TD Bank was given a 30-day reprieve on whether the bank should face punitive damages in a lawsuit by victims of Scott Rothstein’s Ponzi scheme.
Broward Circuit Judge Jeffrey Streitfeld appeared willing to hear argument on some issues but made it clear to TD Bank’s attorney Friday that there would not be any extensive discovery before he decided.
In a lawsuit filed Nov. 21, Fort Lauderdale attorney William Scherer of Conrad & Scherer sued on behalf of 37 individual and company investors who claimed a loss of $72 million.
The lawsuit is the first to point to jury findings last January from the Coquina Investments LLC trial in Miami federal court that TD Bank aided and abetted the disgraced Fort Lauderdale attorney in ways that helped the fraud scheme grow and sustain itself far beyond what would have been possible without the bank lending its credibility.
TD Bank was Rothstein’s primary bank as he ran his fraud through his law firm, Rothstein Rosenfeldt Adler.
The Coquina jury awarded $32 million in compensatory damages and $35 million in punitive damages.
Bank attorney Wen Hutchinson, a partner in the Charlotte, North Carolina, office of McGuireWoods, said it was premature for Scherer to try to include punitive damages because he has not shown each plaintiff suffered actual losses as a result of the alleged actions of TD Bank employees.
“We cannot present evidence to oppose since this is prior to discovery,” Hutchinson continued.
He sought to depose each investor and suggested there should be an evidentiary hearing. However, Scherer noted Streitfeld had extensive knowledge of the issues since much of the evidence came before him in claims by Razorback Funding LLC against TD Bank and Gibraltar Private Bank & Trust.
Both lawsuits were handled by Scherer’s firm and Kozyak Tropin & Throckmorton in Coral Gables and settled in early 2012.
“If you’re saying to me you want to conduct another evidentiary hearing, that’s not a good use of the court’s time,” Streitfeld told Hutchinson.
Streitfeld told Scherer, however, that he would have to submit a brief that better described how each plaintiff was injured by TD Bank’s conduct. Scherer was given 10 days to do so, and TD Bank was given an additional 20 days to respond.
Again, Hutchinson said he would not have enough time to depose the plaintiffs before the deadline.
“And I don’t think you’ll need to rule on this motion,” Streitfeld responded.
While the judge indicated he was willing to rely on what was already in the court record for much of what he should consider on the motion, he raised one issue as novel — whether TD Bank had already paid sufficient punitive damages based on the Coquina verdict.
Scherer said it was within Streitfeld’s discretion to conclude the Coquina award, which is on appeal, was insufficient given the gravity of TD Bank’s behavior.
TD Bank officers knew or should have known Rothstein’s law firm was making transactions far in excess of its assets and concluded rampant money laundering was taking place, the lawsuit contended.
Also, its officers produced letters on bank letterhead and participated in joint investor pitches with Rothstein functionaries to give investors the impression that the settlement financing on offer was a secure investment, even though it relied on non-existent lawsuits.
Rothstein’s law firm is in bankruptcy, and the disbarred attorney is serving a 50-year sentence in federal prison.