Lawyers at Kaplan Fox & Kilsheimer had deposed Bank of America Corp. chief executive officer Brian Moynihan and submitted a jury questionnaire and verdict form in a high-profile securities case when both sides struck a settlement three weeks before trial. A big one.

"We were basically ready to go," said Robert Kaplan, whose 24-attorney firm was one of three that reached the $2.43 billion deal to resolve claims that bank directors and officers misled investors about the financial health of Merrill Lynch & Co. Inc. before it acquired that firm in 2008. The agreement, announced on September 28, was the largest securities class action settlement to emerge from the financial crisis. It is awaiting approval by U.S. District Judge Kevin Castel in New York.

The three plaintiffs’ firms, including Bernstein Litowitz Berger & Grossmann and Kessler Topaz Meltzer & Check, are seeking about $150 million in fees. Kaplan Fox had 10 attorneys on the case. "So this was a tremendous endeavor and a big commitment for us," Kaplan said.

Kaplan Fox, with 10 partners in its New York home office and one in San Francisco, specializes in complex securities, antitrust and consumer litigation. The firm, regularly appointed lead counsel in multidistrict litigation, has a single attorney of counsel each in Chicago; Los Angeles; Morristown, N.J.; and Washington. Kaplan has frequently been named among the top securities litigators in the country.

The firm is co-lead plaintiffs’ counsel in the securities litigation against the Federal National Mortgage Association (Fannie Mae) and its former executives. On August 30, 2012, U.S. District Judge Paul Crotty in New York upheld claims that added in March related to subprime and intermediate-risk "alt-A" mortgage loans, rejecting motions to dismiss brought by Fannie former chief executive officer Daniel Mudd and former chief risk officer Enrico Dallavecchia. Kaplan Fox is lead counsel for the preferred shareholders, while Labaton Sucharow and Berman DeValerio are lead counsel for stockholders. Kaplan said the case is being coordinated with a related case brought by the U.S. Securities and Exchange Commission.

The firm also has reached agreements in antitrust litigation against two dozen airlines accused of adding fuel surcharges to air cargo shipments. Kaplan Fox and co-counsel have obtained nearly $500 million in settlements, more than half of them during 2012. "We’re still litigating away, so hopefully we’ll have more," Kaplan said.

TRIAL TIPS
Assume every case is going to trial.
Prepare every case for trial.
Convince your adversary you’re prepared to try the case.
— Robert Kaplan, Kaplan Fox & Kilsheimer