The New York Court of Appeals upheld our position that the acquisition of Superior Well Services Inc. by Nabors Industries Inc. may have triggered a change in control provision for preferred shareholders. The case was dismissed by the Appellate Division, but the Court of Appeals agreed to hear our appeal and then reversed. Discovery and ultimately a motion for a decision on a fully developed record will proceed in the trial court. Whitebox Concentrated Convertible Arbitrage Partners, L.P., et al. v. Superior Well Services, Inc., No. 176, 2012 WL 5257569.
In a closely watched case before the full 11th Circuit Court of Appeals for the federal courts, the Court let stand the dismissal of an antitrust action against several hedge funds by a 5-5 vote. The complaint alleged that the funds took steps in litigation and in the market for the plaintiff company’s bonds that violated the antitrust laws. Industry trade groups joined Ross & Orenstein in arguing that subjecting securities market activity to antitrust law risks would have created a dangerous precedent. CompuCredit Holdings Corp. v. Akanthos Capital Management, LLC, et al., No. 11-13254 (11th Cir.) (en banc)
Our client sued Carl Icahn and affiliated companies for issuing bonds without disclosing our client’s interest in the company’s principal asset. Icahn and his affiliates filed their own suit in response, for abuse of process and the like. The trial court upheld the filing of our suit and dismissed the Icahn group’s action. The New York appellate court affirmed both decisions. Nineteen Eighty-Nine, LLC v. Icahn Enterprises, et al., N.Y. County Index No. 60056/10, 150040/10 (1st Dep’t).
A New York appeals court affirmed the award of a $650,000 fee to Ross & Orenstein’s client, an investment banking firm. The defendant argued that the firm didn’t perform under the contract. Trump Securities, LLC v. Purolite Co., 98 A.D. 3d 904 (1st Dep’t 2012).
The New York Court of Appeals heard argument in a case about a change in control clause in a preferred Certificate of Designations. The issue was whether the clause could be read to cover a takeover via a tender offer followed by a reverse triangular merger. The trial court denied a motion to dismiss the case, but the Appellate Division reversed. The Court of Appeals agreed to hear our appeal. We argued that the clause can be read our way and we should have an opportunity to prove our case. The video of the argument is available here. Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Services, Inc., No. 176.
In an antitrust action before a federal court of appeals, the Credit Roundtable, Loan Syndications and Trading Association, Managed Funds Association, and Securities Industry and Financial Markets Association filed briefs in support of our clients, hedge funds who are noteholders of CompuCredit Holdings Corp. CompuCredit claims that the holders violated the antitrust laws by aggressively acting to enforce their rights (including a suit for fraudulent transfer brought by Ross & Orenstein). The case was dismissed by the trial court, affirmed by an appellate panel, and is now being heard by the full 11th Circuit. CompuCredit Holdings Corp. v. Akanthos Capital Mgmt., LLC, No. 11-13254-BB (11th Cir.).
Acting as counsel to a participant in a joint venture with Carl Icahn, we achieved summary judgment against Mr. Icahn and his affiliates for their failure to permit our client to participate in trades totaling $108 million of Federal Mogul bonds. 1989, LLC v. Icahn, 2012 WL 2344848 (1st Dep’t).
Acting as counsel to a group of victims of a N.Y. Madoff feeder fund with more than $10 million in investment losses, we recently participated in a global settlement that was favorable to our clients.
We recently represented an heir to a $10 million estate challenging a new will drafted in favor of the testator’s health care assistant. The challenge was based on the testator’s lack of capacity and on the assistant’s undue influence. Following discovery and a key appellate victory in In Re Will of Moles, 90 A.D.3d 473 (1st Dep’t 2011), we successfully negotiated a highly favorable settlement for our client.
Acting as counsel to several hedge funds and insurance companies that were defrauded in the Adelphia accounting scandal, we have negotiated a series of settlements over the last few years which have resulted in aggregate client recoveries greater than $100 million. More settlement proceeds were released in May, and still more settlements are anticipated.
A Florida appeals court reaffirmed that Ross & Orenstein’s clients, investors in Madoff feeder funds, did not have to submit their claims against the funds’ auditors to arbitration. KPMG had taken the issue to the U.S. Supreme Court, which had sent it back to the Florida court for further consideration. KPMG LLP v. Cocchi, 88 So. 3d 327 (Fla. Dist. Ct. App. 2012).
Representing the two largest bondholders in a greenmail lawsuit, we, together with the indenture trustee, kept a minority bondholder from blocking an indenture amendment that would benefit all holders in a $520 million CBO. Commerzbank AG v. Deutsche Trustee Co. Ltd., Index No. 650722/2012 (Sup. Ct. N.Y. Co.).
A New York bankruptcy judge denied the motion of Charter Communications for summary judgment against an indenture trustee, our client, who asserts that a Charter litigation settlement fund should go to noteholders under Charter’s reorganization plan. The judge ordered a trial unless the parties can successfully mediate the dispute. Law Debenture Trust Co. of NY v. Charter Communications, Inc., Adv. Proc. 11-01267-jmp (Bankr. S.D.N.Y.).
We represent a group of investors who lost approximately $25 million in the Madoff Ponzi scheme through intermediate investment funds (or “feeder funds”). A Massachusetts trial court allowed the investors’ claims against the feeder funds, their investment advisor, and their auditor to proceed over various motions to dismiss. The court also denied the auditor’s motion to compel arbitration of the investors’ claims, holding that the investors’ claims were their own and not derivative of the funds’ claims. Askenazy v. Tremont Group Holdings, Inc., 29 Mass. L. Rptr. 340 (Mass. Super. Ct. 2012).