserves were too low because it should have seen in March 2001, when it acquired Summit Bancorp in a $7 billion stock-for-stock merger, that Argentina would suffer an economic upheaval nearly a year later. As a result, the plaintiffs (former Summit shareholders who exchanged their shares for Fleet shares in the merger) contended that Fleet paid too little in the merger, and asserted claims under Section 11 seeking more than a billion dollars in damages. Extensive motion practice spanning several years narrowed the case substantially. After significant discovery, including over two dozen depositions in the United States and Argentina, confirmed that Fleet had no more insight into the future of Argentina’s economy than anyone else and that plaintiffs’ claims had no factual basis, Fleet was prepared to move for summary judgment.
Throughout the years, plaintiffs struggled to identify and maintain adequate class representatives, with the Court eventually demoting the class to “conditionally certified.” Plaintiffs moved to appoint five new class representatives, which motion was sub judice from June 2009 until the parties agreed to mediation. On March 3, 2011, the parties settled the case with the help of mediator Judge Nicholas Politan (ret.) for $5.5 million. On November 29, 2011, Chief Judge Brown of the U.S. District Court for the District of New Jersey finally approved the settlement, plan of allocation, certification of the settlement class, award of attorneys’ fees, and reimbursement of a class representative’s expenses.
Sep 19, 2011
On Monday, September 19, Chief U.S. District Judge Loretta Preska granted leave to appeal and as a matter of first impression held that the Bankruptcy Court did not have "core" jurisdiction to adjudicate 41 lawsuits, claiming over $3 billion in redemption payments, brought by liquidators of the Fairfield Madoff feeder funds in a Chapter 15 Case against over two hundred defendants including seventeen financial institutions represented by Cleary Gottlieb. The Bankruptcy Court had denied defendants' motion to remand a) all of the cases for lack of subject matter jurisdiction or on the basis of abstention and b) four of the cases on the basis of untimely removals.
Following extensive oral argument, the District Court granted Cleary Gottlieb's motion for leave to appeal and reversed the Bankruptcy Court's decision. Judge Preska remanded to state court four cases (two of which involved Cleary Gottlieb clients) on the basis of untimely removal and the rest of the cases to the Bankruptcy Court to make certain factual findings as a predicate for a mandatory abstention determination that would return those cases to the state forum where they were commenced. The District Court agreed with defendants' arguments that (i) the Bankruptcy Court lacked "core" jurisdiction to decide these cases both as a statutory and constitutional matter, (ii) the Bankruptcy Court misapplied the mandatory abstention standard and (iii) the Bankruptcy Court improperly extended the removal period for certain of the cases after the removal period had expired.
Aug 26, 2011
On August 26 the California Public Employees’ Retirement System (“CalPERS”) dismissed with prejudice its claims pending in California state court for negligent misrepresentation against Cleary Gottlieb’s clients Fitch and Fitch Ratings. CalPERS claimed over $1 billion in losses in AAA rated investments in litigation brought in California against Fitch and the other two major rating agencies. CalPERS’s agreement to dismiss came following the filing of Fitch’s brief in support of its motion under California’s anti-SLAPP statute (a statute requiring a showing of merit in suits involving speech on matters of public concern and providing for the award of attorney’s fees to a successful movant). Under that agreement, Fitch is making no payment, waiving any claim to attorney’s fees and providing certain discovery that it has provided as a third-party witness in a related case. CalPERS’s case proceeds against the two other rating agencies.
Oct 13, 2011
On October 8, U.S. District Judge John Walter in Los Angeles approved a settlement between Cleary Gottlieb's client Crédit Lyonnais (along with Consortium de Réalisation (CDR) (the French state-owned defeasance entity that assumed certain of Crédit Lyonnais's liabilities in 2000) and AIG Retirement Services (AIGRS), in a litigation relating to the assets of Executive Life Insurance Company (ELIC), an insurance company that the California Insurance Commissioner had seized in 1991. In 1992, Altus Finance, then an investment banking subsidiary of Crédit Lyonnais that was later taken over by CDR as part of a rehabilitation of the group, purchased the high yield bonds of ELIC, and helped to assemble an investor group that ultimately acquired ELIC's insurance company assets in 1993. As part of the investor group's acquisition, AIGRS purchased a one-third interest in the ELIC insurance company assets.
After Crédit Lyonnais settled federal criminal and regulatory charges, as well as accusations made by the California Insurance Commissioner, stemming from allegations based on restrictions at the time on a bank's ownership of an interest in an insurance company, AIGRS sued Crédit Lyonnais and CDR, among others, alleging that it had been defrauded into not bidding for all of the insurance assets in 1993. AIGRS sought $1 billion in damages. In last week's settlement, concluded on the eve of trial, AIGRS received $150 million.
This settlement should conclude the final chapter in Cleary Gottlieb's 12 year representation of the bank in this matter.
Nov 03, 2011
Cleary Gottlieb has successfully defended the Republic of Iraq's sovereign immunity in the English Court of Appeal, in relation to a $35 million claim by a Saddam era creditor.
The claim arose in the context of the liquidation of Rafidain Bank. SerVaas Incorporated, a contractual counterparty of Iraq, sought to intercept monies due to Iraq in the liquidation and to enforce a judgment against Iraq's entitlement to those monies in the English courts. SerVaas applied for a Third Party Debt Order over the monies due to Iraq and an injunction restraining the liquidators from making payments to Iraq.
On November 3, the Court of Appeal affirmed the judgment of Mr. Justice Arnold in the English High Court to the effect that the monies were protected by Iraq's sovereign immunity. SerVaas has been given permission to appeal to the Supreme Court.
May 31, 2011
Cleary Gottlieb won a victory for Alpha Natural Resources in the Delaware Court of Chancery, where on May 31, 2011, Vice Chancellor Strine denied the plaintiffs' motion to enjoin the merger between Alpha and Massey Energy Company. The plaintiffs, who had previously brought derivative claims against certain Massey directors and officers, moved for a preliminary injunction after amending their complaint to assert claims for breach of fiduciary duty against Massey directors who had approved the merger. Contending that Alpha had not paid the full economic value of the derivative claims, plaintiffs sought to prevent the merger pending a trial on the derivative claims or in the alternative, for the court to create a "litigation trust" that, post closing of the merger, would hold the derivative claims for the benefit of the current Massey shareholders. In an 80 page opinion, the court denied the plaintiffs' request in all respects. Alpha and Massey stockholders approved the merger transaction at special meetings today.
Feb 03, 2010
Cleary Gottlieb has successfully defended long-time client Agfa-Gevaert N.V. and its affiliated companies against numerous claims, amounting to over €265 million, brought before an ICC arbitration panel by AgfaPhoto Holding GmbH. In 2004, Agfa-Gevaert sold its former consumer imaging division to APH, a vehicle organized by the former consumer imaging management together with a group of investors. Approximately seven months after the purchase was completed, the spun-off business became insolvent. APH accused Agfa-Gevaert and its management of defrauding APH regarding the financial strength of the business and alleged that Agfa-Gevaert had breached numerous contractual obligations and intentionally caused the insolvency of the newly spun-off business.
In a final award issued December 17, 2009, the arbitral tribunal rejected all of APH’s claims, and fully exonerated Agfa-Gevaert. The tribunal also ordered APH to pay Agfa-Gevaert’s fees and expenses of approximately €6 million.
This is the second significant arbitration victory won by Cleary Gottlieb on behalf of Agfa-Gevaert in recent months. In September of last year, in a dispute over the termination of a trademark license agreement, the same arbitral tribunal rejected a damages model presented by APH asserting damages of over €260 million. The tribunal ruled that Agfa-Gevaert prevailed on more than 95% of that arbitration and awarded Agfa-Gevaert approximately €3 million in legal fees.
May 24, 2010
Cleary Gottlieb won a fundamental defensive victory for SKY Italia in connection with Conto TV’s suit brought against SKY and Lega Nazionale Professionisti (the association of Italian football teams) (LNP) regarding live satellite broadcasting rights for the Italian Serie A football league for the seasons 2010-2011 and 2011-2012 (together valued at € 1.14 billion).
Conto TV sued both SKY and LNP, claiming that LNP's call for tenders relating to one single all-inclusive package for Serie A satellite broadcasting rights could have favored SKY and that, therefore, the Tribunal of Milan should suspend the contract between SKY and LNP, as well as order LNP to set up a new competitive procedure for the assignment of different Serie A packages. On behalf of SKY Italia, Cleary Gottlieb argued, among other things, that Conto TV's arguments were seriously flawed, based on its improper definition of the relevant market, and that there was no insurmountable technical or financial barrier which could justify Conto TV's decision not to compete with SKY for the assignment of the rights at stake.
On May 24, upholding SKY and LNP's defenses, the Tribunal of Milan issued an order rejecting all of Conto TV's requests. The court acknowledged that Conto TV had wrongly depicted the existence of a separate market for satellite provision of pay-tv services, whereas it was manifest that SKY faced the vigorous competition of other operators in a wider pay-tv market including all television platforms (which includes, chiefly, digital terrestrial television). Moreover, according to the Tribunal of Milan, LNP had offered various other appealing TV content in compliance with national rules on the offering of football broadcasting rights, and Conto TV had not suffered any competitive disadvantages in the related call for tenders. Thus, the Court ordered that Conto TV bear all costs of the proceedings, including attorneys’ fees of the other parties.
As highlighted by LNP and the Presidents of various Italian Serie A football clubs in the previous weeks, this litigation had put at risk the entire Italian football system, since - had the Court decided to uphold Conto TV's requests - many clubs would have lacked the necessary financial resources to enroll in the Serie A championship and to conduct their market campaigns for the acquisition of new players. Furthermore, Conto TV's initiative could have distorted competition in the pay-tv market, leaving pay-tv operators free to broadcast Serie A live games only on digital terrestrial television, but not on the satellite, to the advantage of Mediaset Premium and Dahlia TV (SKY and Conto TV's main competitors). Thus, this decision was much awaited and received the attention of all Italian medias.
Dec 20, 2010
A Cleary Gottlieb team obtained a 93% reduction of the €290-million fine imposed on Eni in 2006 by the Italian Competition Authority for an alleged abuse of dominance in connection with the delay in the expansion of the Trans Tunisian Pipeline, which allows the import of Algerian gas into Italy. This was the highest fine ever imposed by the ICA on a single company.
By means of a judgment published on December 20, 2010, the Council of State, i.e., Italy's supreme administrative court, drastically reduced the fine at stake, setting it at €20.4 million. The judgment puts an end to a long and complex saga with Cleary Gottlieb defending Eni since the outset of the administrative proceedings before the ICA.
Following the appeals lodged by Eni and its subsidiary Trans Tunisian Pipeline Company against the ICA's infringement decision, in 2007, the TAR Latium, i.e., the first instance administrative court competent for reviewing the ICA's decisions, had quashed the decision to what concerned the imposition of the fine. The first instance court deemed that the ICA had failed to adequately state the reasons why the alleged violation should be qualified as a very serious infringement (within the meaning of the 1998 Commission's fining guidelines), also in light of the arguments set forth by Eni as to the fact that the alleged abusive conduct could not be considered a clear-cut abuse. The TAR Latium thus concluded that the ICA should re-determine the amount of the fine. Both Eni (and TTPC) and the ICA appealed the TAR Latium's judgment before the Council of State. Pending the Council of State's decision, in May 2010, the ICA opened proceedings aimed at re-determining the fine in order to comply with the TAR Latium's judgment.
In its judgment, the Council of State, while rejecting the ICA's appeal, upheld Eni's arguments that the alleged abuse could be at most qualified as a serious infringement, not a very serious one, acknowledging the absence of any intentional plan by Eni to exclude competitors. The Council of State also considered that the fact that, in the context of the proceedings before the ICA, Eni had undertaken to carry out the planned expansion and that it subsequently timely completed it, justified a reduction of the amount of the fine well in excess of that granted by the ICA in its decision. The re-determination of the fine provided for in the Council of State's judgment renders moot the above-mentioned proceedings opened by the ICA in May 2010.
Jun 22, 2010
Cleary Gottlieb won a victory for Connecticut-based People’s United Bank when U.S. District Judge Peter Dorsey rejected the request by Massachusetts-based PeoplesBank for a preliminary injunction against People's United's planned renaming of two banks it had recently acquired in western Massachusetts with the "People's United Bank" trademark. PeoplesBank had complained that use of the "People's United Bank" name in western Massachusetts would cause consumers to be confused that the banks were associated with PeoplesBank, and thereby infringe PeoplesBank's trademark rights in its name. This ruling followed a six day evidentiary hearing before Judge Dorsey in May. The court ruled that PeoplesBank had failed to satisfy any of the requirements for a preliminary injunction, noting in particular its failure to show that it would suffer irreparable injury without an injunction. The court also rejected PeoplesBank's contention that it was likely to succeed on its trademark infringement claim, noting that the word "people" is commonly used in bank names (it is currently used by 159 banks nationwide), the banks' logos are dissimilar, consumers' sophisticated decision-making in choosing among banks renders any name-based confusion unlikely, and the two banks already have a long history of coexisting without actionable consumer confusion in their shared cross-border market. Cleary Gottlieb had previously defeated PeoplesBank's attempt to enjoin People's United's interim step of renaming each of its newly-acquired Massachusetts-based banks as "a division of People's United Bank," and PeoplesBank's attempt to have this dispute resolved in federal court in Massachusetts, rather than Connecticut.
Oct 26, 2009
Cleary Gottlieb successfully represented the Republic of Congo in an International Chamber of Commerce arbitration against Groupe Antoine Tabet, a Lebanese company. In its October 26 award, the ICC Arbitral Tribunal dismissed Groupe Antoine Tabet's claim and granted Congo's counterclaim in the amount of €34 million.
This decision puts an end to a 10-year complex arbitration arising out of two agreements for the financing by Groupe Antoine Tabet of the construction and expansion by Groupe Antoine Tabet's congolese subsidiary (Afrique Entreprise Tabet) of roadways in Congo.
After the 1997/1998 civil war, the new Congolese Government terminated the agreements with Groupe Antoine Tabet.
Relying on (i) an allegedly agreed-upon fixed repayment schedule and (ii) the indemnification clause provided for in the agreements, Groupe Antoine Tabet sought more than €100 million as a result of Congo's failure to make installment payments under the fixed schedule and to compensate for the loss suffered by Afrique Entreprise Tabet during the civil war.
The Republic of Congo denied Groupe Antoine Tabet's claim and asserted a counterclaim seeking compensation for excess repayments under the financing agreements.
The ICC Tribunal upheld Congo's defense that the repayment schedule relied upon by Groupe Antoine Tabet was not binding on Congo, dismissed most of Groupe Antoine Tabet's damages claims, and granted Congo's counterclaim.
The overall outcome is an approximately €34 million debt from Groupe Antoine Tabet to the Republic of Congo.
This dispute also gave rise to numerous civil and criminal judicial proceedings in Congo, France, and Switzerland, including ongoing annulment, exequatur and enforcement proceedings in France, in which Cleary Gottlieb represents the Republic of Congo.
May 26, 2010
Cleary Gottlieb won a recent appeal for The Heisman Trophy Trust in the Second Circuit Court of Appeals. On May 26, the Court affirmed the permanent injunction and award of attorneys' fees previously won by the Heisman Trust against Smack Apparel Company, based upon Smack's manufacture and sale of t-shirts that infringed the Heisman Trust's trademarks and also violated the parties' prior settlement agreement stemming from Smack's previous infringements.
In 2008 the Trust caught Smack selling t-shirts featuring the "Heisman" trademarks and references to leading candidates for the Heisman Trophy award. The Trust sued Smack in New York federal court for trademark infringement and dilution and breach of the agreement by which Smack had previously agreed not to misuse the "Heisman" marks following a prior infringement. U.S. District Judge Victor Marrero granted the Trust a preliminary injunction, and then partial summary judgment and a permanent injunction against Smack's misconduct. He also enforced the prior settlement agreement's requirement that Smack pay the bulk of the Trust's attorneys’ fees and costs. The May 26 Second Circuit decision affirms the District Court's rulings in full.
Securities Group of the Year
Law360 (2012)
GAR30 International Arbitration Practice
Global Arbitration Review’s 30 Most Active Firms Worldwide (2011)
Recognized for general commercial, antitrust, and securities and white-collar crime litigation; international arbitration; and practices in New York and Washington, D.C.
Benchmark Litigation: The Definitive Guide to America's Leading Litigation Firms and Attorneys (2011)
“Cleary Gottlieb Steen & Hamilton LLP has established itself as a top tier national firm and has grown into an international litigation leader over the past 63 years.”
Benchmark Litigation: The Definitive Guide to America's Leading Litigation Firms and Attorneys (2011)
Go-To Law Firm for Litigation
Corporate Counsel (2011)
Top 7 firm worldwide appearing as arbitration counsel
The American Lawyer's "Arbitration Scorecard" (2011)
“This firm has a strong presence in Latin America on the back of its corporate work in the region, and is particularly highlighted for its experience in sovereign debt and bondholders disputes. The team is primarily engaged in investment disputes and is well regarded for its expertise in both investor and sovereign state representation.”
Chambers Latin America (2012)
“In addition to its very strong New York base, this group has significant disputes capacity in Paris, Rome and London, and also offers exceptional strength in antitrust cases via its Washington, DC office. The team counts a number of key financial institutions among its clients. According to sources: ‘A very good global disputes practice, with great strength in competition litigation.’”
“Sources say: ‘The team is innovative and demonstrates impressive attention to detail.’”
Chambers Global (2011)
“This group is prized for its cross-practice approach, offering strong corporate, regulatory and finance expertise, and is recommended for its international capabilities, allowing for seamless client service. The group is widely respected for representing large financial institutions in complex civil litigation and securities-related litigation as well as regulatory and criminal matters. The team is praised for its diligent bench of attorneys and its client-focused approach. … ‘The group has terrific lawyers with the ability to handle significant litigation cases.’”
Chambers USA (2011)
“This dispute resolution practice is viewed as one of the top players in Paris, thanks to its ‘excellent arbitration team and top-class litigators.’ The group benefits from the firm’s strong international network… Commentators confirm that ‘the firm’s international profile is a major draw,’ and particularly praise the partners for ‘anticipating their clients’ needs.’”
“The Italian team is also highly recommended for its work in this area. ... ‘The team is innovative and demonstrates impressive attention to detail.’”
Chambers Europe (2011)
“Peers say the international arbitration team at Cleary Gottlieb contains ‘great lawyers’ and is a ‘tough opponent.’ The firm has a strong mix of sovereign and commercial clients.”
The Legal 500 - US (2011)
“With litigation specialists all over the world, this firm’s well-developed practice has benefited from the global economic turmoil. Interviewees note the team-based culture at the firm, which encourages co-operation between the various global outposts and offers clients an intelligent approach to cross-border matters.”
Chambers Global (2010)
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