The Work
June 27, 2008 9:25 AM
THE AM LAW LITIGATION DAILY: June 27, 2008
Posted by Jonathan Thrope
Edited by Andrew Longstreth
LITIGATORS
OF THE WEEK: DAVID BOIES AND DONALD FLEXNER
Historic
Antitrust Case Brings In $4 Billion For AmEx
David Boies
has worked on cases far more complicated than the American Express' antitrust
case against Visa and MasterCard. The government's pursuit of Microsoft, for
one. Al Gore's doomed 2000 post-election campaign, for another. But he hasn't
worked on any bigger case--at least in terms of his client's recovery. With
Wednesday's $1.8 billion MasterCard settlement, Boies and his partner Donald
Flexner have now collected a thoroughly impressive $4 billion for AmEx. We asked
Boies where the AmEx matter ranks in his storied career. "Obviously on a dollar
scale it's right at the top," Boies told us. "It's the biggest antitrust
recovery in history and I think probably the largest recovery by any single
plaintiff for any case in history."
We can't argue with that, so we give
our Litigator of the Week honors to Boies and Flexner. But we wondered if the
generous contingency fee coming their way--The Am Law Daily's Susan Beck
estimated the firm's AmEx payout to be around $190 million--might spur the Boies
Schiller name partners, both 67 years old, to early retirement. "Not yet," Boies
said. Nor for anyone else at the firm either: "I think right now people are
looking forward to a weekend of celebrations. We didn't have any exits after
Visa and I don't think we'll have any exodus now. You tend to be compulsive
about it."
We'd be remiss not to mention our runner-up for Litigator of
the Week honors: Exxon Mobil's lead outside attorney, O'Melveny & Myers
partner John Daum. Daum led the briefing and argument in the Supreme Court for
Exxon in its appeal of the punitive damages award in the Valdez oil spill case.
On Wednesday the justices offered new reasoning on punitive damages--and slashed
Exxon's punies from $5 billion to about $500 million ($995 million with
interest).
MALPRACTICE
Kaye
Scholer Hit With Malpractice Claim
As any
litigator in the computer age knows, handling sweeping discovery requests is
something like playing with a loaded gun. Make a mistake and you're liable to
shoot yourself or your client in the foot (or someplace even worse). Here's a
case in point: Yesterday Kaye
Scholer was hit with a malpractice suit for alleged discovery errors in an
antitrust case. According to The New York Law Journal, Kaye Scholer
defended the chemicals and plastics company Celanese in a North Carolina
antitrust suit brought by Celanese's customers. In June 2006, the judge in the
case sanctioned Celanse $114,000 for failing to produce hundreds of thousands of
documents to the plaintiffs. Celanese blamed Kaye Scholer and promptly fired the
firm. The company later settled the antitrust suit for $107 million.
Now
it's claiming that it was forced to settle because of the sanctions order. In
the malpractice complaint, Celanese, represented by Kasowitz, Benson, names Kaye
Scholer executive committee member Michael Blechman and former special counsel
Robert Bernstein. Kaye Scholer wouldn't comment on the suit, but it apparently
didn't come as a surprise: Last week the firm filed a suit against Celanese for
unpaid legal bills and a declaration that its work was sound.
CORPORATE
It's
Official: Delaware Suit Means InBev's $46 Billion Bid for Anheuser-Busch Has
Gone Hostile
Leave it to
others to talk about InBev versus Anheuser-Busch, the forces of globalization
versus a struggling American icon, Stella versus Bud. Here at the Litigation
Daily, this red-hot takeover battle is all about S&C versus Skadden Arps.
Yesterday InBev's Sullivan & Cromwell lawyers--David Tulchin and Brian
Frawley--filed a suit
against A-B in Delaware Chancery Court, seeking to remove its 13 board
members in what amounts to a hostile takeover manuever. We're expecting A-B's
deal counsel, Skadden, to soon be making an appearance in the suit. We're told
that Busch will be represented in Wilmington by Ed Welch, who apparently does
not sleep. Here's a partial list of Welch's docket: Yahoo! in shareholder
litigation; Wrigley in the Mars acquisition; MBNA in the Third Circuit;
Coca-Cola, Activision, Calpine, Countrywide in various Delaware matters. As The
Am Law Daily advised, someone give that man a beer!
COMMERCIAL
Who
Will Represent Countrywide in AG Lawsuits?
When Bank of
America and Countrywide complete their merger on July 1, the two companies will
be bringing all of their legal troubles under one roof. The extensive docket
will include two high-profile suits filed this week against Countrywide by the
AGs of Illinois and California. Will one firm emerge as the combined company's
preferred counsel? As the Am Law Daily reports, B of A
general counsel David Onorato likes O'Melveny & Myers, a firm that's
appeared 80 times for the bank in federal suits, according to Westlaw. But
Goodwin Procter has appeared for Countrywide in 50 stock-drop cases and 20 class
actions. Goodwin and Countrywide aren't commenting, but it's worth noting that
O'Melveny is already representing Bank of America as an interested party in at
least one securities class action against Countrywide, Snyder v. Countrywide,
filed in federal district court in Los Angeles.
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