Aurelius released a Dec. 21 letter from Kasowitz, in which Kasowitz accused Ichel and Aurelius chairman Mark Brodsky of breaking state law by telling American Lawyer alum Alison Frankel of Reuters and a Bloomberg reporter that MBIA’s settlements with banks that held structured finance policies illustrated the bond insurer’s precarious financial situation. (Ichel made a similar statement to the Litigation Daily last month, after MBIA reached a settlement with Morgan Stanley.) “These statements violate, among other things, New York Insurance Law Section 2604, which prohibits willful false statements concerning the financial conditions of insurance companies,” Kasowitz wrote. He demanded that Ichel and Brodsky “immediately cease and desist from making any such false and derogatory statements concerning MBIA.”
Ichel responded in a letter dated Dec. 22 that he found Kasowitz’s statements “offensive,” and he promised that if Kasowitz was “truly serious about attempting to chill further public commentary,” Aurelius would publish the letters. Now the hedge fund has done exactly that.
Here’s quick refresher for anyone who hasn’t been following the MBIA restructuring litigation: After MBIA won approval in February 2009 from New York’s insurance superintendent to transfer more than $5.4 billion in assets to a subsidiary, a group of hedge funds led by Aurelius and a squadron of banks that held structured finance policies with the insurer challenged the deal in state and federal court in New York. Both sets of plaintiffs alleged that the 2009 restructuring was a fraudulent conveyance that left MBIA unable to honor policyholders’ claims. Simpson Thacher represents Aurelius in the hedge funds’ Manhattan federal district court class action. Both the class action and the banks’ New York state court cases have been barreling forward since last June, when a state appellate court rejected MBIA’s contention that the deal could only be challenged in an administrative action against the insurance department.
In a statement released with the December letters on Wednesday, Aurelius rehashed its fraud claims against MBIA and accused the insurer of attempted intimidation. “In our experience, the first resort of wrongdoers is to fight transparency and censor their critics,” the fund said.
Marc Kasowitz referred us to his letter to Ichel when we reached him on Wednesday. Ichel told us that Aurelius’s case was proceeding with discovery and that the funds’ motion for class certification was pending. “We don’t expect to have any difficulty proving our case,” Ichel said.