BNY Mellon, Visa, Countrywide, Morgan Stanley in Court News
Bank of New York Mellon Corp. and federal prosecutors are close to settling some claims in a government lawsuit accusing the bank of overcharging customers for foreign-exchange trading, according to a court filing.
U.S. Attorney Preet Bharara in Manhattan requested a one- week extension for BNY Mellon to respond to the complaint because the two sides “are presently close to reaching an agreement that would resolve certain claims,” according to letter filed yesterday with U.S. District Judge Lewis A. Kaplan. The judge granted the request, according to the court docket.
Bharara sued New York-based BNY Mellon on Oct. 4, the same day the bank was sued by New York Attorney General Eric Schneiderman for allegedly defrauding public pension funds of $2 billion over 10 years. Attorneys general in Virginia and Florida and some California counties filed similar complaints.
The cases center on the pricing of small foreign-exchange transactions handled automatically by the custody banks on behalf of pension funds, a service known as standing instruction. In some of the cases the banks have said they acted as a principal, selling one currency for another in arms-length transactions at a set price that customers were free to accept or reject.
Kevin Heine, a spokesman for BNY Mellon, didn’t return a phone call or e-mail seeking comment on the government’s court filing after regular business hours.
The case is U.S. v. The Bank of New York Mellon Corp., 11-6969, U.S. District Court, Southern District of New York (Manhattan).
Park City Eatery Balks at Credit Card Fines in Rare Court Fight
Stephen and Cissy McComb say they managed their Italian eatery in Park City, Utah, for more than two decades without running afoul of security rules of Visa Inc. (V) and MasterCard Inc. (MA) -- until they were accused of mishandling data and opening the door to $1.26 million in fraud.
The McCombs, who opened Cisero’s in 1985, are now in a legal fight with the bank that processed their credit charges and, indirectly, with what they say are card networks that change rules without notice, impose unfair one-sided contracts and allow the taking of money from merchants’ accounts with no proof of fault, Bloomberg News’s Thom Weidlich reports.
The couple sued, saying they didn’t break MasterCard and Visa rules, that there was no security lapse and that no acts of fraud were specifically claimed. The fraud was conjured from unexplained and unsupported data, they said in court papers filed in state court in Park City. Their suit may be the first court challenge to penalties under the card networks’ security procedures, said one of their lawyers, W. Stephen Cannon.
US Bancorp is a middleman in Cisero’s credit business, out of sight of customers who may be aware only of Visa, MasterCard and the banks that issue the cards.
As the so-called acquiring bank, US Bank provided Cisero’s with access to payment networks and maintained an account from which it paid the restaurant for credit-card purchases, the McCombs said. Elavon processed the payments.
Teri Charest, a spokeswoman for US Bancorp, said in an e- mail that the bank denied any liability will fight the lawsuit.
Denise Dunckel, a spokeswoman for San Francisco-based Visa, and James Issokson, a spokesman for Purchase, New York-based MasterCard, declined to comment on the lawsuit. Their companies aren’t defendants in the case.
The case is Elavon Inc. v. Cisero’s Inc., 100500480, Utah Third Judicial District Court, Summit County (Park City).
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Wall Street Groups Seek Delay of CFTC Position Limits Rule
Two Wall Street groups asked a federal appeals court to delay a U.S. Commodity Futures Trading Commission rule that limits commodity speculation, saying the regulation is already imposing “irreversible harms.”
The International Swaps and Derivatives Association Inc. and Securities Industry and Financial Markets Association filed an emergency request yesterday in Washington urging a three- judge panel to put the rule on hold while the court considers their legal challenge. The groups asked the court to issue a ruling by Jan. 27.
“The rule will force market participants to forgo efficient trading strategies, impair their ability to hedge against risks, and potentially require them to restructure their businesses,” the groups said in the filing. “These costs will mount now absent a stay, and they would be impossible to recoup if the rule is invalidated -- as it likely will be.”
The groups, in one of the financial industry’s highest- profile efforts to weaken last year’s Dodd-Frank law, filed lawsuits challenging the rule in two federal courts in Washington last month.
They argue that the CFTC used a flawed analysis of Dodd- Frank when it decided to impose the restrictions. The associations also said the CFTC failed to properly weigh the rule’s costs and benefits.
In yesterday’s filing with the U.S. Court of Appeals, the groups argue that their challenge will likely succeed, noting that a majority of commissioners concluded the rule was unnecessary and would have rejected it “but for one commissioner’s mistaken view that Congress required it.”
They said the rule will impose costs on the economy because some companies may not invest in other companies as a way of avoiding the aggregation requirements.
Steven Adamske, a CFTC spokesman, declined to comment on the filing.
The case is International Swaps and Derivatives Association v. CFTC, 11-01491, U.S. Court of Appeals for the District of Columbia (Washington).
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Banks Blame Countrywide for U.K. Mortgage Losses in 97 Suits
Suninder Sandha bought his luxury apartment in Coleorton Hall, a 19th century country mansion near Leicester in central England, using a 1.2 million-pound loan ($1.86 million) from Barclays Plc (BARC) in 2005.
When the property market collapsed two years later, Sandha couldn’t make his mortgage payments and Barclays seized the apartment, selling it for 500,000 pounds. The lender has now sued Countrywide Plc (CWD), whose surveying unit valued it at the peak of the boom, for its losses, according to court papers, Bloomberg News’ Kit Chellel reports.
The suit is one of 38 filed last year in London’s High Court against Countrywide, the nation’s largest residential property broker, by lenders including Barclays, Lloyds Banking Group Plc (LLOY) and GMAC-RFC. That’s more claims than any of the four largest U.K. banks faced in 2011, according to data compiled by Bloomberg. As many as 97 lawsuits have been filed since 2007 against Countrywide, bought that year by private-equity firm Apollo Management LP.
“These banks have incurred huge losses and they are looking for someone to blame,” said Alexandra Anderson, a partner at law firm Reynolds Porter Chamberlain LLP representing surveyors including Countrywide. “Often the blame is themselves, and the lending practices they had.”
Countrywide, now also owned by Oaktree Capital Management LLC (OAKTRZ) and Alchemy Partners LLP, said in an e-mailed statement it had seen a considerable increase in professional negligence claims, particularly from now-defunct lenders.
“We will continue to defend our position when we believe we have fulfilled our responsibilities,” Countrywide said. “If an error is made, then we do seek to settle with claimants.”
The London company isn’t affiliated with Countrywide Financial Corp., the Calabasas, California-based subprime lender acquired by Bank of America Corp. in 2008.
Barclays spokeswoman Emma Austin declined to comment on its lawsuit. U.K. telephone directories online didn’t list an address for Sandha since he left Coleorton Hall and the lawsuit didn’t provide details of where he is now. Apollo spokesman Charles Zehren declined to comment.
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Clean Water Act Tool Used by EPA Questioned at High Court
U.S. Supreme Court justices voiced concern that the Environmental Protection Agency is overreaching in enforcing federal statutes, signaling that they may blunt a favorite agency enforcement tool.
Hearing arguments yesterday in a case involving an Idaho couple seeking to build a new home, the justices suggested they are likely to rule that people accused by federal regulators of violating environmental laws have a right to immediately take their case to a federal judge.
The case, which has with ramifications for energy companies and manufacturers, may weaken the EPA’s so-called administrative compliance orders. The agency issues as many as 3,000 such orders each year to businesses and individuals, demanding an end to alleged environmental violations and applying so much pressure that those accused typically give in before the agency has to justify the action before a judge.
The fight involves a 0.63-acre property near the banks of Priest Lake in northern Idaho. In 2007 Chantell and Michael Sackett had begun preparing the land to build a three-bedroom home, when EPA officials ordered work to halt. The agency said that the property was a wetland and that the Sacketts couldn’t build without obtaining a permit under the Clean Water Act.
The EPA then ordered the Sacketts to restore the land by removing piles of fill material and replanting the vegetation they had cleared. The written order threatened the couple with fines of as much as $32,500 a day.
The Sacketts contend they have a constitutional right to seek judicial review of that administrative compliance order right away. A federal appeals court said the couple had to wait until regulators sought to enforce the order by asking a federal court to impose a fine.
The Obama administration and the EPA argue that the couple has ample avenues short of going to court for contesting the order without risking fines. Among other options, the Sacketts could apply for a permit, the government said.
Justices from across the ideological spectrum yesterday questioned the adequacy of those options and the government’s contention that Congress didn’t authorize judicial review of administrative compliance orders.
The case is Sackett v. EPA, 10-1062, U.S. Supreme Court (Washington).
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Johnson & Johnson, which has lost judgments of almost $660 million over the marketing of its antipsychotic drug Risperdal, began a trial yesterday in which Texas is seeking damages of more than $1 billion.
State Attorney General Greg Abbott accused J&J of paying officials to get Risperdal on approved drug lists, marketing it for unapproved uses to children and the elderly, and lying about its effects. The case in state court in Austin was filed by a whistle-blower and joined by the state, which is seeking repayment of Medicaid payments.
Texas is asking for reimbursement of $579 million, said Tom Melsheimer, a lawyer for the whistle-blower. The amount could be tripled by jurors under state law. In addition, jurors will decide the number of violations and set a penalty of as much as $10,000 apiece, if the state wins.
“It’s going to be massive,” said Patrick Burns of the advocacy group Taxpayers Against Fraud. “They’ll lose in Texas, and then they’re going to face litigation from stockholders for failing to settle this.”
The result may be a record false-claims verdict, Burns said by phone from Washington.
A jury weighing only the claim that the company downplayed the drug’s risks awarded Louisiana $257.7 million in 2010. A judge in South Carolina last year ordered J&J to pay $327 million over Risperdal sold in the state.
J&J and its Janssen unit, which sold Risperdal, deny any wrongdoing.
“We are committed to ethical business practices, and have policies in place to ensure that our products are only promoted for their FDA-approved indication,” Teresa Mueller, a J&J spokeswoman, said in an e-mail. The company will fight the allegations, she said.
Jury selection in Austin started yesterday. The trial is scheduled to last about three weeks.
The case is State of Texas ex rel. Jones v. Janssen LP, D- 1GV-04-001288, District Court, Travis County, Texas (Austin).
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CVC Didn’t Know of F1 Payments to Gribkowsky, Court Told
CVC Capital Partner Ltd.’s managing partner told a Munich court he wasn’t informed about payments made to former Bayerische Landesbank Chief Risk Officer Gerhard Gribkowsky over the 2005 sale of Formula One racing.
Donald MacKenzie, who testified at Gribkowsky’s bribery trial in Munich yesterday, said he and CVC only heard about the issue when the German press reported it a year ago. MacKenzie said Formula One Chief Executive Officer Bernie Ecclestone first told him he didn’t know about the payments before explaining them at a Feb. 2 meeting.
Prosecutors charged Gribkowsky, who managed Munich-based BayernLB’s interest in Formula One, with accepting bribes, breach of trust and tax evasion. They claim he received $44 million in bribes to facilitate the sale of the bank’s 47 percent stake in Formula One to CVC.
Gribkowsky demanded $50 million from Ecclestone as a reward for consenting to the deal and threatened to disclose possible tax violations by the Bambino family trust run by Ecclestone’s wife at the time, prosecutors said. Gribkowsky denies the charges.
MacKenzie testified he wasn’t informed about a separate agreement under which Ecclestone would get $100 million. While it may have been a breach of the Formula One sales agreement not to disclose it, arrangements in which shareholders pay executives an incentive are common, said MacKenzie.
“Had I known about it at the time, I would have understood it,” he said. “We would have renegotiated the terms of the deal, though, and that would have delayed it.”
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MF Global U.K. Administrators Threaten Client Money Lawsuits
Administrators at MF Global Holdings Ltd (MFGLQ).’s U.K. unit said they have threatened to sue large financial institutions who were unwilling to release money they held for the failed broker’s clients.
Some companies “have a number of positions across the group and they are generally hesitant” to hand over unsegregated funds worth a total of more than 1 billion pounds ($1.5 billion), Richard Heis, the lead administrator at KPMG LLP, told MF Global clients and creditors at a meeting in London yesterday.
While administrators had encountered few problems persuading outside institutions to release segregated funds, which are protected, unsegregated accounts were tied up because of “legal arguments about potential set-off,” Heis said.
JPMorgan Chase & Co., Bank of New York Mellon Corp. (BK), Citigroup Inc. and LCH.Clearnet Group Ltd. were among the depository institutions holding cash and assets for MF Global customers, according to documents released by KPMG.
MF Global Holdings Ltd., based in New York, was the fifth- largest financial company to file for bankruptcy when it sought protection on Oct. 31 after making losing bets on European sovereign debt. KPMG was appointed to supervise the special administration of the broker’s London unit.
Spokesmen for JP Morgan, Citigroup, LCH and BNY Mellon declined to comment.
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Corzine Sued by Montana Farmers Over Futures Account Money
Jon Corzine, former chief executive officer of collapsed commodity brokerage MF Global Holdings Ltd. (MFGLQ), was sued for fraud by Montana farmers who claim he oversaw the misappropriation of their commodity trading account funds.
The lawsuit filed yesterday by three farmers and a cattle- raising operation in Montana seeks to represent a nationwide group of commodities futures customers whose money went missing amid the $41 billion bankruptcy of MF Global, parent of the futures brokerage that is being liquidated. A trustee is looking for $1.2 billion or more in money missing from commodity customers’ accounts.
Corzine, the former governor of New Jersey, and other executives at MF Global made “knowingly false statements” to induce the plaintiffs to enter into contracts with the brokerage, according to the complaint filed in federal court in Missoula, Montana.
The executives failed to disclose to customers that their money was used to finance MF Global’s bad bets on European sovereign debt, the farmers said in the complaint.
The lawsuit also names JPMorgan Chase & Co., MF Global’s clearing broker and custodian, as a defendant, alleging it failed to detect suspicious activity at the brokerage and aided and abetted in the fraud.
Corzine has said he doesn’t know where the missing money is and didn’t authorize any misuse of customer funds that may have occurred. Corzine is the defendant in at least nine lawsuits before a federal judge in Manhattan that seek compensation for losses from the company’s bankruptcy, according to court papers.
Mary Sedarat, a JPMorgan spokeswoman, declined to comment on the lawsuit. Steven Goldberg, a spokesman for Corzine, didn’t return an e-mail seeking comment about the complaint.
The case is Klinker v. JPMorgan Chase., 12-0005, U.S. District Court, District of Montana (Missoula).
Olympus Sues President, 18 Other Executives Over Fraud
The Japanese camera maker’s auditors filed the claims at the Tokyo District Court on Jan. 8, Olympus said in a statement yesterday. The company’s shares surged as much as 28 percent on investor optimism that it would keep its listing on the Tokyo Stock Exchange that had been under threat because of the fraud.
Olympus managers involved in the scheme to hide investment losses over more than a decade caused 86 billion yen ($1.1 billion) in damages to the company, according to the findings of an independent panel released yesterday. Former President Michael Woodford, who was fired after he challenged the board on takeover and accounting practices, is also taking legal action against the company over his dismissal.
“It’s all part of the natural fallout to be expected with each party trying to stake their positions and to protect their legal interests,” Eugene Tan, assistant professor of law at the Singapore Management University, said yesterday following Japanese media reports that the lawsuits had been filed. “We’ll see suits and countersuits taking place in the next couple of weeks, if not months.”
The company is seeking as much as 3.6 billion yen ($46.8 million) in damages from executives including ex-Chairman Tsuyoshi Kikukawa, it said. Takayama, who took over after Woodford, is being sued for as much as 500 million yen, the company said in a statement yesterday.
Former company auditor, Hideo Yamada, and Hisashi Mori, fired as executive director over his role, are being sued for 3.01 billion yen and 2.81 billion yen, respectively, it said.
Olympus spokesmen weren’t immediately available to comment, and repeated attempts since the scandal broke to contact officials involved, including visits to their homes, have failed.
The company inflated fees to advisers on the $2.1 billion acquisition of Gyrus Group Plc in 2008 and overpaid in purchasing three Japanese companies with the intention of increasing goodwill, the independent panel investigating the fraud said last month.
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Ex-CDR Financial Executives Plead Guilty in Fraud Case
Former CDR Financial Products Inc. Chief Financial Officer Z. Stewart Wolmark and Vice President Evan Zarefsky pleaded guilty in a multimillion dollar scheme to rig municipal bond investments.
The pleas yesterday before U.S. District Judge Victor Marrero in federal court in New York came a week before opening arguments were scheduled to be heard in a trial over alleged bid- and auction-rigging in the municipal bond market. CDR founder and former chief executive officer David Rubin and his Beverly Hills, California-based firm pleaded guilty on Dec. 30.
Wolmark, 56, admitted in court yesterday to manipulating bids during his tenure at CDR from 1998 to November 2006.
“During that period I participated with others in an agreement to allocate and rig bids,” he said. “I also knowingly participated in an agreement with others to manipulate the bids in return for inflated fees paid to CDR,” he said.
CDR was hired by public entities that issue municipal bonds to act as their broker and conduct what were to be competitive bidding process for contracts for the investment of municipal bond proceeds, according to prosecutors. Instead, CDR employees allegedly took kickbacks for running sham auctions for the investments.
Wolmark and Zarefsky, 37, each pleaded guilty to two counts of conspiracy and one count of wire fraud. They face as long as 35 years in prison on all counts, the judge said.
Zarefsky told Marrero that soon after he joined CDR in April 2000, he became involved in the conspiracy.
“I knew that it was wrong but then later I subsequently came to understand that it was unlawful,” Zarefsky said.
Sharis Pozen, Acting Assistant Attorney General in charge of the Justice Department’s Antitrust Division said, “Our investigation into the municipal bond derivatives industry has now led to guilty pleas by 12 financial executives and charges against six others.”
In court, Michael G. McGovern, a lawyer for Wolmark, and Daniel L. Zelenko, a lawyer for Zarefsky, told the judge they disputed the length of the sentences their clients face as calculated by the government.
The case is U.S. v. Rubin/Chambers, 09-cr-1058, U.S. District Court, Southern District of New York (Manhattan).
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Ex-Trader David Slaine Helped Lead to Rajaratnam, U.S. Says
David Slaine, a former Galleon Group LLC employee who pleaded guilty to criminal charges, was crucial to the prosecution of Zvi Goffer’s insider-trading ring and helped lead investigators to Raj Rajaratnam and Primary Global Research LLC, U.S. prosecutors said.
Slaine wore a wire to record dozens of conversations with Goffer and others, helping to spur what became the biggest probe of insider trading at hedge funds, prosecutors from the office of U.S. Attorney Preet Bharara in Manhattan said yesterday in a letter to U.S. District Judge Richard Sullivan. Calling Slaine’s cooperation “nothing short of extraordinary,” the government asked for leniency when he’s sentenced.
“Evidence gathered by Slaine played a role in, among other things, the successful prosecution of Raj Rajaratnam and his co- conspirators, as well as the defendants in the Primary Global Research case,” according to the letter. “His assistance was the launching point for many successful and ongoing criminal investigations of multiple insider trading networks.”
Slaine, who pleaded guilty to conspiracy and securities fraud in December 2009, testified at the trial of Goffer, his brother Emanuel Goffer and Michael Kimelman that he cooperated with federal agents for about 2 1/2 years to try to avoid prison.
Slaine faces as long as 25 years in prison when he’s sentenced.
A co-founder of Galleon Group, Rajaratnam reported to Federal Medical Center Devens in Ayer, Massachusetts, last month to begin an 11-year prison sentence. He was convicted by a federal jury in May of 14 counts of conspiracy and securities fraud for trading on inside information.
The case is U.S. v. Goffer, 10-cr-00056, U.S. District Court, Southern District of New York (Manhattan).
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Ex-Refco Lawyer Collins’s Conviction Thrown Out on Appeal
The conviction of Joseph Collins, Refco Inc. (RFXCQ)’s former outside lawyer, was reversed by an appeals court that found the trial judge improperly instructed a juror outside the presence of his lawyers.
Collins, convicted in 2009 of aiding Refco’s former chief executive officer Phillip Bennett and other executives defraud investors of $2.4 billion, is entitled to a new trial, a three- judge panel of the New York-based federal appeals court said in a ruling yesterday.
Collins was convicted of five of 14 criminal counts against him, including two counts of wire fraud, two counts of securities fraud and one count of conspiracy. Jurors were unable to reach a verdict on the other nine counts. During deliberations in the case, jurors told the judge that there had been threats of violence in the jury room, with one juror threatening to cut off the finger of another one.
“We cannot say with fair assurance that the judgment was not substantially swayed by the district court’s errors in this case,” U.S. Circuit Judge Denny Chin wrote in an opinion yesterday.
“After this long fight, we are very gratified by the Court of Appeals’ decision,” William Schwartz, a lawyer for Collins, said in an e-mailed statement. Ellen Davis, a spokeswoman for the U.S. Attorney in Manhattan, declined to comment on the ruling.
Collins, a former corporate lawyer with the Chicago firm Mayer Brown LLP (1120L), was accused of helping Refco’s management conceal transactions from lenders and investors that hid losses incurred by the New York-based firm. He was sentenced to seven years in prison.
The case is U.S. v. Collins, 07-cr-1170, U.S. District Court, Southern District of New York (Manhattan).
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Morgan Stanley (MS)’s Grossman Succeeds Barron as Chief Legal Officer
Morgan Stanley’s chief legal officer, Frank Barron, is leaving this year and will be succeeded by Eric Grossman, who was most recently global head of legal.
“To ensure a seamless transition, I have asked Frank to remain ‘of counsel’ to the firm through mid-year,” Chairman and Chief Executive Officer James Gorman said yesterday in an internal memo to employees. “Frank will step down from the Operating Committee but remain on the Management Committee until his departure.” Mark Lake, a spokesman for New York-based Morgan Stanley, confirmed the memo’s contents.
Morgan Stanley, the sixth-biggest U.S. bank by assets, hired Barron, 60, in July 2010 after Gary Lynch, then the firm’s chief legal officer, said he planned to leave. Grossman, 44, had been a candidate for Lynch’s job before Barron, a litigation partner at Cravath, Swaine & Moore LLP, joined the bank, a person briefed on the matter said last year. Grossman joined Morgan Stanley in 2006 and is a former partner at Davis Polk & Wardwell.
News Corp. (NWSA) Hires Williams & Connolly’s Zweifach as Top Lawyer
News Corp., embroiled in a hacking scandal that saw it shutter one of its U.K. newspapers in July, hired Gerson Zweifach, a partner with law firm Williams & Connolly LLP, as group general counsel.
Zweifach, 58, will be a senior executive vice president, reporting to Chairman and Chief Executive Officer Rupert Murdoch, the New York-based company said yesterday in a statement.
“We are fortunate to have such a renowned attorney join our company as we navigate the rapidly changing media landscape,” Murdoch said in the statement.
Zweifach, who has worked at Washington-based Williams & Connolly for almost 30 years managing antitrust and libel cases, succeeds Lawrence Jacobs, who left in June to pursue other opportunities. Janet Nova, a board member of the News International unit, who served as interim general counsel for the past six months, will remain with the company.
As top legal officer, the new general counsel will probably become point person for News Corp.’s handling of the phone- hacking scandal which led to the closing of the company’s News of the World tabloid in the U.K. and at least 21 arrests. Board member Joel Klein, a former federal prosecutor, is overseeing the company’s internal probe of its newspaper journalists’ actions.
Deacons, Hong Kong’s oldest law firm, plans to remain independent as it prepares for the expansion of its three offices in China when rules are changed to let overseas firms advise on local laws.
“We want to replicate our Hong Kong capabilities on the mainland when regulations permit,” Deacons Executive Partner Jeremy Lam said in a Jan. 4 interview. Lam said he hopes Hong Kong firms such as Deacons will be allowed to advise on Chinese law within the next five years.
Deacons, founded in 1851 in what was then a British colony, was the first non-Chinese law firm to be allowed a third representative office on the mainland in 2005, eight years after Hong Kong returned to Chinese rule. China has given law firms from the city, which retains a separate legal system, preferential access to the country.
While Deacons has been approached by U.S. law firms Lam declined to identity, it isn’t discussing strategic alliances with anyone and is pursuing a strategy of independence, he said.
That contrasts with other Hong Kong firms such as Johnson Stokes & Master which has merged with Chicago-based Mayer Brown LLP to form the Asian city’s largest law firm with 201 fee earners, according to trade publication Asia Legal Business.
In other mergers, Arculli Fong & Ng combined with Beijing- based King & Wood’s Hong Kong office in 2009, and that partnership will merge with the Hong Kong office of Australia’s Mallesons Stephen Jaques to have more than 130 lawyers.
Deacons, with 191 lawyers in Hong Kong, Guangzhou, Beijing and Shanghai, ended alliances with San Francisco-based Graham & James LLP in 2000 and with the 600-lawyer Australian firm formerly known as Sly & Weigall in 2009.
The Hong Kong firm ended its remaining alliances with firms in Taiwan, Malaysia and Thailand at the end of last year, Lam said.
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