Kasowitz Takes Aims at Insurers for MBIA Legal Fees

Kasowitz Takes Aims at Insurers for MBIA Legal Fees Photo by Rick Kopstein Marc E. Kasowitz

Kasowitz, Benson, Torres & Friedman guided MBIA Inc. through many of its legal battles stemming from the financial crisis. Can the firm now help MBIA recoup millions of dollars in legal fees from its insurers?

MBIA sued a trio of insurers—Certain Underwriters at Lloyd’s of London, Lexington Insurance Company, and Wirrtembergische Versicherung AG—on Friday in U.S. district court in Manhattan. The complaint, filed by Kasowitz Benson’s Robin Cohen. alleges that the insurers are liable for breach of contract because they’ve refused to cover legal costs incurred by MBIA in recent years, including “tens of millions of dollars” spent in a high-profile court fight over MBIA’s 2009 restructuring.

Since 1973, MBIA has provided financial guaranty insurance to investors in municipal bonds. MBIA later began insuring collateralized debt obligations and other financial products cooked up during the mortgage boom. In the wake of the subprime meltdown in 2007 and 2008, MBIA was stuck covering investor losses. With the approval of New York’s insurance regulator, MBIA spun off its older, healthier municipal insurance business into National Public Finance Guarantee Corporation in 2009, leaving behind its troubled structured finance division under the MBIA name.

Plenty of litigation has plagued MBIA since the economic downturn. Beginning in 2008, municipal governments sued the company, alleging that it required them to buy worthless bond insurance. Municipalities also brought suits alleging that MBIA and other financial institutions fixed the price of municipal derivatives. And 18 leading financial institutions, including Bank of America Corporation, sued MBIA over its restructuring, alleging that it was a fraudulent conveyance intended to shield assets from claimants.

MBIA has settled some of those cases and prevailed in others. Its most notable victory was a March 2013 ruling from a New York judge that the restructuring was lawful. By the time the ruling came down, BofA and Societe Generale SA were the only remaining defendants, and both settled instead of pursuing further appeals. Kasowitz Benson chairman Marc Kasowitz represented MBIA in the restructuring litigation. (See some of our prior coverage here, here and here.)

In Friday’s complaint, MBIA argues that it was entitled to up-front lump payments from the insurers to cover its enormous legal fees. According to MBIA, the underwriters stalled, arguing that they weren’t required to pay up until the cases concluded. Now that MBIA has reached settlements or won favorable rulings, the underwriters are refusing to pay “on the supposed basis that they are not obligated to pay MBIA on any underlying claim until all related underlying claims, including separately litigated lawsuits that were filed years after the initial lawsuits, have been resolved.”

A Lexington Insurance spokesperson didn’t return an email seeking comment.

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