Mortgage Accord, JPMorgan, BofA, Dresdner in Court News
California’s Kamala Harris and New York’s Eric Schneiderman, who have pushed for changes to the deal, are among those who hadn’t joined the agreement as of yesterday’s deadline for states to decide. More than 40 states signed on to the accord, according to Iowa Attorney General Tom Miller, who is helping to lead talks with the banks.
“Adding more numbers probably improves the political dimension of the settlement from the standpoint of the attorneys general,” said Ken Scott, a Stanford University law professor. “If you can say there were only a handful of diehards that didn’t sign on, that gives you some political protection.”
All 50 states announced almost 16 months ago they were investigating bank foreclosure practices following disclosures that faulty documents were being used to seize homes. Officials from a group of state attorneys general offices and federal agencies, including the Justice Department, have since negotiated terms of a proposed settlement with the five banks, the nation’s largest mortgage servicers, that is said to be worth as much as $25 billion.
Miller said federal and state officials continue to discuss matters with the banks involved in the talks.
“This enables us to move forward into the very final stages of remaining work,” Miller, a Democrat, said in a statement yesterday.
Miller didn’t say which states have signed on and he declined to comment further.
Bank of America Corp., JPMorgan Chase & Co. and Wells Fargo & Co. made a last-minute demand that New York drop claims filed against them Feb. 3 as a condition of the settlement, a person familiar with the matter said.
The push by the three banks raised a new obstacle in getting Schneiderman’s support for the deal, said the person. New York, along with California, Nevada and Delaware said late yesterday they hadn’t signed on to the settlement.
New York sued Bank of America, JPMorgan and Wells Fargo in state court in Brooklyn, saying their use of a mortgage database known as MERS led to improper foreclosures. Schneiderman said the banks’ use of the Mortgage Electronic Registration Systems database misled homeowners, undermined foreclosure proceedings and created uncertainty about ownership interests in properties.
Dani Lever, a spokeswoman for Schneiderman, declined to comment on the demand by the banks over the MERS lawsuit.
Mark Rodgers, a spokesman for New York-based Citigroup; Tom Goyda of San Francisco-based Wells Fargo; Tom Kelly, a spokesman at New York-based JPMorgan; and Gina Proia of Detroit-based Ally Financial declined to comment on the settlement condition.
“We’re interested in finding a path forward with a comprehensive settlement that benefits homeowners and communities,” said Dan Frahm, a spokesman for Charlotte, North Carolina-based Bank of America, declining to comment further.
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JPMorgan Agrees to Pay $110 Million in Overdraft Fee Case
JPMorgan Chase & Co., the biggest U.S. bank by assets, reached a preliminary agreement to pay $110 million to settle litigation saying it gouged customers on overdraft fees for checking accounts, court records show.
The settlement would resolve claims by customers including Andrea Luquetta of Los Angeles, who sued over fees charged to debit cards attached to her checking account. U.S. District Judge James Lawrence King in Miami must approve any settlement. King had earlier rejected arguments by various banks that customers were legally bound to arbitrate the dispute.
“We’re pleased to have reached an agreement in principle,” Patrick Linehan, a JPMorgan spokesman, said in an e-mailed statement.
The litigation before King involves more than 30 banks sued over their overdraft-fee policies. The customers say the banks reorder debit-card transactions in their computers to maximize overdraft fees. Bank of America Corp., the second-biggest U.S. bank by assets, agreed last year to pay $410 million without admitting liability to settle an overdraft lawsuit brought by its customers.
In her lawsuit, filed in 2009, Luquetta claimed JPMorgan engaged in “unfair, deceptive and unconscionable” assessment and collection of overdraft fees. Her complaint also refers to the practices of Washington Mutual Inc., which JPMorgan bought in 2008.
Bruce Rogow, a lead attorney for the JPMorgan Chase customers, wouldn’t comment on the accord. Another lead attorney, Robert Gilbert, didn’t return a phone call or e-mail seeking comment.
The case is In re Checking Account Overdraft Litigation, 09-md-02036, U.S. District Court, Southern District of Florida (Miami).
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Contorinis Must Pay $8.3 Million in SEC Lawsuit, Judge Rules
Joseph Contorinis, an ex-Jefferies Paragon Fund money manager, must pay $8.3 million in a U.S. Securities and Exchange Commission insider-trading suit, a judge ruled.
U.S. District Judge Richard J. Sullivan in New York granted the SEC summary judgment, or a ruling before trial, in a Feb. 3 order, citing the facts proved at an earlier criminal trial.
Contorinis was accused of illegally trading on inside tips about bids for Albertsons Inc. supplied by Nicos Stephanou, an investment banker who was the government’s chief witness in the trial. Contorinis was convicted of securities fraud and conspiracy in a scheme that federal authorities said netted more than $7 million in illegal profits. He is serving a six-year prison term.
Sullivan, who also presided at the criminal trial, rejected the defense argument that Contorinis shouldn’t have to disgorge funds that he “never received or enjoyed” and that he personally profited by “a small percentage” of the illegal gains.
“Defendant is fully capable for his crimes, from which he profited substantially,” Sullivan wrote in his order.
“The jury’s verdict reflects defendant’s trades in ABS occurred over a period of two months, revealing a high degree of intent and a willingness to repeatedly exploit misappropriated information,” Sullivan wrote, referring to Albertsons by its ticker symbol.
Stephanou, a longtime friend of the defendant employed as an investment banker at UBS AG, testified he passed him nonpublic information regarding efforts by Cerberus Capital Management LP, to acquire Albertsons, which was then the second- biggest U.S. grocer.
The SEC case is Securities and Exchange Commission v. Stephanou, 1:09-cv-011042, and the criminal case is U.S. v. Contorinis, 09-cr-01083, U.S. District Court, Southern District of New York (Manhattan).
Smith & Nephew Settles Bribe Cases With U.S. for $22 Million
Smith & Nephew Plc, Europe’s biggest maker of artificial hips and knees, agreed to pay $22.2 million to settle allegations by the U.S. Justice Department and Securities and Exchange Commission that it engaged in a scheme to pay bribes in Greece.
Smith & Nephew admitted in filings yesterday in federal court in Washington that two of its units were involved in a scheme for more than a decade to make “illicit payments” to doctors employed by government hospitals or agencies in Greece in violation of the Foreign Corrupt Practices Act.
The London-based company, which entered into a deferred prosecution agreement with the U.S., agreed to pay a $16.8 million fine to settle the criminal allegations and another $5.4 million to settle a civil suit filed by the SEC.
“Smith & Nephew’s subsidiaries chose a path of corruption rather than fair and honest competition,” Kara Novaco Brockmeyer, chief of the SEC enforcement division’s FCPA unit, said in a statement. “The SEC will continue to hold companies liable as we investigate the medical device industry for this type of illegal behavior.”
“We have what I believe to be a world-class compliance program, having enhanced it significantly since this investigation began in 2007,” Olivier Bohuon, Smith & Nephew’s chief executive officer, said in a statement. “These legacy issues do not reflect Smith & Nephew today.”
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Ex-AFG Chief Hand Gets 8 to 16 Years for Witness Murder Plot
Ex-AFG Financial Group Inc. Chief Executive Officer Aaron Hand, already imprisoned for his role in a fraudulent $100 million mortgage scheme, was sentenced to eight to 16 years in prison after he pleaded guilty to plotting to kill a witness who testified against him.
Hand was sentenced in New York State Supreme Court yesterday by Justice Laura Ward, before whom he pleaded guilty in January to one count of conspiracy to commit murder. Hand, 40, was ordered in 2010 to serve as long as 25 years in prison and the new sentence will run consecutive with that, prosecutors have said.
“The defendant’s actions strike at the heart of the justice system,” Manhattan District Attorney Cyrus R. Vance Jr. said in a statement in January. “Nothing is more important than the safety of witnesses.”
Hand pleaded not guilty when he was charged in October. His lawyer at the time, Kevin Canfield, said his client was entrapped by the police.
“Entrapment is an extremely difficult affirmative defense,” Hand’s lawyer, Lee Ginsberg, said outside court yesterday. “This was a more appropriate way to resolve the situation.”
Hand was the mastermind of a mortgage scheme that defrauded Bank of America Corp., Wells Fargo & Co. and other banks, according to Vance’s office, which said it won convictions against all 27 people charged.
The case is People v. Hand, 4870/2011, New York Supreme Court (Manhattan).
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Pfizer, Ranbaxy Sued Over Alleged Anti-Competitive Scheme
Pfizer Inc. and Ranbaxy Laboratories Ltd. were sued in an antitrust case filed in federal court in New York alleging the drugmakers engaged in an anti-competitive scheme to delay a generic version of Lipitor into the market.
The AFL-AGC Building Trades Welfare plan, a health and welfare benefit plan based in Mobile, Alabama, claims that two drugmakers engaged in a monopolization scheme after the Pfizer’s original patent for the cholesterol-lowering drug expired on March 24, 2010.
In the proposed class-action, or group, lawsuit, the plaintiffs allege the drug companies agreed to delay the entry of generic Lipitor for 20 months. As a result of an unlawful agreement with generic-maker Ranbaxy, Pfizer cost purchasers to pay more for Lipitor than they would have paid for the generic version of the drug.
“Defendants’ scheme was successful -- generic Lipitor did not become available for sale until November 2011,” the plaintiffs said. “As a result of defendants’ illegal acts, plaintiffs and the indirect purchaser class were forced to pay billions of dollars more for Lipitor than they would have absent defendants’ anticompetitive scheme.”
Both drugmakers were sued in a complaint making similar allegations filed in federal court in San Francisco by 11 California pharmacies in November. In that case, the plaintiffs alleged that they held back on a generic version of the cholesterol-lowering drug in the U.S. and then fixed its price.
“The Federal Trade Commission reviewed the terms of the 2008 settlement,” Chris Loder, a Pfizer spokesman said in a telephone interview. “Pfizer believes the suit has no merit. We are confident that the Lipitor patent settlement with Ranbaxy is appropriate,” he said.
Chuck Caprariello, a spokesman for Ranbaxy, didn’t immediately return a voice-mail message left at his office seeking comment on the complaint.
The case is AFL-AGC Building Trades Welfare Plan, v. Pfizer Inc. (PFE) 12-CV-931, U.S. District Court, Southern District of New York (Manhattan).
Sloan-Kettering, Celgene Sued Over Cancer Research Deal
The Leonard and Madlyn Abramson Family Cancer Research Institute at Philadelphia’s University of Pennsylvania sued Dr. Craig Thompson in federal court in Manhattan for fraudulent misrepresentation, asking a judge to decide on the ownership of intellectual property rights to the research. The institute seeks damages from Thompson of more than $1 billion, according to the complaint.
Thompson studied cancer metabolism while he was scientific director of the institute, which was created by a $100 million donation from the Abramson family foundation to the university, according to the complaint filed Dec. 13. Without telling the institute, Thompson formed Agios Pharmaceuticals Inc. to exploit the research and got funding from Summit, New Jersey-based Celgene, the institute said.
At Sloan-Kettering, Thompson’s laboratory studies how cells use nutrients and how that affects DNA and cell growth, according to the hospital’s website. Cancer occurs when cells divide and grow out of control. Agios is working to develop drugs with the ability to “starve” cancer cells of the nutrients they need to survive, according to the company’s website.
“The allegations in this lawsuit are unfounded and without merit,” Thompson said yesterday in a statement. “It is unfortunate that the Abramson Family Cancer Research Institute has chosen to go down this path.”
Kathy Lewis, a spokeswoman for Sloan-Kettering, and Jay Mayresh, a lawyer for Celgene, declined to comment on the suit.
Agios was also sued.
“While Agios does not comment on the specifics of pending litigation, the claims asserted in this case are without merit,” a spokesman for Cambridge, Massachusetts-based Agios said in a statement. “There are no allegations of wrongdoing by Agios.”
Allan Arffa, an attorney for Thompson, didn’t return a phone message. Jay Mayresh, a lawyer for Celgene, declined to comment.
The case is Leonard and Madlyn Abramson Family Cancer Research Institute v. Thompson, 11-09108, U.S. District Court, Southern District of New York (Manhattan).
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BofA Investor Suit Over Merrill Deal Granted Class Status
A Bank of America Corp. investor lawsuit claiming the company misled shareholders about the acquisition of Merrill Lynch & Co. may proceed as a class action, a federal judge said.
U.S. District Judge Kevin Castel in Manhattan ruled yesterday that the claims in the case may go forward on behalf of all investors who held Bank of America common stock and call options from Sept. 18, 2008, to Jan. 21, 2009. Castel also certified a class of investors who held common stock on Oct. 10, 2008, and were entitled to vote on the Merrill acquisition.
“Given the potential class size and the likelihood that individual recovery for some class members may be relatively modest, class certification is appropriate,” Castel wrote.
The suit, filed in 2009, claims Bank of America failed to disclose information about bonuses to Merrill employees and about the firm’s financial losses in the fourth quarter of 2008. The decision to grant class status allows investors to pool resources and gives their lawyers more leverage to push for a settlement with the bank.
Lawrence Grayson, a Bank of America spokesman, declined to comment on the ruling.
The case is In re Bank of America Corp. (BAC) Securities, Derivative and ERISA Litigation, 09-mdl-2058, U.S. District Court, Southern District of New York (Manhattan).
GE Capital Accused of Not Telling AerCap About Brazil Suit
According to a complaint filed Feb. 3 in New York State Supreme Court in Manhattan, a lawyer for General Electric Capital Corp. told AerCap in February 2010 that the company was liable for “millions of dollars” in a court case involving Transbrasil SA, the bankrupt Brazilian airline.
The airline had sued GE and AerCap in February 2001 to void promissory notes issued in 1999 in connection with the leases of two engines and an aircraft, according to the complaint. GE lost an appeal of a 2007 judgment entered against AerCap and other defendants, and Transbrasil is asking Brazilian courts to enforce the judgment, according to the complaint.
“GE had concealed from AerCap that it was named as a defendant in the lawsuit and had directed the defense of the lawsuit -- with catastrophic results -- without AerCap’s knowledge or consent since 2001,” AerCap said in the complaint.
Transbrasil has said the appeals court decision entitles it to about $223 million, including interest, from AerCap and other defendants, according to the complaint.
General Electric hasn’t been served with the lawsuit and doesn’t comment on pending litigation, Daniel Whitney, a spokesman for GE Capital Aviation Services, said in an e-mail.
The case is AerCap Ireland Ltd. v. General Electric Capital Corp., 650341/2012, New York State Supreme Court (Manhattan).
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Oracle Seeks New Trial Against SAP After Verdict Dismissed
Oracle Corp. has elected for a new trial against SAP AG for alleged copyright infringement, rejecting a judge’s decision to reduce a $1.3 billion jury verdict against SAP to $272 million, according to a court filing.
U.S. District Judge Phyllis Hamilton in Oakland, California, threw out the $1.3 billion verdict in September, calling it “grossly excessive,” and said SAP should get a new trial if Oracle rejects her decision to reduce the amount to $272 million.
“Oracle’s objective is to obtain clarification of the law and, if it is right about what the law is and what the evidence supports in this case, to vindicate the verdict of the jury and Oracle’s intellectual property rights as a copyright owner,” Oracle attorney Geoffrey Howard said in a filing yesterday in federal court in Oakland.
In the trial, Oracle accused SAP’s TomorrowNow software- maintenance unit of making hundreds of thousands of illegal downloads and several thousand copies of Oracle’s software. Oracle said SAP’s aim was to avoid paying licensing fees and to steal customers.
Jim Dever, an SAP spokesman, didn’t return a voice=mail message left after regular business hours seeking comment about the filing.
The case is Oracle v. SAP, 07-1658, U.S. District Court, Northern District of California (Oakland).
Ex-Dresdner CEO Jentzsch Says Promised Bonuses for ‘Stability’
Stefan Jentzsch, the former chief executive officer of Dresdner Kleinwort’s investment bank, said he promised to set aside 400 million euros ($523 million) for bonuses in 2008 to retain workers and ensure the firm’s “safety and stability.”
He testified at a London trial yesterday where more than 100 former Dresdner bankers are suing Commerzbank AG over the bonuses outlined by Jentzsch at a company meeting in 2008. They say Commerzbank, which bought Dresdner in 2009, went back on his pledge and are seeking individual payouts of as much as 2 million euros.
The objective in promising the payments was “first and foremost to ensure the safety and stability of the firm,” Jentzsch said in his first witness testimony at the trial. “That was what the FSA was concerned about.”
The U.K. Financial Services Authority had put Dresdner on its watch list in 2008 because it was worried key staff would leave while the future of the investment-banking division was being decided by then-owner Allianz SE. (ALV) Jentzsch said bonuses should be given out based on an employee’s performance during that specific year, and that it was “cynical” to decide a bonus based on “whether or not that department or person is of use going forward.”
Commerzbank CEO Martin Blessing testified last week, defending the German lender’s decision to cut bonus awards at Dresdner by 90 percent or more in 2009. He said losses caused by the financial crisis justified the move, and that bankers should by motivated by loyalty, not just money.
The bankers’ cases include: Mr. Fahmi Anar & Others v. Dresdner Kleinwort Ltd., Commerzbank AG, High Court of Justice, Queen’s Bench Division, HQ09X05230 and Richard Attrill & 71 others v. Dresdner Kleinwort Limited, Commerzbank AG (CBK), HQ09X04007.
Fidelity’s Stairs Believed Chaoda Share Sale News Was Public
Fidelity Management & Research Co.’s George Stairs believed share placement information he was given by Chaoda Modern Agriculture Holdings Ltd.’s chairman and chief financial officer was public, a Hong Kong inquiry heard.
Chaoda management said nothing to Stairs to indicate he would be precluded from trading shares of the Chinese vegetable supplier, according to a letter from Fidelity’s lawyers presented in evidence on the first day of a Market Misconduct Tribunal hearing.
Stairs, then a portfolio manager at Fidelity Management, traded Chaoda’s shares after being told on a conference call by Kwok Ho, the company’s chairman and Andy Chan, its chief financial officer, about a June 2009 share placement before the information was public, Hong Kong’s government alleges.
Stairs netted proceeds of HK$1.98 million ($255,299) for his funds by selling shares prior to the placement and then buying more in the stock sale at a lower price, according to a government notice. The call was one of six arranged by Merrill Lynch (Asia Pacific) Ltd. between Chaoda management and institutional investors.
Boston-based Fidelity Investments conducted a thorough internal review of the matter in 2009 and believes that Stairs didn’t violate any laws or regulations, according to spokesman Vincent Loporchio. “We have a zero-tolerance policy with regard to the misuse of material non-public information,” Loporchio wrote in an e-mail before the hearing.
Mark Tsang, a Hong Kong-based spokesman for Bank of America, which bought Merrill Lynch in 2009, declined to comment on the inquiry and whether the investors were asked if they were willing to receive material non-public information on condition of refraining to trade on such information, also known as wall crossing.
Kwok, who has denied the allegations, and Stairs, now in a research position at Fidelity, declined to comment yesterday on the proceedings.
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Stanford Claimed $5.1 Billion, Had $173 Million Cash, CFO Said
R. Allen Stanford told his top brokers in late 2008 that his Antiguan bank “was sitting on $5.1 billion” more cash than it needed, while his treasury manager was privately e-mailing him that there was just $173.6 million cash on hand, Stanford’s former finance chief testified.
“At the present burn rate of withdrawals we had 35 days to 45 days of cash left,” James M. Davis, the former Stanford Financial Group Co. chief financial officer, told jurors at Stanford’s criminal trial in federal court in Houston.
Davis, who is testifying under a plea deal, said customers spooked by the global financial meltdown accelerated redemptions of certificates of deposit from Antigua-based Stanford International Bank Ltd. in the second half of 2008. By December of that year, the bank’s cash balance had dropped to $88.2 million, according to an e-mail shown to jurors.
Stanford, who was monitoring the bank’s falling cash balance on “pretty much a daily basis at that point,” Davis said, decided to shore up investor confidence and slow the run on the bank by making a $541 million capital infusion from his personal assets.
“He told me just to make a paper entry into the accounting records that it had been made,” Davis told U.S. District Judge David Hittner, who is presiding over Stanford’s trial.
“How would that pay off people at the bank if it was just a paper entry?” Hittner asked Davis. “It was just to stop the withdrawals and get more CD purchases coming in?”
Davis replied that was the plan.
Stanford, 61, denies all wrongdoing in connection with 14 criminal charges of mail fraud, wire fraud and obstructing a Securities and Exchange Commission investigation. He faces as long as 20 years in prison if convicted of the most serious charges, and has been imprisoned as a flight risk since his indictment in June 2009.
The criminal case is U.S. v. Stanford, 09-cr-342, U.S. District Court, Southern District of Texas (Houston). The SEC case is Securities and Exchange Commission v. Stanford International Bank, 09-cv-298, U.S. District Court, Northern District of Texas (Dallas).
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Health-Care Case Tests Supreme Court’s Ban on Live Broadcasts
The historic U.S. Supreme Court battle over President Barack Obama’s signature health-care legislation -- with 5 1/2 hours of arguments planned over three days on a matter that affects every American and may influence the 2012 elections -- will test the justices’ refusal to allow live broadcasts of their proceedings.
Lawmakers and media organizations are pressing for live television coverage, or failing that, live audio, in a case that will determine whether the government can force people to obtain insurance. The length of the arguments has few precedents in modern court history, and the case will be the court’s highest profile since the battle between George W. Bush and Al Gore in the 2000 presidential election.
“This is the focusing event and this puts more pressure on the court just because of the high level of interest,” said Lawrence Baum, a political science professor at Ohio State University in Columbus.
The court has given no indication it will relent on its ban of live broadcasts, and court observers said it’s unlikely. Even as Americans have come to expect live coverage of news events, the justices have made their marble courtroom a technology-free zone, barring spectators from using recording devices, telephones and cameras. The court releases its own audio recordings at the end of the week and has never allowed video, even on a delayed basis.
Justices are considering requests from a dozen lawmakers and more than 30 media organizations, including Bloomberg News, seeking live coverage. They say that there’s a strong national interest in watching live arguments over an issue that touches everyone and affects the economy and presidential election.
Justices will hear arguments in the health-care case -- which pits the Obama administration against 26 states -- from March 26 to March 28, an unusual series. Justices generally hear arguments for a single hour in each case.
The court will consider whether Congress overstepped its authority by requiring Americans to acquire health insurance or pay a penalty. Republican presidential candidates repeatedly have criticized the measure and demanded its repeal. However the court rules during the presidential contest under way, it will become a central issue of the 2012 campaign.
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On the Docket
Vulcan-Martin Marietta Bid Dispute Set for Trial Feb. 28
A dispute between Vulcan Materials Co. and Martin Marietta Materials Inc. over a $4.7 billion hostile takeover bid by Martin Marietta will be heard at a Feb. 28 trial before the chief Chancery Court judge in Delaware.
Judge Leo Strine Jr. in Wilmington approved a scheduling order yesterday to hear the case through March 2 on a fast-track basis, according to court records.
Martin Marietta, based in Raleigh, North Carolina, used “an unlawful scheme to pursue a hostile takeover of Vulcan through the wrongful use and disclosure of Vulcan’s confidential information,” Vulcan lawyer Collins J. Seitz Jr. wrote in a pretrial brief.
Vulcan, based in Birmingham, Alabama, was sued by Martin Marietta Dec. 12, with Martin Marietta seeking “a declaration that the Non-Disclosure Agreement does not prohibit Martin Marietta’s public offer to purchase all issued and outstanding shares of Vulcan’s common stock in exchange for Martin Marietta’s stock,” a lawyer for Martin Marietta, Robert S. Saunders wrote in the complaint.
The case is Martin Marietta Materials v. Vulcan Materials, CA7102, Delaware Chancery Court (Wilmington).
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