(Photo by Maggie Soladay)
Three former Dewey & LeBoeuf executives are asking a federal judge in Iowa to reconsider their request to put a civil suit by Aviva Life and Annuity Company on hold until a criminal case pending against them in New York is resolved.
In its suit filed in 2012, Aviva claims that it lost 45 percent of its $35 million investment in the now-defunct firm’s 2010 bond offering “as a result of false and misleading statements” by former Dewey chairman Steven Davis, former executive director Stephen DiCarmine and former chief financial officer Joel Sanders.
All three men are currently facing criminal charges in their roles leading up to Dewey’s bankruptcy in May 2012. They are accused of lying to auditors, investors, creditors and colleagues for four years about the financial condition of the firm.
The defendants originally filed a motion to dismiss Aviva’s suit in 2013, arguing that the insurer had no standing in the case because it sold off its securities to Sea Port Group Securities for $19.2 million in the same month that Dewey went under. U.S. District Court Judge James Gritzer denied their motion in May.
On Monday, lawyers for the three men asked Gritzer to either reconsider his ruling or allow it to be appealed.
“We ask the court to stay the proceedings until the conclusion of the criminal case because it would be manifestly unfair for the defendants to have to defend both cases simultaneously,” says Bryan Cave partner Mary Beth Buchanan, who is representing DiCarmine, in a phone interview Wednesday.
Buchanan says that to do otherwise would force the defendants to choose between preserving their Fifth Amendment right against self-incrimination and participating in the defense of the civil lawsuit, because the criminal trial in New York isn’t expected to get underway before January 2015, and both cases use some of the same evidence.
The office of Manhattan District Attorney Cyrus Vance, Jr. also filed a motion on Monday requesting a stay in the civil proceedings. It previously sought and received a stay in April for a suit filed by the U.S. Securities and Exchange Commission against Davis, DiCarmine and Sanders, along with former client relations manager Zachary Warren, for accounting fraud in connection with a $150 million bond issue.
Aviva, however, contends that its own suit has been delayed long enough and requested the judge to allow its case to move forward.
“There is no right of stay of a civil action merely because there is a criminal proceeding,” wrote the plaintiff’s’ attorney, Helen Michael of Kilpatrick Townsend & Stockton.