Barclays Engages Boies, Schiller & Flexner to Defend Against U.S

The BSF Report Spring 2013

BSF Wins Historic Verdict in Antitrust Case against Chinese Vitamin C Cartel In the first-ever antitrust trial against limit production. The companies’ Chinese companies held in the United main defense was an unusual one: States, Boies, Schiller & Flexner won that the Chinese government a $54.1 million verdict – subject to mandated their conduct. trebling -- on March 14, 2013, in the Eastern District of New York. The eight- As Mr. Isaacson told The Wall Street person jury deliberated for just half a Journal, “This verdict shows that day before finding the companies liable companies in China are going to for fixing prices and limiting supply of have to play by the same rules as vitamin C in the U.S. Later that day, everybody else.” Judge Cogan entered final judgment of William Isaacson $162.3 million in damages for the class The landmark decision comes after of American buyers and distributors BSF negotiated a settlement with represented by the Firm. one defendant, in May 2012, for million. $10.5 million. This marked the During opening arguments in this first time a Chinese company was The trial team was led by William historic nine-day trial, BSF partner called to task for U.S. civil antitrust Isaacson and included partners William Isaacson told the court that claims and the first settlement of its Tanya Chutkan and counsel the Chinese vitamin C manufacturers kind. Two more defendants settled Jennifer Milici. Partner Alanna “struck a blow at our free enterprise on the tail end of the trial, shortly Rutherford and senior attorney system” by colluding to fix prices and before closing arguments, for $22.5 Melissa Willett also contributed.

Barclays Engages Boies, Schiller & Flexner to Defend Against U.S. LIBOR Class Actions At the fore- (EURIBOR). Ltd., et al. 12-3419 (filed April 30, front of liti- 2012)), and a securities fraud action gation relat- After settlements with British and pending before Judge Scheindlin in ing to the U.S. authorities, Barclays engaged the Southern District of New York London In- BSF to defend against follow-on (Gusinsky v. Barclays, PLC, 12-CV- terbank Of- lawsuits brought in the U.S., in- 5329 (S.D.N.Y.) (filed July 10, fered Rate cluding among other actions the 2012)). (LIBOR), more than twelve outstanding class Boies, Schill- actions relating to USD LIBOR The Firm previously handled a Jonathan Schiller er & Flexner that have been consolidated into closely-watched $13 billion case is represent- a Multi-District Litigation before (continued on page 10) ing Barclays in multiple class action Judge Buchwald of the Southern and direct action lawsuits brought in District of New York (In re Libor- Inside This Issue: the United States against the British Based Financial Instruments An- bank and other panel bank members titrust Litigation, 11-MD-02262 Litigation Highlights 1 in connection with their submissions (S.D.N.Y.)), an action regarding Corporate Highlights 6 to the bodies that set various inter- Yen LIBOR pending before Judge Honors & Distinctions 7 bank offered rates, such as LIBOR and Daniels in the Southern District of the Euro Interbank Offered Rate New York (Laydon v. Mizuho Bank, BSF In Brief 10 Spring 2013

Litigation Highlights $25 Billion Class Action and Derivative Action Allowed to Proceed Against U.S. Government for 2008 AIG Takeover bailout. without just compensation.

Starr brought the class action and In particular, Judge Wheeler found that derivative lawsuit seeking over the 79.9% of AIG’s equity (then valued $25 billion in damages against the by the government at $23 billion) that U.S. government resulting from the government obtained for $500,000 its use of insurance giant AIG to was not collateral for the government’s bail out other financial institu- loan to AIG and that the government did not have express authority or inci- tions in 2008 without providing David Boies dental powers justifying that acquisi- just compensation to AIG and tion. On July 2, 2012, Judge Thomas its shareholders for the assets that C. Wheeler denied the motion to were taken. Discovery has commenced and is pro- dismiss of defendant United States ceeding in that action, which is sched- of America in an action brought on Judge Wheeler found that the uled for trial in 2014. behalf of Starr International Com- Court had jurisdiction over those pany, Inc. by Boies, Schiller & Flex- claims, that Starr had standing The principal attorneys on the motion ner in the United States Court of to bring those claims, and that were Chairman David Boies; partners Federal Claims. The Court subse- Starr had adequately alleged its Robert Dwyer, Nicholas Gravante, quently certified two classes of AIG claims that the government had Jr., Hamish Hume, Samuel Kaplan, common shareholders on March taken property (including equity Duane Loft, Alanna Rutherford, and 11, 2013—an important step for interests, voting rights and other Robert Silver; counsel Eric Posner; and associates Julia Hamilton, Laura shareholders whose property was assets) from AIG and its share- Harris, Ilana Miller, Joshua Libling, taken and / or illegally exacted by holders (including Starr) either as and Luke Thara. the government as part of the 2008 an illegal exaction or as a taking SCOTUS Agrees to Hear Arguments in Historic Civil Rights Case for Same-Sex Marriage Equality On March 26 2013, the United eral Donald B. Verrilli, Jr. filed States Supreme Court will hear ar- an amicus brief on behalf of the gument in the landmark civil rights U.S. government on February case challenging California’s Prop- 28, 2013 in support of the case. osition 8, which stripped gays and The brief asserts that Proposition lesbians of the right to marry. The 8 violates the U.S. Constitution, case was brought by BSF Chair- a conclusion reached by judges at man David Boies and his one-time every level as this case has made its courtroom adversary, former Solic- way through the courts. itor General Theodore B. Olson on (L toR) David Boies and Theodore B. Olson behalf of the American Foundation In August 2010, Chief Judge for Equal Rights. Vaughn Walker of the Northern protection and due process. The ruling, District of California held that the which spanned 136 pages and included In a profound show of support for measure denied gays and lesbians 80 separate findings of fact, followed a marriage equality, Solicitor Gen- in California their rights to equal twelve-day trial in which Boies subjected (continued on page 9) Page 2 Spring 2013

Litigation Highlights Boies, Schiller & Flexner Secures Dismissal of Complaint against BNP Paribas and Expands Case against Bank of America Boies, Schiller & Flexner has scored securities unit of BNP Paribas; this another significant victory for BNP complaint was dismissed in a 39- Paribas in its securities negligence page opinion by Judge Robert W. suit against Bank of America. Sweet of the U.S. District Court in Manhattan on June 5, 2012. BNP Paribas has alleged that Bank of America failed in its duty to safe- The Court also granted BNP Paribas guard more than $480.7 million of permission to expand its existing cash and mortgages securing BNP lawsuit—already in discovery—to Paribas’s investment in Ocala Fund- pursue additional claims against Robin Henry ing, LLC, a mortgage warehousing Bank of America for its role in the Robin Henry, Motty Shulman and facility. loss of collateral intended to secure Jack Wilson along with associates BNP Paribas’ investment. Paul Fattaruso, Nathan Holcomb Bank of America attempted to shift and James Ostaszewski. blame for BNP Paribas’s loss to the This case is being handled by partners $80 Million Partial Settlement Negotiated by Boies, Schiller & Flexner for Madoff Feeder Fund Investors administrator and custodian will be distributed to investors, with an for hedge funds; GlobeOp, additional $30 million held in escrow and also a fund administrator; distributed if not used to resolve other and PricewaterhouseCoopers claims against the defendants. Netherlands and Canada, who were auditors of the funds. On Led by partners David Barrett and February 25, 2013, the case took Stuart Singer, this legal team includes an important step forward when partners Sashi Bach Boruchow, Carlos Stuart Singer Judge Victor Marrero in New York Sires, Howard Vickery; counsel Eli federal court granted plaintiffs’ Glasser and Olav Haazen; associates On behalf of a class of investors motion for class certification. Adam Deckinger, Susan Klock, and in Fairfield Greenwich Group, Josh Sheptow. the largest “feeder fund” group BSF filed one of the first feeder fund suits over four years ago for the Madoff Ponzi scheme, on behalf of over 100 Fairfield Boies, Schiller & Flexner reached investors. By defeating motions a settlement in which individual to dismiss in significant part and Fairfield partners, includingundertaking extensive discovery as founding partners Walter Noel, co-lead counsel, BSF created the Jeffrey Tucker and Andresopportunity for this settlement. Piedrahita, will pay $80 million. Subject to approval by Judge The litigation is continuing against Marrero, damages of $50 million Sashi Bach Boruchow Citco Group, the world’s largest (less attorneys’ fees and expenses)

Page 3 Spring 2013

Litigation Highlights Argentine Bondholders See Early Success after Bringing Boies, Schiller & Flexner into Complex Debt Litigation behalf of holders of bonds issued BSF successfully moved for a by Argentina in exchange for $80 stay of the injunction pending billion in defaulted sovereign debt. decision by the Court of Appeals.

The group, led by GramercyThe Exchange Bondholders Funds Management, entered previously agreed to accept less the litigation as an interested than 30 cents on the dollar of face non-party after an October 26, amount of their Argentine bonds, David Barrett 2012 ruling which approved in as part of an internationally- principle an injunction that could sanctioned restructuring of In a closely-watched international block Argentina from paying Argentina’s debt. The Exchange case, Boies, Schiller & Flexner interest on the exchange bonds Bondholders argue that the Chairman David Boies argued unless it also pays $1.3 billion injunction improperly imposes a on February 27, 2013 at a special to holdout investors that have new condition on their right to sitting of the U.S. Court of refused to accept the exchange receive interest payments solely for Appeals for the Second Circuit on offer. Shortly after being retained, the purpose of coercing Argentina (continued on page 5)

Successful Settlement Reached Quickly for Clothing Magnate and BSF Client Tory Burch Judge, Chancellor, Leo E. Strine, than Schiller, the case’s legal Jr., raised questions about the team was comprised of partners counterclaims the company had William Ohlemeyer, Courtney filed in response to Chris Burch’s Rockett and Jonathan Sherman, complaint. as well as counsel Rick Rohan, and associates Joseph Kroetsch, In the case, Ms. Burch alleged Daniel Bryan, Moshe Schwartz that Mr. Burch, a long-time Board and Wells Harrell. William Ohlemeyer member and a fiduciary of Tory Burch LLC, had breached his du- Tory Burch LLC engaged Boies, ties and violated his employment Schiller & Flexner to represent agreement by relying on the unique the Company and designer Tory and well-known Tory Burch brand Burch in Delaware Chancery and aesthetic to launch a compet- Court litigation initiated by Ms. ing fashion and furnishings busi- Burch’s former husband and ness. The case, which was sched- Tory Burch LLC shareholder, uled for trial in April 2013, was J. Christopher Burch. BSF was settled by the parties on December Jonathan Sherman retained in November, 2012, 31, 2012. after a widely publicized court hearing at which the presiding Led by Managing Partner Jona-

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Litigation Highlights Global Nutrition Company Herbalife Advised by BSF on Libelous Accusations

ife was the subject of a three-hour repeatedly stated and demonstrated presentation by Bill Ackman, of that it sells product not only to Pershing Square Capital, a multi- consumers unaffiliated with Herb- billion dollar hedge fund. In the alife, but also to its own distributors presentation, Ackman falsely ac- who themselves consume Herbalife cused Herbalife of being a pyramid products. It has reminded the mar- scheme because Herbalife markets ket that it is a 32 year old, publicly its products through direct sales traded company subject to a variety and because it compensates its sales of regulation and oversight. Courtney Rockett personnel (which Herbalife calls “distributors”) in part by paying The engagement is led by Manag- Herbalife has engaged Boies, Schil- them a percentage of the sales made ing Partner Jonathan Schiller, as- ler & Flexner in one of the most by distributors they have previously sisted by partners Bill Ohlemeyer, closely watched disputes in the fi- recruited to sell Herbalife products. Jonathan Sherman and Courtney nancial world this year. BSF rep- In leveling his accusations, Ackman Rockett. Other partners working resents Herbalife, Ltd., a leading admitted to the market that Persh- on the matter are Andrew Michael- global nutrition company, publicly ing was a “short seller” of Herbalife son, David Zifkin, Richard Weill traded on the New York Stock Ex- stock. As a short seller, Ackman and Jeremy Vest. Counsel Laurie change. Herbalife is a member of and Pershing Square benefit as the Josephs and Patrick Rohan are the Direct Selling Association, a Herbalife share price drops. also on the team, as are associates group of companies that sell prod- Joseph Kroetsch, Daniel Bryan, ucts directly to consumers through Herbalife denies Ackman’s allega- Jenny Vatrenko, Moshe Schwartz, independent distributors. tions and has hired the Firm to ad- Jon-Michael Dougherty, and vise on a variety of issues related to Wells Harrell. On December 20, 2012, Herbal- Ackman’s statements. Herbalife has

Argentine Bondholders, continued from page 4 (through the threat of default on counsel Brad Smith; and associates the exchange bonds) to pay the Bridget Brown, Karen Chesley, holdouts. This not only violates Juan Valdivieso, Gary Studen, fundamental principles of equity, David Ata, and Mathew Schutzer. but violates Fifth Amendment due process rights by taking private property for a private purpose.

BSF attorneys representing the Visit us on the web Exchange Bondholders include Chairman David Boies; partners www.bsfllp.com David Barrett, Steven Froot, and Nicholas Gravante, Jr.; Steven Froot

Page 5 Spring 2013

Corporate Highlights BSF Represents Yankees Entertainment & Sports Network in Sale of Equity Stake to News Corporation

and covered broadly by leading son Hill, as well as associates Russell media outlets. As part of the Franklin, Lidia Frenkel and Daniel transaction, the media rights Grossman worked on this deal. Part- agreement with the Yankees ners Mike Kosnitzky and Ivan Mitev will be extended and will keep of the Tax Group also contributed. Yankees baseball on the YES Network through 2042. The media rights agreement was approved by Major League Base- Richard Birns ball and the transaction closed BSF’s Corporate Group repre- in December 2012. After three sented Yankees Entertainment & years, News Corporation may Sports Network, which televises acquire an additional stake in New York Yankees baseball and the Network that could bring Brooklyn Nets basketball, as well its ownership to 80%, at which as other leading local and nation- time Yankee Global Enterpris- al sports-related programming, es would retain a significant in connection with the sale of a minority stake in the Network. Lidia Frenkel 49% equity stake to News Cor- poration. The transaction was an- Partners Richard Birns, Mike nounced on November 20, 2012 Huang, Robert Lia, and Ja-

BSF’s Corporate Group Negotiates Joint Venture Deal on behalf of NuStar NuStar Energy, an oil and gas inventory based credit facilities from pipeline and storage company, NuStar and a syndicate arranged in connection with the forma- by The Royal Bank of Canada. The tion of a joint venture with deal, which closed in September, Lindsay Goldberg, a New York will allow NuStar to deleverage and based private equity fund, re- focus on its core pipeline business. lating to NuStar’s asphalt re- finery business located in New Partners Jason Hill and Rob- Jersey and Georgia. NuStar ert Leung worked on this deal, contributed the asphalt busi- along with associates Michael Robert Leung ness into a new entity and Anastasio and Sean McFarlane. transferred 50% of the equity As reported by The Deal in June to Lindsay Goldberg for $175 2012, Boies, Schiller & Flexner’s million. The joint venture also Corporate Group represented obtained over $500 million in Sign up at [email protected]

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Honors & Distinctions BSF Chairman David Boies Presented with Highest Honors from Yale Law School and the American Bar Association Boies, Schiller & Flexner Chair- to all of our citizens and ultimate- man David Boies received two ly to every citizen in the world.” highly distinguished awards in Mr. Boies received the ABA 2012: Yale Law School’s top Medal along with Gibson Dunn’s honor, the Award of Merit, and Theodore Olson at the associa- the American Bar Association’s tion’s annual meeting in Toronto, greatest tribute, the ABA Medal. held August 4 – 9, 2011. The award, presented by outgoing Yale Law School dean Robert ABA president and BSF part- Post presented Mr. Boies with ner Steve Zack, was presented the Award of Merit at a lun- to the pair for their ongoing cheon October 20, 2012, refer- battle against California’s same- ring to Mr. Boies as a “trailblazing sex marriage ban, Proposition 8. lawyer,” “crystalline in his clar- ity and reasoning” and “a per- Upon receiving the award, Mr. fect model of integrity and tact.” Boies stated: “There is no greater honor that a lawyer can have but Upon accepting the award, Mr. to accept this award from [the Boies spoke of the practice of law ABA] because not only is this the as facilitating justice, which, he highest award that you give, but (L to R), BSF Partner Stephen Zack, BSF asserted, includes “what we do in Chairman David Boies, and former Solici- you are the best representatives of tor General Theodore B. Olson at the ABA our communities [and] what we the profession that we all love.” Awards presentation do in making justice truly available BSF Managing Partner Jonathan Schiller Awarded Columbia’s 2012 Alexander Hamilton Medal At an awards dinner in New York City in November 2012, BSF Managing Partner Jonathan D. Schiller, CC ’69, Law ’73, was honored with Columbia College’s 2012 Alexander Hamilton Medal. Mr. Schiller received the award—the highest given by the college—before an audience of nearly 350. As reported by the Columbia Spectator, University President Lee Bollinger told at- tendees that “every time you talk to Jona- than, you’re impressed.” “If you have to be a client in life—and nobody wants to be a client—you should have Jonathan Schil- ler as your lawyer, and as your friend.” Columbia Spectator quoted Firm Chairman Managing Partner Jonathan Schiller pictured at the podium giving his acceptance speech (continued on page 8) Page 7 Spring 2013

Honors & Distinctions

BSF and David Boies in Top Ranks of American Lawyer’s Litigation Department of the Year Award

the magazine chose three attorneys as litigators of the year, including BSF Chairman David Boies.

The publication’s feature story about the Firm, “A Galaxy of Bright Lights,” examines the litigation strategies and verdicts that led to BSF’s inclusion on this presti- gious list. Highlighted matters include the $1.3 billion jury verdict for Oracle Corp against SAP AG, Managing Partner Donald Flex- ner accepted the LDOY award on the defeat of $4.3 billion in charges Mr. Flexner pictured at the LDOY awards behalf of BSF dinner along with American Lawyer Re- porter Susan Beck The American Lawyer named Boi- brought by AIG against Starr Inter- es, Schiller & Flexner one of five national, and the civil rights fight finalists in the publication’s sixth for marriage equality in California. biennial “Litigation Department On April 18, 2012, The American of the Year” contest from a field Lawyer presented the awards to of over 70 firms who competed. all winners and finalists at a din- Firms were chosen based on liti- ner ceremony in New York City. gation successes achieved between Donald L. Flexner accepted the August 1, 2009 and July 31, 2011. “Litigator of the Year” award on behalf of Mr. Boies and the “Liti- The American Lawyer expanded the (L to R), Managing Partner Jonathan gation Department of the Year” fi- competition to include a “Litigator Schiller, Administrative Partner Stephen nalist award on behalf of the Firm. of the Year” category. In its debut, Zack and his wife Margarite

Jonathan Schiller - Alexander Hamilton Award, continued from page 7 David Boies, also in attendance, The Alexander Hamilton Award is as saying “Most of all, Mr. Schil- presented by the Columbia Col- ler is…a great advocate for people lege Alumni Association for distin- who do not have other advocates.” guished service and accomplish- Upon receiving the award, Mr. ment in any field of endeavor. It is Schiller stated, “Columbia—from considered the highest tribute that the time I first walked through the can be paid to a member of the gates, past the majestic architecture, Columbia College community. f and into my irst Lit Hum class— Mr. Schiller at the podium during has excited me and challenged me.” his acceptance speech

Page 8 Spring 2013

Honors & Distinctions

Nicholas Gravante, Jr. appointed to Departmental Disciplinary Committee for First Judicial Department

partment on January 18, 2013. by Lawdragon’s 500 Leading Lawyers in He was appointed to the post America and New York’s Best Lawyers. by Presiding Justice Luis Gon- In addition to his legal practice, Mr. zalez and the other Justices of Gravante serves as a member of the the First Department. The New Second Department Judicial Screening York Law Journal noted the ap- Committee, as vice-chair of the Brook- pointment in a page 1 story. lyn Public Library, and as a member of the boards of trustees for the Commu- Mr. Gravante, who serves as Ad- nity Service Society, Poly Prep Country ministrative Partner of BSF’s New Day School and ESS Sheltering Arms. York City office and also as Gen- eral Counsel to the Firm, is a trial Nicholas Gravante, Jr. lawyer who specializes in complex commercial and white collar crim- BSF Partner Nicholas Gravante, inal defense litigation. Mr. Gra- Jr. began a three year term on the vante has consistently been hon- Departmental Disciplinary Com- ored as one of the country’s top mittee for the First Judicial De- litigators, including for many years

SCOTUS / Same-Sex Marriage, continued from page 2 experts called by the Proponents opposite-sex couples.” of Proposition 8 to devastating cross-examination. In its opin- BSF was a party to a brief filed ion, the district court found that with the Supreme Court on the the Proponents’ experts lacked merits of the plaintiffs’ case on credibility and that their opin- February 21, 2013. Oral argu- ions were entitled to little or no ments in the case are scheduled weight. for March 26, and the Court is expected to issue a ruling by late The Ninth Circuit U.S. Court June. of Appeals upheld the district court’s ruling in favor of the In addition to David Boies, the plaintiffs on February 7, 2012. BSF team on the case includes The appellate opinion states that partners Jeremy Goldman, Ste- Proposition 8 “serves no pur- ven Holtzman, and Theodore A group of men celebrate on the step of City pose, and has no effect, other Uno, counsel Rosanne Baxter, Hall after learning a federal judge decision than to lessen the status and hu- Rick Bettan, Beko Reblitz- overturned California’s same-sex marriage ban man dignity of gays and lesbians Richardson, and Jarrod Reich, in San Francisco. (AP Photo/Eric Risberg) in California, and to officially and associates Meredith Dear- reclassify their relationships and born, Randall Ewing, Darien families as inferior to those of Meyer, and Josh Schiller.

Page 9 Spring 2013

BSF In Brief Singer and Carl Goldfarb sel Katherine Eskovitz and with a Distinguished Lay- associate David Michaels. man Award for their exten- • sive pro bono case against the The Caryl Louise Boies Me- state for its mismanaged Med- morial Foundation, “Cary’s icaid program for children. Kids,” held its first official • fundraiser October 19, 2012. Stephen Zack was hon- Nearly $28,000 was raised ored with the 2012 Juris- for needy children in Florida. prudence Award from the • Anti-Defamation League. BSF made its debut on • BTI Consulting Group’s David Boies chaired the “Fearsome Foursome” 2012 Committee to Pro- list of litigation firms most tect Journalists awards feared by in-house counsel. (L to R) BSF client Maurice ‘Hank’ Greenberg of Starr Interna- dinner at the Waldorf • tional with wife Mrs. M.R. Greenberg, BSF Chairman David Boies, and client Ed Breen of Tyco with wife Lynn Breen at the Hotel in New York City. BSF’s Miami office, headed Firm’s 15 year anniversary party. • up by Administrative Boies, Schiller & Flexner Partner and former ABA Boies, Schiller & Flexner celebrated its opened a Santa Monica office president Stephen Zack, 15th anniversary in the fall of 2012 with in May 2011, currently led by celebrates its ten year an event at Cipriani’s in New York City. five attorneys: partners Mi- anniversary in April 2013. • chael D. Jay, Kathleen Smal- The Florida Medical Association presented Stuart ley and David Zifkin; coun-

Barclays Libor, continued from page 1

David Boyd James Meadows

Lehman Estate’s $13 billion fraud Schiller and Chairman David claim and the Estate elected not to Boies, the attorneys working on pursue its appeal. In certain related LIBOR-related matters for Bar- (L to R), BSF attorneys Duane Loft, Camille David Boyd Oberkampf, and Juan Valdivieso in London contract disputes over assets trans- clays include partners , ferred in the sale, Barclays has been Mike Brille, Duane Loft, James against Barclays brought by Lehman Brothers awarded in excess of $6 billion; that Meadows, Andrew Michaelson, over the purchase of bankrupt entity’s North case is currently pending in the Sec- and Robert Silver; and associates American broker dealer unit at the height of ond Circuit Court of Appeals. Amos Friedland, Wells Harrell, the financial crisis. After a hard-fought trial in Ilana Miller, Leigh Nathanson, New York, the Bankruptcy Court rejected the Led by Managing Partner Jonathan and Andrew Villacastin. Page 10