Plaintiffs firms win some and lose some. For Bernstein Liebhard, an appellate loss against the auditors of a Bernard Madoff feeder-fund made a rare settlement for investors against the fund itself that much sweeter.
In August 2011, a New York federal judge approved an initial settlement of $100 million for investors against Tremont Group Holdings Inc., which funneled the largest sum into Madoff’s Ponzi scheme. The firm was lead counsel for the federal securities claims in the consolidated case, which also included state law and insurance claims. “Knowing how courts around the country have been analyzing and evaluating these claims, we were able to achieve an excellent result on behalf of investors,” said partner Jeff Haber.
“At the moment, no one else has recovered any money in any of the Madoff cases,” said Andrew Entwistle, managing partner of New York’s Entwistle & Cappucci, which with Hagens Berman Sobol Shapiro in Seattle were co-lead counsel on the state law claims.
That return came on the heels of the U.S. Court of Appeals for the Second Circuit’s dismissal in July of claims against KPMG LLP auditors accused of recklessly disregarding fraud at Tremont. That setback illustrated the “very difficult, very challenging set of rules that plaintiffs have to get over to succeed on a [securities] claim against an auditor,” Haber said.
In another shareholder victory, New York-based Bernstein Liebhard turned to the Delaware Court of Chancery to boost shareholders’ take on Apollo Group Inc.’s acquisition of water-park operator Great Wolf Resorts Inc. to $7.85 per share instead of $5 — a difference to shareholders of about $94 million. The litigation forced Great Wolf to lift standstill agreements with other potential bidders. “As we continued our efforts to unlock other bidders, ultimately that resulted in an agreement,” partner U. Seth Ottensoser said. New York firms Levi & Korsinsky and Pomerantz Grossman Hufford Dahlstrom & Gross served as co-counsel.
Looking ahead, the firm is co-counsel in a pending Southern District of New York case, Republic of Iraq v. ABB A.G., with Houston’s Maney & Gonzalez-Felix. The plaintiff, on behalf of the citizens of Iraq, alleges that dozens of multinational companies conspired with Iraqi officials to corrupt the United Nations’ oil-for-food program. From 1996 to 2003, the program allowed Iraq to use money from the sale of oil to buy food and other humanitarian supplies. “We understand how to deal with governmental intricacies. We just ratcheted up from dealing with 10 or 12 states to dealing with [representing] one country,” said partner Stanley Bernstein.