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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, Citigroup, Crédit Agricole 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.
Apr 16, 2013
With a decision rendered on April 16, 2013, the Court of Milan rejected all the claims for damages brought by Independent Global Managers SGR against three HSBC companies and several other entities. This is the first Italian decision on the Madoff case and one of the few Italian decisions on prospectus liability.
IGM had contested: (i) the accuracy and completeness of the information contained in the prospectus of the Thema Fund; (ii) the infringement of the EU regulation on harmonized funds (primarily due to the role played by Bernard Madoff and by the companies linked to him); and (iii) the failure to comply with the obligations imposed on the Thema Fund custodian and administrator.
Mar 21, 2013
SuperMedia filed a prepackaged chapter 11 proceeding on March 18, 2013 to effectuate its proposed merger with Dex One Corporation, which also filed a prepackaged chapter 11 case on the same day. The prepackaged plans, which have the overwhelming support of the companies' respective secured lenders and stockholders, provide for the consummation of the merger, subject to bankruptcy court approval and other conditions.
The proposed merger was first announced in August 2012, and required certain amendments to SuperMedia and Dex One’s loan agreements. Outside of a court process, these amendments would require consent of each lender under the affected loan agreements, but under bankruptcy law, the amendments can be approved with the consent of only one-half of lenders holding two-thirds in amount of the loans under the affected loan agreements. Although SuperMedia did not obtain the consent of every lender, it did obtain acceptance of its prepackaged plan by lenders holding more than 91 percent of the outstanding loans.
Prior to filing the chapter 11 proceeding, SuperMedia also solicited its stockholders for approval of the prepackaged plan. Under the prepackaged plan, stockholders are to receive the same treatment they would receive if the merger was consummated outside of bankruptcy. It is anticipated that SuperMedia stockholders will hold approximately 40 percent of the stock of the combined company, Dex Media, and that Dex One stockholders will hold the remaining shares. Of the SuperMedia stock that voted, over 99 percent voted to accept SuperMedia's prepackaged plan.
Dex One’s lenders and stockholders have also voted to accept Dex One’s prepackaged plan. Under the prepackaged plans, unsecured creditors of SuperMedia and Dex One will be unimpaired and entitled to full payment of their allowed claims.
The court has scheduled a hearing to consider approval of the prepackaged plans on April 29, 2013.
Apr 08, 2013
On April 8, 2013, Fintech Investments Ltd. closed on transactions to conclude the restructuring of Vitro S.A.B. de C.V., which has been one of the most complex and highly contested multi-jurisdictional restructurings involving any company seeking recognition in the United States of an approved foreign judicial reorganization proceeding. As previously reported, Cleary Gottlieb represented Fintech in connection with the negotiation of a series of agreements with Vitro and certain of its creditors pursuant to which Fintech agreed to acquire the bonds held by those creditors, and take certain action to resolve all pending litigation involving Vitro’s financial restructuring. In exchange for its participation in the settlement, Fintech agreed to contribute the bonds it acquires to the restructuring plan approved by the Mexican legal process and receive the Mexican plan consideration and a subsidiary of Vitro agreed to provide Fintech with shares that will represent approximately 20% of Vitro’s outstanding stock and a senior secured note with a two-year maturity.
In connection with the transaction, Cleary Gottlieb also assisted Fintech in negotiating secured repo financing. Cleary Gottlieb litigation and bankruptcy teams are handling the resolution of various civil and bankruptcy related cases in the United States and Mexico. Previously as part of this assignment, Cleary Gottlieb represented Fintech in connection with a tender offer and consent solicitation that preceded Vitro’s Mexican prepackaged plan of reorganization, the negotiation and structuring of Vitro’s concurso mercantil plan in Mexico, and the enforcement proceedings for the plan under Chapter 15 of the U.S. bankruptcy code, including numerous appeals. In addition, Cleary Gottlieb has represented Fintech in litigation that arose out of Vitro’s restructuring, including before the Fifth Circuit Court of Appeals.
May 07, 2013
Cleary Gottlieb won summary judgment for its client National Westminster Bank resulting in the dismissal of two lawsuits against the bank under the Anti-Terrorism Act by over 200 plaintiffs who are victims of terrorist attacks in Israel between 2002 and 2005 that have been attributed to Hamas. The Anti-Terrorism Act provides U.S. citizens who are injured by a terrorist attack with a civil damages claim against the attack’s perpetrators and any other person or entity who provided material support or financing for the attack. In their lawsuits against NatWest, the plaintiffs allege that the bank provided material support for the attacks by which they were injured as the result of the routine banking services that the bank provided to a London-based charity, named Interpal, which states it provides humanitarian support for the population in the Palestinian Territories, but which the United States and Israel have accused of raising money to fund Hamas terrorism. UK authorities have conducted several investigations of Interpal, and have declined to sanction it under UK law, and therefore it continues to operate today as a lawfully registered charity.
After seven years of fact and expert discovery, NatWest moved for summary judgment on the ground that plaintiffs could not prove three elements of their claims – that NatWest knew or deliberately disregarded that Interpal was funding Hamas terrorism, that the routine banking services NatWest had provided to Interpal proximately caused the attacks by which the plaintiffs claim to have been injured, and that Hamas perpetrated the attacks at issue.
U.S. District Judge Dora Irizarry granted NatWest summary judgment, agreeing with NatWest that the plaintiffs could not prove that NatWest knew or deliberately disregarded that Interpal was funding Hamas terrorism, thus mooting the other grounds for dismissing the plaintiffs’ claims. The court concluded that, contrary to the plaintiffs’ allegations, NatWest was diligent in monitoring Interpal’s account, it repeatedly reported its suspicions about Interpal to UK law enforcement authorities and the Bank of England, and it was assured by the authorities that they had no plans to charge Interpal with any wrongdoing, and therefore NatWest could continue to provide banking services to it.
The plaintiffs have appealed the District Court’s dismissal order to the Second Circuit Court of Appeals.
The firm is also representing Crédit Lyonnais in parallel lawsuits by the same plaintiffs and arising from the same terrorist attacks. Those lawsuits arise from the routine banking services that Crédit Lyonnais provided to a Paris-based Palestinian charity. Judge Irizarry recently denied Crédit Lyonnais’s summary judgment motion, and the parties expect these lawsuits will soon be scheduled for trial.
These lawsuits have generated substantial interest among international banking regulators and banks, because they are likely to yield precedents that will define the scope of banks’ obligations to investigate suspicions concerning possible customer misconduct and their responsibility for that misconduct.
Jan 16, 2013
Cleary Gottlieb’s client OAO Tomskneft has successfully challenged enforcement in France of an international arbitral award obtained by Yukos Capital S.a.r.l. in 2007 in New York.
On January 16, 2013, the Paris Court of Appeal overruled an ex parte exequatur order because due process had been violated during the arbitration. The Court concluded that Tomskneft did not receive a number of significant communications necessary to its ability to defend itself in the arbitration, including procedural orders, the transcript of the hearing, and the order declaring the proceedings closed. The Court held that Tomskneft’s failure to participate in the proceedings – based on its belief that there was no valid agreement to arbitrate – did not relieve the arbitrator from his duty to inform Tomskneft of all aspects of the proceedings. The Court of Appeal further ordered Yukos Capital to pay a portion of Tomskneft’s legal fees.
Under the ICC award, Tomskneft was held in default under three loan agreements totaling 4.35 billion Russian rubles (approximately $140 million), which it was ordered to pay together with interest of 9% per year and 0.1% per day. Courts in Russia previously declined to enforce the award on the same due process grounds, and they have declared the underlying loan agreements void.
Because the Paris Court of Appeal ruled in Tomskneft’s favor on due process grounds, it did not reach other defenses invoked by Tomskneft, including that there was no valid arbitration agreement, that enforcement of the awards would violate French public international order because the loan agreements on which they rested were an integral part of Yukos Oil’s tax fraud scheme, and the addition of daily interest was illegal.
Oct 22, 2012
On October 22, Cleary Gottlieb defeated in New York Supreme Court a motion to compel its clients Crédit Agricole Corporate and Investment Bank and HSBC Bank USA to comply with post-judgment subpoenas seeking worldwide third party discovery of a judgment debtor's assets. Plaintiff, a Saudi resident, had sought to require 16 New York branches or subsidiaries of global banks to produce from the banks' worldwide files documents that might assist him in collecting a judgment he obtained in Lebanon against a former employee who fled to Brazil. Invoking New York's long-standing "separate branch" rule, as well as principles of comity and public policy, the court quashed the subpoenas, noting that it would be unjust and inappropriate to compel the burdensome worldwide discovery that the plaintiff sought.
Oct 25, 2012
Cleary Gottlieb client Merrill Lynch on October 25, 2012 won a unanimous reversal from the First Department of the New York Supreme Court, Appellate Division of a summary judgment decision against Merrill Lynch.
In connection with four, multi-billion CDO transactions (involving the "Taberna" issuers), Merrill served as the counterparty pursuant to a hedge agreement for each transaction with the Taberna entities to hedge against interest rate exposure. The hedge agreements, documented under the 1992 International Swaps and Derivatives Association ("ISDA") master agreement, permitted Merrill to declare an event of default and terminate early for an uncured payment default by the Taberna entity. After a series of payment defaults, Merrill exercised that right with respect to all four transactions, and demanded that the indenture trustee pay it approximately $250 million in termination payments. Several noteholders challenged the validity of the terminations, asserting that the language of the Taberna indentures expressly prohibited early termination of the hedge agreements for a payment default.
Faced with competing directions, the indenture trustee brought an interpleader action in December 2010 in the New York Supreme Court, and, in March 2011, Merrill and the noteholders simultaneously filed motions for summary judgment. Cleary Gottlieb argued that for three of the four transactions, a provision in the hedge agreements provided for the hedge agreements to prevail in the event of conflict with the indentures and that, with regard to the fourth that did not have such provision, discovery was necessary to resolve any inconsistency between the agreements. The noteholders, in turn, sought to reconcile the hedge agreements with the indentures, focusing on what they argued was clearer language in the indentures in their favor. In November 2011, Justice Eileen Bransten of the Commercial Division rejected Merrill's arguments and awarded summary judgment in favor of the noteholders with respect to all four transactions and found Merrill's early termination to be invalid.
Cleary Gottlieb immediately moved for and obtained a stay from the First Department barring the indenture trustee from distributing the escrowed funds to the noteholders, then briefed and argued the merits of the appeal this past spring. In a 5-0 decision on October 25, 2012, the First Department agreed with all of Cleary Gottlieb's arguments, reversed Justice Bransten's decision and ordered that summary judgment be granted in favor of Merrill Lynch on three of the four transactions because Merrill Lynch had properly terminated the hedge agreements and thus had a right to early termination payments, and reversed and remanded the fourth transaction for discovery and further proceedings.
Sep 30, 2012
Cleary Gottlieb won a victory for the Bank for International Settlements ("BIS") on September 30 when District Judge Edmond E. Chang dismissed, with prejudice, a putative class action brought in the Northern District of Illinois against the BIS and numerous other defendants including the Federal Republic of Germany. Plaintiffs asserted numerous claims to payment on bonds they claimed to hold that were issued by Germany after World War I to fund reparations payments determined in the Treaty of Versailles, including, as to the BIS specifically, bonds issued under the Dawes Plan of 1924 and the Young Plan of 1930. Many of these bonds had been repurchased -- but not physically cancelled -- by Germany before World War II and stored in Reichsbank vaults in Berlin. During the fall of Berlin in April 1945, Russian soldiers raided the vaults, looted the invalid bonds, and returned them to circulation. After World War II, by treaty and legislation, Germany established a process for holders of Dawes, Young, and similar bonds to submit them to an agency in Germany to determine whether the bonds were valid (and not the looted bonds), and if so, exchange the valid bonds for performing debt pursuant to the London Debt Agreement of 1953.
Despite declining to proceed with the validation procedures in Germany, Plaintiffs sought payment from the BIS and the other defendants based on numerous common-law theories of liability, including, by way of example, breach of contract, breach of fiduciary duty, fraud, conversion, and intentional infliction of emotional distress. Plaintiffs also asserted a series of federal claims based on the federal securities laws, the RICO statute, and the Alien Tort Claims Act. Judge Chang dismissed the complaint on numerous grounds, including that Plaintiffs' failure to comply with the validation requirements prevented them from seeking payment, that all applicable statutes of limitations for their claims had long since run, and that the complaint suffered from myriad pleading deficiencies.
Sep 04, 2012
On September 4, the District Court of the Southern District of New York dismissed with prejudice the securities class action complaint brought against Cleary Gottlieb underwriter clients as well as against Royal Bank of Scotland and several individual defendants. Our clients included Merrill Lynch, Greenwich Capital Markets; Wachovia Capital Markets; Morgan Stanley; UBS; Bank of America Securities; RBC Dain Rauscher; Citigroup Global Markets; A.G. Edwards & Sons; and Goldman, Sachs & Co.
Plaintiffs brought purported class action claims in the S.D.N.Y. under Sections 11 and 12 of the Securities Act in connection with five offerings of RBS Preference Shares that were issued between May 22, 2006 and September 28, 2007. The underwriter defendants acted as underwriters on one or more of these offerings. Plaintiffs alleged that the offering documents for these offerings contained false or misleading statements regarding RBS’s risk management procedures, its internal financial controls, the strength of its capital base, the company’s financial condition, and the benefits of its acquisition of ABN AMRO in 2007. In particular, the complaint alleged that these statements were false because of RBS’s failure to disclose the magnitude of its exposure to subprime assets that it had accumulated prior to and during the time of the offerings.
Defendants moved to dismiss the complaint for failure to state a claim, as well as on the grounds that the claims were time barred and that plaintiffs lacked standing to bring their Section 12 claims. Judge Batts granted the motions to dismiss on the grounds that the Complaint failed to adequately identify any actionable misstatement or omission. Among other things, she held that the allegations failed to plead any contemporaneous facts showing that the alleged misstatements were false at the time they were made. She concluded that, at best, the complaint impermissibly relied on hindsight allegations regarding the performance during the financial crisis of subprime assets owned by RBS, which showed nothing about the financial and risk management conditions at RBS at the time its statements were made. She did not reach the statute-of-limitations or standing arguments.
Aug 07, 2012
On behalf of Citigroup, Cleary Gottlieb successfully defeated claims brought by Con Edison and the Port Authority of New York and New Jersey for damages stemming from the collapse of 7 World Trade Center on September 11, 2001.
Con Edison asserted a negligence claim against Citigroup, a tenant in 7 World Trade Center, alleging that Citigroup’s diesel generator system leaked and contributed to the fire that caused 7 World Trade Center to collapse on September 11, damaging the Con Edison substation located beneath the building and knocking out power to Lower Manhattan. Con Edison also sued the Port Authority (the sole regulatory authority for the space and landowner) and Silverstein Properties (the landlord and builder). After over five years of discovery, Citigroup moved for summary judgment against Con Edison based on the theory that (1) Citigroup as a tenant did not owe any duty to Con Edison, and (2) Con Edison failed to establish any proximate cause between its damages on September 11th and Citigroup’s actions, especially in light of the unforeseeable, intervening acts of terrorists. Finding that the events of September 11 were “too improbable to be consistent with any duty” toward Con Edison, Judge Hellerstein granted Citigroup’s motion.
Port Authority also asserted contractual indemnification claims based upon agreements governing Citigroup’s modifications to its rental space, which Port Authority alleged required Citigroup to indemnify Port Authority for claims brought by Con Edison against Port Authority relating to Citigroup’s diesel generator system. Judge Hellerstein granted Citigroup’s motion for summary judgment, finding that Con Edison’s claims against Port Authority were not covered by the indemnification agreements between Citigroup and Port Authority. On August 7, the Second Circuit affirmed that decision, resolving all pending litigation against Citigroup arising out the collapse of 7 World Trade Center on September 11.
Aug 17, 2012
Cleary Gottlieb has successfully defended the Republic of Iraq's sovereign immunity in the UK Supreme Court, 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 August 17, the Supreme Court Justices upheld the November 2011 decision of the English Court of Appeal, which in turn 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.
Jul 30, 2012
Cleary Gottlieb won a victory for Mark Messier and the National Hockey League Players' Association in an NHL grievance arbitration against the Vancouver Canucks, for whom Mr. Messier played between 1997 and 2000. Following a 3-day arbitration hearing that took place at the end of May and after receiving extensive submissions by the parties over several months, on July 30 an NHL arbitrator ordered the Canucks to pay to Mr. Messier $6.2 million in deferred compensation, consisting of the full damages sought plus more than $1 million in interest. Mr. Messier was seeking deferred compensation from the Canucks for a "phantom investment" that entitled him to a share of any increase in the fair market value of the Canucks between 1997 and 2007. The Canucks took the position that Mr. Messier was not entitled to any additional deferred compensation on the basis that there had been no appreciation in its value over the 10-year period due in large part to the accumulation of losses it suffered and that the grievance was time-barred under the 60-day limitations period set forth in the NHL's Collective Bargaining Agreement. In a 40-page award, the arbitrator agreed with Mr. Messier on all issues.
Jul 10, 2012
Cleary Gottlieb successfully opposed class certification on behalf of ING Groep, its directors, and several affiliates in a ruling issued on July 10 by Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York. Plaintiffs brought Securities Act claims against ING and others alleging that the offering materials for three perpetual capital hybrid securities offerings issued by ING in 2007 and 2008, raising, in the aggregate, $4.5 billion, contained material misstatements and omissions concerning ING’s mortgage-backed securities holdings. In a previous ruling, Judge Kaplan granted a motion to dismiss all claims based upon two of those offerings.
On July 10, Judge Kaplan denied plaintiffs’ motion to certify a class of purchasers of the third offering, holding that the proposed class representative, Belmont Holdings, could not so serve. Belmont, a company affiliated with Raymond Perelman, purchased $10 million of ING hybrid securities issued in the third offering but then sold them for their purchase price to a separate company that, while affiliated with Perelman, had different owners. Because Belmont received the full value of what it paid for the securities, Judge Kaplan ruled, it had no damages and therefore could not serve as class representative. As a result, no class could be certified.
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.
Jun 27, 2012
Cleary Gottlieb client Rosneft Oil Company achieved an important victory in the Court of Appeal of England on June 27, in ongoing litigation with Yukos Capital. Yukos Capital claims interest on arbitration awards that were annulled by the Russian courts but the Amsterdam Court of Appeal nevertheless enforced.
In granting Rosneft’s appeal, the English Court of Appeal rejected Yukos Capital’s argument that the Dutch treatment of the Russian judgments binds the English courts in any respect, leaving Rosneft free to defend based on the Russian annulment decisions. In a separate part of the English judgment, the court held that the English Act of State doctrine does not impact certain arguments Yukos Capital seeks to make concerning the Russian annulment decisions.
Cleary Gottlieb previously succeeded in gaining dismissal of a related lawsuit by Yukos Capital against Rosneft in New York in 2010, and is coordinating the defense of the litigation in England, working with Travers Smith.
Mar 15, 2012
Cleary Gottlieb obtained a comprehensive decision from the Second Circuit Court of Appeals rejecting claims by owners of bearer bonds issued by Petrobras, the Brazilian state-owned oil company, during the 1950s. The ruling reversed a lower court decision holding that the claims, which plaintiffs asserted amounted to approximately $300 million, could proceed in New York. The Second Circuit rejected the contention that the Foreign Sovereign Immunities Act provided for jurisdiction in U.S. courts to hear these claims and also expressed "grave concern" about the purported merits of the claims.
Jul 06, 2012
On July 6, Cleary Gottlieb won an appeal from an order of the U.S. Bankruptcy Court to the U.S. District Court for the Southern District of New York in litigation brought by the liquidator of Fairfield Sentry Limited, the largest of the so-called Madoff feeder funds, and two affiliated funds.
The firm represents approximately 30 affiliates of HSBC, BNP Paribas, Credit Agricole, Citigroup and The Bank of New York Mellon Corporation that on behalf of their respective banking customers served as nominee registered shareholders of the Fairfield Funds. Beginning in April 2010, the liquidator of Fairfield brought suit against our clients and hundreds of other current and former registered shareholders of the funds seeking restitution of payments that shareholders received in consideration for tendering their shares for redemption pursuant to the funds' articles of association.
On June 27, the Bankruptcy Court issued an order granting an application by the Fairfield liquidator seeking disclosure of the names and addresses of the banking customers who were the beneficial owners of the shares and on whose behalf the redemption payments at issue were received. The Bankruptcy Court interpreted a provision of the agreement signed when subscribing for the shares as a consent by defendants to provide such information and therefore did not address defendants' objection that disclosure should not be ordered because it would violate the banking secrecy, confidentiality and privacy laws of at least 30 nations under whose laws defendants are organized. The Bankruptcy Court also ruled that it had authority to order the disclosure even without first resolving defendants' objections that the court lacks subject matter and personal jurisdiction and in any event is required to abstain from the actions.
On June 28, Cleary Gottlieb filed on behalf of its clients an emergency motion for a stay of and leave to appeal the Bankruptcy Court's order. Hundreds of other defendants represented by dozens of other firms joined in the motion.
On June 29, Chief Judge Preska of the District Court granted our motion for a stay and scheduled further briefing and oral argument on our motion for leave to appeal. On July 6, 2012, following a four-hour oral argument, the District Court granted our motion for appeal and issued a decision reversing the Bankruptcy Court's order. The District Court held that the Bankruptcy Court had misinterpreted the subscription agreements and committed reversible error by failing to engage in a comity analysis before ordering disclosures in violation of the banking secrecy, confidentiality and privacy laws of other nations. In light of this ruling, the District Court avoided reaching the constitutional question of whether the Bankruptcy Court had authority to issue the order prior to resolving defendants' jurisdictional challenges. The District Court remanded the actions to the Bankruptcy Court to address the comity and threshold jurisdictional issues in a manner that is "just, speedy and inexpensive."
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.
Recognized for general commercial, antitrust, bankruptcy, securities, appellate (U.S. Court of Appeals for the Second Circuit) 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 (2013)
Standout Securities and Finance Litigation Firm
BTI Litigation Outlook (2013)
GAR100 Firm
Global Arbitration Review’s Top Arbitration Firms Worldwide (2013)
Standout Firm for Litigation
(Setting the strategy in Madoff-related cases)
Financial Times - U.S. Innovative Lawyers Report (2012)
Securities Group of the Year
Law360 (2012)
Italian Litigation Law Firm of the Year
TopLegal (2012)
Recognized for general commercial, antitrust, 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 (2012)
Go-To Law Firm for Litigation
Corporate Counsel (2012)
Restructuring Deal of the Year
(Lehman Brothers Chapter 11 proceedings)
International Financial Law Review (2012)
“This US firm has notable international strength in arbitration, with a particularly strong practice in Paris and a high level of expertise in disputes involving oil and gas issues, mining concessions, sovereign debt and financial services.”
Chambers Global (2013)
“This US powerhouse remains a go-to firm for complex international contentious issues, and is particularly noted for its strength in international arbitration. Recent highlights include advising on two of the first class actions in Italy following the adoption of a new class action law.”
Chambers Europe (2013)
“Cleary’s disputes practice is notable for its successful management of enormously complex cases, involving multiple litigations and arbitrations, often across many borders.”
Latin Lawyer 250 (2013)
“The firm's skill set is at the highest caliber among firms both in the US and internationally.”
“[Cleary] maintains a deep bench that clients have championed to handle their most complex matters.”
Benchmark Litigation: The Definitive Guide to America's Leading Litigation Firms and Attorneys, (2013)
“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 (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.’”
“This firm’s arbitration expertise is chiefly concentrated in Paris, from where it acts on a variety of arbitrations including key cases involving sovereign states. Sources say: ‘Excellent in both Paris and the USA.’”
Chambers Global (2012)
“The strongly cohesive and integrated approach that Cleary offers is equally prevalent in the international arbitration practice group, and is highlighted by clients as being a distinct asset. The group is a recognized force in both investment treaty and commercial arbitration, and offers expertise across a wide range of industry sectors.”
Chambers USA (2012)
“The large dispute resolution practice at this U.S. firm is perhaps best known for its international arbitration capacity, but is also well regarded in the litigation field. It handles commercial and investment treaty arbitration cases throughout the world, and is particularly active in the oil and gas, aerospace, telecoms and automotive sectors. Clients are full of praise for the high level of expertise and service provided by the group.”
Chambers Europe (2012)
“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)
Cleary Gottlieb “represents sovereigns and investors in both treaty and commercial arbitration. … Clients praise the team as ‘responsive, capable, sophisticated, flexible and strong.’”
The Legal 500 U.S. (2012)
“Its ever-deepening commitment to the region has been underlined by the establishment of offices in Buenos Aires and São Paulo in 2009 and 2011, respectively…. ‘[The firm] demonstrates very high business acumen and an excellent capacity for problem solving.’”
The Legal 500 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.’”
Chambers Global (2011)
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