The Work

December 3, 2008 9:00 AM

The Am Law Litigation Daily: December 3, 2008

Posted by Ed Shanahan

Edited by Andrew Longstreth

Deutsche Bank to Trump: $40 Million, Please

Even the Donald claims not to be immune from this economic crisis. On November 6--the day before Trump was supposed to pay Deutsche Bank and his other lenders $330 million of the $640 million he borrowed for a high-rise hotel condominium project in Chicago--Trump filed a lawsuit in Queens County Court (which, incidentally, is not far from where the master of Mir-a-Lago grew up). In the complaint, Trump claimed that the world financial crisis constituted a "force majeure event" that should temporarily excuse him from repayment. He also lobbed a variety of claims at Deutsche Bank, including tortious interference, negligent misrepresentation, and breach of fiduciary duty. Trump's lawyers sought a temporary restraining order to extend the loan and a cool $3 billion for the damage he allegedly suffered as result of being in default.

But Trump's legal roll of the dice has come up snake eyes. Queens County Supreme Court justice Orin Kitzes denied his request for a TRO on the same day the suit was filed. Then Deutsche Bank, represented by Steven Molo of Shearman & Sterling, turned up the pressure, serving Trump with discovery requests and seeking to take his deposition. Trump later withdrew his motion for preliminary injunction; his lawyer, Steven Schlesinger of Jaspan Schlesinger in Queens, told us he took to heart Justice Kitzes's admonition that injunctions are not typically awarded in disputes over money.

Deutsche Bank hasn't forgiven Trump, however. Last week the bank filed a motion to dismiss the Queens suit. It also requested sanctions against Trump for filing a frivolous claim, and it moved for a $40 million summary judgment against Trump, asserting that the developer personally guaranteed that part of the loan. Deutsche Bank pointed out that Trump is good for the money, citing a recent article in The Scotsman in which Trump executives claim the tycoon's organization is sitting on £1 billion in cash. Trump is scheduled to answer Deutsche Bank's complaint on New Year's Eve. Happy New Year, Mr. Trump!

Sandy Litvack Discusses the Never-Filed Complaint Challenging the Never-Consummated Google-Yahoo! Ad Deal

Just how close was the government to filing a suit to block the proposed joint advertising agreement between Yahoo! and Google? Thisclose, according to Justice Department special antitrust counsel Sandy Litvack, who spoke yesterday about the case to Nate Raymond at The Am Law Daily. Litvack told Raymond that the announcement that the companies had abandoned the deal came a mere three hours before the Justice Department's antitrust division planned to file suit to block it. And what would the suit have looked like? Litvack, who rejoined Hogan & Hartson yesterday, said it would have argued that the deal violated Sections 1 and 2 of the Sherman Act.

"It would have ended up also alleging that Google had a monopoly and that [the advertising pact] would have furthered their monopoly," Litvack said.

Litvack candidly told Raymond that he regrets not being able to play a part in what would have been a historic antitrust case. "Of course I was looking forward to it," he said. "We felt pretty good about it, we felt pretty confident. Yeah, I would have like to have done it."

Florida Judge Gives Brother-in-Law of Jordanian King the Royal Treatment

For those of you who like nothing better than a meaty forum non conveniens dispute, we've got a good one. Back in April, H.E. Mohammad Anwar Farid Al-Saleh, brother-in-law to the King of Jordan, sued his business partners in an oil transport venture called International Oil Trade Center Co. Ltd. (IOTC Jordan). Al-Saleh's lawyers at Skadden, Arps, Slate, Meagher & Flom claimed that the Jordanian's partners defrauded him out of his share of the revenue from contracts to transport oil from the Gulf of Aqaba through Jordan to U.S. troops stationed in Iraq. Skadden filed the case in state court in Palm Beach County, where Al-Saleh owns property, and where the U.S. branch of IOTC is based.

One of Al-Saleh's business partners, a Floridian named Harry Sargeant III, argued that the case belonged in Jordan, noting that Skadden's complaint is full of references to Jordanian law. But last week Judge Robin Rosenberg of the Circuit Court for Palm Beach County rejected that reasoning and allowed Al-Saleh's suit to move forward. "As a preliminary matter, the Court notes that this case involves the somewhat unique situation in which the movants, Sargeant and IOTC USA, are objecting to their own home forum as being inconvenient," the judge wrote in a thorough 16-page order. Rosenberg determined that although Jordan was an appropriate alternative forum, neither private nor public interests favored Jordan over Palm Beach.

Skadden partner Jonathan Frank, who represents Al-Saleh, said it would have been difficult to proceed with his client's claim in Jordan given certain aspects of law there. We called Sargeant's counsel, Phillip Dye, Jr., of Vinson & Elkins, but didn't hear back.

Analyzing 'At-Risk' Drug Launches

For generic drug companies, litigation risk analysis is a way of life. And according to the December cover story in IP Law & Business (subscription required), when they launch a drug that is "at-risk," the generics have to be especially careful. (An at-risk drug is a product that is still the subject of Hatch-Waxman Act litigation.) If a company decides to launch a generic version of the drug and then loses the pending IP litigation, it can be looking at treble damages for willful infringement.

IP Law & Business writer Joe Mullin notes that the rise of at-risk drug launches reflects the increasing sophistication of the generic companies' legal analysis. "To launch at-risk, you not only have to do a careful analysis, you need to have great confidence that you'll ultimately prevail," Goodwin Procter attorney David Hashmall told IP Law & Business.

So far the risk has paid off for generics. Lawyers told Mullin that they're not aware of any case in which a generic company had to pay damages for an at-risk launch. But there are potential pitfalls lurking, including one case involving Bristol-Myers Squibb's blood thinner Plavix and AstraZeneca's heartburn drug Prilosec.

New York Judge Refuses to Dismiss Casino de Monte Carlo's Trademark Suit Against MGM

Despite our smooth use of that snake eyes simile in today's lead item, we're not big gamblers at the Litigation Daily. So for us, Casino de Monte Carlo's trademark suit against MGM Mirage was chock-a-block with fun facts. We didn't know, for example, that Monaco (where the Casino de Monte Carlo is located) is smaller than Central Park, or that the Casino de Monte Carlo has been in business since 1863.

But we digress. The Monaco casino, represented by Quinn Emanuel Urquhart Oliver & Hedges, claims that MGM, the parent company of the Monte Carlo Resort & Casino in Las Vegas, infringed its rights to the Monte Carlo mark. Last week Manhattan federal district court judge Harold Baer, Jr., denied a motion by MGM Mirage to dismiss the suit, ruling that the Monaco casino had sufficiently alleged infringement. Judge Baer also denied MGM's motion to transfer the case to its home turf in Las Vegas, where it would probably have better odds of winning. (And yes, the gambling reference was intentional.) MGM is represented by Michael McCue from Lewis and Roca.

Quinn Emanuel partner Robert Raskopf, who represented the casino in Monaco, is enjoying a run of good luck. Last month, after a bench trial before Maryland federal district court judge Marvin Garbis, Raskopf won a defense ruling for the Baltimore Ravens of the National Football League. The case was brought by the artist whose copyrighted drawing formerly appeared on the Ravens' helmets. The artist (who had previously won an infringement ruling against the Ravens, though no damages) sought a preliminary injunction against the use of the copyrighted image in historical depictions, such as highlight films and public displays of photographs featuring retired players wearing the old uniforms. In ruling for the Ravens, Judge Garbis found that such use is protected under the fair use doctrine.

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