Wollmuth Maher & Deutsch LLP

Firm Files Defamation Action on behalf of the Thoroughbred Retirement Foundation Against Executor of the Paul Mellon Estate

johnlazar — Fri, 06 Jan 2012 16:20:38 +0000

The Firm filed a lawsuit in New York Supreme Court on behalf of the Thoroughbred Retirement Foundation (the “TRF”) against Frederick A. Terry, Jr., an executor of the Paul Mellon estate and long time attorney at Sullivan & Cromwell. The TRF, a New York charitable corporation, is the oldest and largest organization in the world dedicated to rescuing and providing homes for thoroughbred horses no longer able to compete on the racetrack and that may otherwise be subject to neglect, abuse and slaughter. The TRF is supported and recognized by virtually all major stakeholders in the thoroughbred breeding and racing industry and has historically partnered with leading industry organizations to promote the interests of retired thoroughbred race horses. A small but significant portion of the TRF’s budget is provided by a $7 million endowment created under the will of Paul Mellon, well-known philanthropist, horseman and owner of Kentucky Derby winner, Sea Hero, and other American and European champion thoroughbreds. As part of an effort to take control of the TRF from its current directors and officers, Defendant Terry published a letter falsely accusing the TRF of making misleading financial disclosures and improperly using distributions from the Mellon endowment. Defendant’s false allegations have adversely impacted the TRF’s fundraising efforts. The Complaint alleges claims for libel and slander and seeks both compensatory and punitive damages. [The Thoroughbred Retirement Foundation v. Frederick A. Terry, Jr., Index No. 150012/2012]

A copy of the Complaint is available here.

Firm Obtains Landmark Ruling From New York’s Highest Court That The Martin Act Does Not Preempt Investors’ Common-Law Tort Claims

Ken Miles — Wed, 21 Dec 2011 03:32:23 +0000

On an issue of major significance to investors, the Firm obtained a landmark ruling from New York’s highest court, on behalf of its client Assured Guaranty (UK) Ltd., that New York’s “blue-sky” law, known as the Martin Act (N.Y. Gen. Bus. Law sections 352-59), does not preempt investors’ common-law claims for breach of fiduciary duty and gross negligence. [Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management, Inc., No. 227 (NY Court of Appeals, decided Dec. 20, 2011)]. In reporting on the decision, the New York Law Journal stated that “the Court of Appeals doused what had been conventional wisdom in other state and federal courts, and handed a significant consumer victory to investors . . .” NYLJ, dated December 21, 2011, at p.1. Specifically, the New York Court of Appeals unanimously “agree[d] with plaintiff that the Martin Act does not preclude a private litigant from bringing a nonfraud common-law cause of action.” Slip Op. at 7.

A copy of the decision is available here.

A video of Bill Maher’s oral argument before the New York Court of Appeals on November 15, 2011 is available here.

Firm Files Lawsuit on behalf of Lehman Brothers Against Affiliates of Bank of America and Barclays relating to a Multi-Billion Real Estate Group known as Archstone

Ken Miles — Thu, 15 Dec 2011 22:33:44 +0000

The Firm filed a lawsuit on behalf of Lehman Brothers Holdings Inc. and certain of its affiliates, including Archstone LB Syndicated Partner LLC, for an injunction, specific performance and a declaratory judgment, among other relief, against affiliates of Bank of America and Barclays, relating to a multi-billion dollar real estate group of companies known as Archstone. Archstone holds one of the largest residential real estate portfolios in the nation. The parties to the lawsuit, and certain other parties, acquired Archstone in 2007 for a purchase price of approximately $22 billion. Since the acquisition, the parties’ interests in Archstone have been restructured on several occasions. The lawsuit relates to Bank of America’s and Barclay’s effort to sell their combined approximately 53% interests in Archstone to Archstone’s largest competitor – Equity Residential. On December 14, 2011, Lehman Brothers and its affiliates sent a notice of intent to exercise their “right of first offer” under the governing documents of Archstone.

A copy of the Complaint is available here.

Firm Prevails on Summary Judgment Motion on behalf of Financial Entities in $300 Million Dispute Involving CDOs and Hedge Agreements

Ken Miles — Mon, 28 Nov 2011 22:07:41 +0000

The Firm represents AG Financial Products, Inc., an affiliate of Assured Guaranty Corp., and Natixis, in connection with a dispute concerning three separate Taberna Preferred Funding collateralized debt obligations (“CDOs”). The Hedge Counterparty for the Taberna CDOs, Merrill Lynch Capital Services Inc., purported to terminate the Hedge Agreements and claimed entitlement to Termination Payments of almost $300 Million with respect to these three Taberna CDOs (and one additional Taberna CDO). On September 28, 2011, the Firm presented argument that its clients were entitled to summary judgment that Merrill Lynch had no right to terminate the Hedge Agreements or to receive the Termination Payments it sought. On November 28, 2011, the Court ruled in our clients’ favor on all issues and held that Merrill Lynch had no right to terminate the Hedge Agreements or to receive the Termination Payments it sought.

A copy of the transcript of oral argument is available here.

A copy of the Court’s decision is available here.

WMD Represents U.S. Corrugated Acquisition Inc. in its $330 Million Sale to Kapstone Kraft Paper Corporation

Ken Miles — Mon, 31 Oct 2011 16:30:52 +0000

On October 31, 2011, pursuant to an Agreement and Plan of Merger, dated as of September 22, 2011, by and among KapStone Kraft Paper Corporation, a wholly owned subsidiary of KapStone Paper and Packaging Corporation (NYSE: KS), U.S. Corrugated Acquisition Inc., Pine Merger Corp., Dennis Mehiel and Dennis Dorian Mehiel (the “Merger Agreement”), KapStone Kraft Paper Corporation consummated its previously announced agreement to acquire U.S. Corrugated Acquisition Inc. from its stockholders by merger in a debt-free, cash-free transaction. The purchase price at closing was approximately $330 million and is subject to a post-closing target working capital adjustment.

In addition, pursuant to the Merger Agreement, six of U.S. Corrugated Acquisition Inc.’s converting facilities (and certain related assets) were sold by U.S. Corrugated Acquisition Inc. to a team of investors (the “Investor Team”) prior to the closing and were not acquired by KapStone Kraft Paper Corporation.

WMD represented U.S. Corrugated Acquisition Inc., Dennis Mehiel, Dennis Dorian Mehiel, and the Investor Team in connection with the foregoing transactions.

A copy of KapStone Paper and Packaging Corporation’s Form 8-K, which was filed with the United States Securities and Exchange Commission on October 31, 2011, can be accessed by clicking here.

Thomas P. Ogden

Ken Miles — Thu, 27 Oct 2011 15:13:32 +0000

Partner

Litigation & Dispute Resolution Group

Thomas Ogden joined the Firm in October 2011. From 1983 to 2011, he was an associate and then a partner at Davis Polk & Wardwell. He has nearly 30 years experience in securities litigation and enforcement, bankruptcy litigation, antitrust litigation, corporate internal investigations, and other commercial litigation.

Education

Tom received his J.D. degree in 1982 from The University of Chicago Law School, where he graduated Order of the Coif and was an Editor of the Law Review, as well as Hinton Moot Court Champion. He received a B.A. degree in History (cum laude) in 1978 from Princeton University.

Illustrative Professional Experience

• Represented investment bank as plaintiff in 2010 New York state court action to enforce gas and currency swaps with Mexican industrial counterparty; summary judgment for plaintiff.

• Represented private equity sponsor as defendant in 2010 Minnesota federal court fraudulent conveyance action arising out of portfolio company bankruptcy; settled favorably following mediation.

• Represented investment bank as plaintiff in obtaining restraining order in New York state court action for fraud against private equity investor, and in related foreign ancillary proceedings in New Jersey Bankruptcy Court. In re Grand Prix Associates Inc., 2009 Bankr. LEXIS 1779 & 2009 Bankr. LEXIS 1239 (Bankr. D.N.J. 2009).

• Represented bank group defendants in expedited discovery and trial of claims arising out of the leveraged buyout of Clear Channel Communications. BT Triple Crown Merger Co. v. Citigroup Global Markets, Inc., 862 N.Y.S. 813 (N.Y. Sup. Ct. 2008).

• Represented Prudential Insurance and various officers in 2002-07 New Jersey state securities action arising out of sub-prime mortgage-backed securities issued by former subsidiary; settled favorable following denial of class certification and dismissal of statutory claims.

• Represented investment bank in securities class action claims based on fairness opinion; all claims dismissed. In re Global Crossing Ltd. Securities Litigation, 313 F. Supp. 2d 189 (S.D.N.Y. 2003)

• Represented investment bank and individual officers in Texas state court fiduciary duty action arising out of bankruptcy of Ameriserve Inc.; favorably settled following dismissal of individual defendants. Rittenmeyer v. Grauer, 104 S.W. 3d 725 (Tex. Ct. App. 2003).

• Represented investment bank and individual officers in trial of securities law claims in New York federal court arising out of bankruptcy of Ameriserve Inc. Morgens, Waterfall v. Donaldson Lufkin & Jenrette Securities Corp., 198 F. Supp. 2d 432 (S.D.N.Y. 2002).

• Represented investment bank in 1998-99 Indiana federal court action for securities fraud arising out of sub-prime mortgage-backed securities issued by subsidiary; settled favorably following judicial mediation.

• Represented National Westminster Bank in antitrust boycott action by check cashing service; all claims dismissed on motion for summary judgment. Capital Currency Exch. v. National Westminster Bank, 155 F. 3d 603 (2d Cir. 1998).

• Represented Domino’s Pizza as defendant in price-fixing and monopolization action by franchisee group; lawsuit dismissed for failure to state a claim. Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F. 3d 430 (3d Cir. 1997).

• Represented officers and directors of General Electric in shareholder derivative action for alleged waste in connection with campaign financing activities; all claims dismissed on motion for summary judgment. Stern v. General Electric Co., 23 F. 2d 746 (2d Cir. 1994).

• Represented Bahamian provisional liquidator as plaintiff in New Jersey bankruptcy court ancillary proceeding to recover fraudulent investment in debtor. In re Emerson Radio Corp., 52 F. 3d 50 (3d Cir. 1995).

• Represented Kidder Peabody Inc. and General Electric in 1992-93 internal investigation and SEC proceedings arising out of the Joseph Jett trading scandal.

• Represented LTV Steel as debtor in various bankruptcy litigations. In re LTV Steel Company, 154 B.R. 29 (Bankr. S.D.N.Y. 1993) (valuation of security interest in steel plants); In re LTV Steel Company, 126 B.R. 165 (Bankr. S.D.N.Y. 1993) (valuation of PBGC contingent claim for pension benefits).

Professional Activities

Law Clerk, Hon. Abraham D. Sofaer, U.S. District Court, Southern District of New York (1982-1983)

Associate, Davis Polk & Wardwell (1983-1991)

Partner, Davis Polk & Wardwell (1991-2011)

Member, Committee on Corporate Reorganizations, New York City Bar Association (1992-1995)

Member, Visiting Committee, The University of Chicago Law School (2007-2010)

Gift Chair, Class of 1982 25th Reunion, The University of Chicago Law School (2006-2007)

Gift Chair, Class of 1982 30th Reunion, The University of Chicago Law School (2011-2012)

Admitted To Practice: State of New York; U.S. District Court, Southern District of New York; U.S. District Court, Eastern District of New York; U.S. Court of Appeals, Second Circuit; U.S. Court of Appeals, Third Circuit; U.S. Supreme Court

Articles

Federal Securities Statutes Trip Up Many – But Individual Fraud Suits Booming in State Courts, 8 Securities Reform Act Litigation Reporter 677 (February 1, 2000)

Mutual Funds Confront Dilemmas in Trying to Value Portfolios, New York Law Journal (December 15, 1997)

The Private Securities Litigation Reform Act of 1995: Civil RICO Reform, PLI Conference (February 26, 1996)

The SEC’s New Rules of Practice, New York Law Journal (August 3, 1995)

The SEC Proposes New Rules of Practice, New York Law Journal (February 22, 1994)

Aiding and Abetting Liability in SEC Enforcement Actions, New York Law Journal (December 6, 1993)

Other Activities Director, 2 East 98th Street Corporation (1993-1996); Trustee, Lower Eastside Service Center (1985-1992 & 2010-date); Chair, Parents Committee, Davidson College (2010-2011)

Firm Files Lawsuit on behalf of Lehman Brothers against Goldman Sachs Affiliate for breach of $1.3 Billion Real Estate Contract

Ken Miles — Thu, 06 Oct 2011 20:19:55 +0000

The Firm filed a lawsuit on behalf of a non-debtor subsidiary of Lehman Brothers Holdings Inc. and its affiliate, Lehman Commercial Paper Inc., against an affiliate of Goldman Sachs & Co. for breach of an approximately $1.3 Billion contract related to an office building portfolio in Virginia. [Rosslyn LB Syndication Partner LLC v. USREO/Rosslyn Investors, LLC, Chapter 11 Case No. 08-13555 (JMP); Adversary Proceeding No. 11-02764 (JMP)]

A copy of the Complaint is available here.

Thomas P. Ogden Joins Firm

Ken Miles — Sat, 01 Oct 2011 15:14:40 +0000

Thomas P. Ogden has become a member of the Firm in the Litigation & Dispute Resolution Group, effective October 1, 2011.

Tom retired from Davis Polk & Wardwell as of September 30, 2011, after 28 years, including 20 as a partner. At the Firm, he will continue his career in litigating major securities, bankruptcy, and other complex commercial matters.

Co-founder Dave Wollmuth stated: “Tom and I have known each other for over 25 years and, in the years we worked together at Davis Polk, he had a profoundly positive influence on my career. There is no keener legal mind, and we anticipate that Tom will play a key role in the continued growth and development of our Firm.”

Tom commented: “I am thankful to my former Davis Polk partners for many years of collaboration and support in that firm’s far-ranging practice. I am now fortunate enough to open a different phase of my career by joining many old and new friends at Wollmuth Maher. I very much look forward to adding to the Firm’s outstanding litigation practice.”

Tom’s more recent engagements include:

• Represented major investment bank as plaintiff in 2010 New York state court action to enforce gas and currency swaps with Mexican industrial counterparty; summary judgment for plaintiff.

• Represented private equity sponsor as defendant in 2010 Minnesota federal court fraudulent conveyance action arising out of portfolio company bankruptcy; settled favorably following mediation.

• Represented major investment bank as plaintiff in obtaining restraining order in New York state court action for fraud against private equity investor, and in related foreign ancillary proceedings in New Jersey Bankruptcy Court. In re Grand Prix Associates Inc., 2009 Bankr. LEXIS 1779 & 2009 Bankr. LEXIS 1239 (Bankr. D.N.J. 2009).

FIRM FILES MOTION TO CONFIRM REINSURANCE ARBITRATION AWARD ON BEHALF OF INSURANCE COMPANY

Ken Miles — Wed, 21 Sep 2011 22:15:45 +0000

The Firm filed a petition to confirm an arbitration award on behalf of Minnetonka Insurance Company, which prevailed in virtually every respect in the underlying arbitration. [Minnetonka Insurance Company v. Lloyd’s Syndicate SJC-2003, et al., 11 Civ. 6592 (S.D.N.Y) (DAB)]. The arbitration involved Minnetonka’s effort to enforce reinsurance agreements with respect to a claim in excess of $220 million submitted to it by Minnetonka’s insured in connection with the flooding of its facility in Cedar Rapids, Iowa, as well as other locations around the country.

A copy of the Petition to Confirm the Arbitration Award is available here.

Rahil Kamran-Rad

Ken Miles — Tue, 13 Sep 2011 16:22:51 +0000

Associate

Litigation & Dispute Resolution Group

Admitted to bar, 2010, New York; Massachusetts; Southern and Eastern Districts of New York. Education: Providence College (B.S., 2004, magna cum laude); Boston University School of Law (J.D., 2009). Member, New York State Bar Association, Massachusetts State Bar Association, Iranian American Bar Association.