Barclays Plc is set to defend itself against Lehman Brothers Holdings Inc.’s claim that it should pay as much as $11 billion after allegedly making an undisclosed “windfall” on its purchase of bankrupt Lehman’s brokerage.
The bench trial resuming today before U.S. Bankruptcy Judge James Peck in Manhattan after a summer holiday pits the U.K.’s third-biggest bank, represented by lawyer David Boies, against Lehman, which filed the biggest bankruptcy in U.S. history in September 2008 and wants money from Barclays to pay creditors.
The money would help Lehman creditors, who may recoup only 15 cents to 44 cents on the dollar, Lehman has said, and hurt Barclays, which made 2.4 billion pounds ($3.7 billion) in the first half. The judge may encourage a settlement to avoid undoing a sale he approved, with Barclays paying less than it risks in a court-ordered judgment, contract experts said.
“Peck might signal to Lehman and Barclays that he very much wants this settled,” said bankruptcy-law professor Lynn LoPucki, who teaches at Harvard Law School. “Judges have ways of pressuring lawyers and litigants to settle.”
Under U.S. Bankruptcy Judge Arthur Gonzalez, Enron Corp. creditors seeking $20 billion from Citigroup Inc. settled for $1.7 billion in 2008; Citigroup also waived claims on Enron.
Peck approved the brokerage deal within a week of Lehman’s Sept. 15, 2008, Chapter 11 filing as the subprime meltdown threatened credit markets. Lehman, its creditors and the brokerage trustee James Giddens sued Barclays last November as markets rebounded.
Lawyers for Lehman spent three weeks questioning witnesses including Barclays Chief Executive Officer John Varley in an effort to show that the bank raided Lehman’s assets before the deal closed and didn’t tell the judge.
Lehman said Barclays made $5 billion of “secret” profit on a portfolio of securities it took on with the brokerage, and another $6 billion by writing up business assets, skimping on promised payments and “grabbing” money in margin accounts and clearance boxes.
Barclays said Lehman’s advisers signed all the documents disclosing the transfers and didn’t object at the time. The trial broke off June 25.
Barclays will call witnesses who worked on the Lehman deal: Mark Shapiro, a Lehman restructuring expert now with Barclays; Stephen King, a former Barclays trading executive; Gary Romain, an accounting specialist at Barclays, and lawyers from Cleary Gottlieb Steen & Hamilton LLP.
The cases are In re Lehman Brothers Holdings Inc., 08- 13555, and Giddens v. Barclays Capital Inc., 09-01732, U.S. Bankruptcy Court, Southern District of New York (Manhattan).
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N.Y. State’s DiNapoli Reserves Right to Sue Lehman Executives
New York State Comptroller Thomas DiNapoli, who urged the appointment of Lehman Brothers Holdings Inc. examiner Anton Valukas to investigate fraud or mismanagement by Lehman managers, said the $132.5 billion state retirement fund reserved its “potential right to undertake appropriate actions to recover the losses it sustained from its investments” in the bankrupt investment bank.
The New York State Common Retirement Fund lost $216.3 million over three years after it sold Lehman shares, which traded as high as $82 each in 2007, at 14 cents to 30 cents a share after the September 2008 bankruptcy, according to a court filing Aug. 19.
DiNapoli made the filing to object to Lehman’s disallowal of the fund’s claim.
Bank of America’s Lewis Asks Judge to Throw Out Cuomo Lawsuit
Bank of America Corp.’s former Chief Executive Officer Kenneth Lewis asked a judge to throw out the New York attorney general’s lawsuit accusing him of fraud when he led the bank’s purchase of Merrill Lynch & Co.
The allegations by Attorney General Andrew Cuomo are “implausible,” Lewis’s lawyers said in documents filed Aug. 18 with the state Supreme Court in Manhattan. The Merrill Lynch acquisition, they said, has been proven to be of “major financial benefit to shareholders.”
“Some have looked to assign blame for every aspect of the financial crisis, even where there is no evidence of misconduct,” Lewis’s lawyers said. “This case is a product of that dynamic and does not withstand either legal or factual scrutiny.”
Cuomo sued Lewis, Bank of America and former Chief Financial Officer Joe Price in February, accusing them of misleading investors by failing to disclose losses at Merrill Lynch. The complaint also claims they manipulated the federal government into saving the deal with a taxpayer-financed bailout.
In a separate court filing on Aug. 18, Bank of America said Cuomo’s claims have no legal basis and are barred. Price, who is now the Bank of America’s head of consumer banking, also asked for a dismissal of the lawsuit.
The case is People of State of New York v. Bank of America, 450115-2010, State Supreme Court (Manhattan).
BP Well Manager Said No Warning of Blowout Before Disaster
BP Plc’s senior manager on the Deepwater Horizon rig saw no indications that natural gas was surging up a pipe before the explosion that set off the biggest U.S. oil spill, according to notes from an internal inquiry, Bloomberg News’ Joe Carroll and Jim Snyder report.
Donald Vidrine, BP’s well-site leader aboard the rig in the Gulf of Mexico on the night of the catastrophe that killed 11 workers, told company representatives conducting the probe that a BP engineer in Houston and employees of rig owner Transocean Ltd. assured him everything was normal during tests conducted shortly before the blast.
The five pages of interview notes, gathered by BP investigators seven days after the blowout, were obtained from a person with access to the information who asked not to be identified because the document hadn’t been made public. The notes provide a first indication of what Vidrine witnessed on April 20 as he and a Transocean crew worked to finish the well about 40 miles (64 kilometers) off the Louisiana coast.
In the hours before the disaster, Vidrine sought guidance from Mark Hafle, a drilling engineer in BP’s Houston office, about an unusual pressure reading in the pipe that connected the floating rig to the well, according to the interview notes, which weren’t a verbatim transcript.
Vidrine was watching out for any signs of kicks, surges of gas from below the seafloor that can endanger a crew and rig.
Hafle “said that if there had been a kick in the well we would have seen it,” Vidrine told company investigators, according to the notes.
The April 20 explosion sank a $365 million rig, shut down deep-water exploration in the Gulf of Mexico, and wiped out more than $45 billion in the market value of London-based BP.
Vidrine’s lawyer, Robert Habans, didn’t return a telephone message left Aug. 19 at his Baton Rouge, Louisiana, office.
Elizabeth Ashford, a spokeswoman representing BP, declined to comment on the interview notes.
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Singapore Considers Using Facebook to Improve Civil Litigation
The Singapore High Court may allow lawyers to exchange documents on social media sites like Facebook Inc.’s or use them to inform litigants of civil judgments and filings.
The proposals are part of a consultation paper the court is circulating for public comment.
Singapore’s proposal of using social media to complement traditional steps in the litigation process comes after courts in the U.K., Australia and New Zealand have allowed Facebook and Twitter Inc. to be used to deliver some documents. The rising popularity of social media also prompted the study, according to a consultation paper on the Singapore High Court’s website.
The use of social media “is a phenomenon that has become virtually impossible to ignore,” the Singapore court said in the paper. “Given that other jurisdictions have used social media effectively for substituted service of documents, there is no reason why we should not consider doing so.”
The Southeast Asian city, which has already consulted the law society, is seeking comments from the public until Sept. 15.
AU Optronics Chief Executive Officer Barred From Leaving U.S.
AU Optronics Corp., Taiwan’s second-largest maker of liquid-crystal displays, said Chief Executive Officer Lai-Juh Chen and the company’s vice chairman have been barred from leaving the U.S. to face price-fixing charges.
Chen denies the allegations, as do Vice Chairman H.B. Chen and former executive Hui Hsiung, who have also been required to remain in the U.S. to face the charges, Yawen Hsiao, a spokeswoman at Hsinchu-based AU Optronics, said by phone today. Hsiung is currently president of electronics maker Qisda Corp.
AU Optronics and six executives were indicted in the U.S. in June for their alleged roles in a conspiracy to fix prices of LCDs used in televisions and computer monitors. The case builds on an industrywide probe that prosecutors say has led to more than $890 million in fines, seven companies pleading guilty and jail terms for nine executives.
“The case which AUO is caught up in has already been settled by most of the others, so now the attention is on them,” said Jeffrey Toder, who rates AU Optronics shares “buy” at RBS Asia Ltd. in Taipei.
Taiwan Premier Wu Den-yih today told the foreign ministry, economics ministry, justice ministry and other departments to meet and discuss how it can help AU executives.
The case is of relevance to Taiwan’s industry and trade, and a process should be adopted to safeguard the nation’s people and industries, Wu said in an e-mailed statement.
The executives at AU Optronics agreed to fix prices at meetings and issued quotes to buyers based on the agreed-upon prices from 2001 to 2006, according to U.S. prosecutors. AU Optronics was the world’s third-largest LCD maker and Taiwan’s biggest panel producer during the period under investigation.
In November 2008, LG Display Co., Chunghwa Picture Tubes Ltd. and Sharp Corp. agreed to plead guilty and pay a total of $585 million in fines. Chi Mei Optoelectronics Corp. pleaded guilty in December and agreed to pay $220 million in fines.
Chi Mei merged with Innolux Display Corp. on March 18 to form Chimei Innolux Corp., Taiwan’s biggest maker of LCDs used in televisions, computers and mobile phones.
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Merck Sues Impax Over Generic Copy of Vytorin Cholesterol Drug
Impax, based in Hayward, California, is seeking U.S. Food and Drug Administration approval to sell a copy of Vytorin. Merck and its Schering-Plough unit sought to block approval by filing a patent-infringement lawsuit Aug. 19 in federal court in New Jersey, Impax said in a statement Aug. 20.
Merck acquired full rights to Vytorin with its $50 billion purchase of Schering-Plough Corp. last year. Global 2009 sales of the drug were $2.1 billion, Whitehouse Station, New Jersey- based Merck said Feb. 16. Vytorin combines the compound ezetimibe that’s in Merck’s Zetia with simvastatin, the active ingredient in Zocor.
Merck has also sued Mylan Inc. and Teva Pharmaceutical Industries Ltd., the world’s biggest generic-drug maker, to prevent them from selling a copy of Vytorin until a patent expires in 2017.
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Lukoil to Receive $438 Million in Kazakh Settlement
OAO Lukoil, Russia’s second-largest oil producer, will receive about $438 million to help end an ownership dispute that arose when China National Petroleum Corp. bought its partner a Kazakh oil venture in 2005.
PetroKazakhstan Inc. and Lukoil will each retain their 50 percent stakes in the venture, Turgai Petroleum, state-run KazMunaiGas Exploration Production said Aug. 20 in a statement. KazMunaiGas owns PetroKazakhstan with CNPC.
Lukoil made a rival bid to buy PetroKazakhstan five years ago as Russia and China jostled for access to Central Asia’s energy resources. Lukoil sought to exercise a right of first refusal to buy PetroKazakhstan out of Turgai in 2008, saying CNPC wasn’t offering it acceptable projects as an alternative.
“This allows Lukoil to avoid problems in Kazakhstan and they get an inflow of real cash,” Pavel Sorokin, an oil and gas analyst for Alfa Bank, said by telephone Aug. 20.
The agreement, signed Aug. 16 in Moscow, gives Lukoil the right to dividends from Turgai, which it hadn’t received since 2008, a Lukoil spokesman, who declined to be identified citing company policy, said by phone from Moscow Aug. 20. KazMunaiGas EP said it also may get a portion of dividends, which were halted during the arbitration period, through its stake in PetroKazakhstan.
Vivendi, Teleperformance Lose Labor Court Ruling, Le Monde Says
A French labor court in Toulouse ruled Vivendi SA and Teleperformance improperly pushed workers to accept buy-outs after the sale of an SFR customer service unit to Teleperformance, Le Monde said Aug. 20.
The companies, which have appealed the July 6 verdict, were ordered to pay workers as much as 40,000 euros ($50,763), the newspaper said. Most of the workers involved had taken voluntary severance packages.
Spokesmen for Teleperformance and SFR didn’t return Bloomberg News calls for comment.
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On the Docket
Stuyvesant Town Foreclosure Postponed Until Sept. 2
A New York judge halted a foreclosure auction planned for next week on Stuyvesant Town-Peter Cooper Village, Manhattan’s biggest apartment complex, as creditors wrangle for control of the property.
A hearing will take place Sept. 2 on how to proceed, according to a statement Aug. 19 from CWCapital Asset Management LLC, the special servicer for the senior mortgage on the property. Bill Ackman’s Pershing Square Capital Management LP and Winthrop Realty Trust had scheduled an Aug. 25 foreclosure auction after buying $300 million in defaulted mezzanine debt.
Senior lenders, who had been given permission to foreclose in June, also agreed not to initiate an auction before the hearing, according to an e-mailed statement from Pershing and Winthrop. The two companies want to take control of the complex under a plan that the senior mortgage holders claim will put the 80-acre property in bankruptcy.
Bank of America Corp. and U.S. Bancorp, trustees for holders of the $3 billion senior mortgage, sued to stop the venture’s foreclosure Aug. 18. The complaint, filed in the New York state Supreme Court in Manhattan, claims the Pershing and Winthrop plan violates terms of an existing agreement among creditors. New York State Supreme Court Justice Richard Lowe is overseeing the case.
The case is Bank of America Corp. v. PSW NYC LLC, 10- 651293, New York State Supreme Court in Manhattan (New York County).
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UBS Oil Reports Lawsuit Most Popular Docket on Bloomberg
A lawsuit alleging UBS AG’s U.K. unit copied articles from oil and gas publications and reprinted them in the investment research it distributed to clients was the most-read litigation docket on the Bloomberg Law system last week.
Energy Intelligence Group Inc., based in New York, said its publications, which include International Oil Daily, World Gas Intelligence and Petroleum Intelligence Weekly, were copied by UBS Ltd. at least 10 times during 2006 and 2007, according to the lawsuit. Energy Intelligence articles or portions of them were reprinted in UBS’s own investment research publication, Daily Oil News, according to the suit filed in a London court last month and made public last week.
The case is Energy Intelligence Group v. UBS Ltd., case no. HC10C02381, High Court of Justice, Chancery Division (London).
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