LITIGATORS OF THE WEEK
Michael Miller of Steptoe & Johnson and Jonathan Harris of Harris, Cutler & Houghteling
Before the economy went bust three years ago, securities arbitration awards rarely amounted to more than $10 million. But over the last couple of years, a flood of multi-million dollar arbitration claims stemming from the financial meltdown has been spurring arbitrators for the Financial Industry Regulatory Authority to grant larger and larger awards.
For the latest example, look no further than the $61 million awardthat a three-member FINRA panel issued Friday to a small Woodside, Calif. investment management firm called Aurum STS Aggressive Trading, in an arbitration against Société Générale. The award, the product of a team effort by Michael Miller of Steptoe & Johnson and Jonathan Harris of Harris, Cutler & Houghteling, ranks as the second-largest securities arbitration award this year and the six largest ever, according to Securities Arbitration Commenter.
Harris filed the case for Aurum in June 2009, just a month after leaving his position as counsel at Bernstein Litowitz Berger & Grossmann to start his own plaintiffs-side business litigation boutique with a pair of former Curtis, Mallet-Prevost, Colt & Mosle lawyers. Aurum accused Société Générale of breach of contract, breach of fiduciary duty, unjust enrichment, and other claims in connection with derivative warrants sold by SocGen that were pegged to the value of a fund called Aurum Leveraged Fund S1.
The case was a direct progeny of the financial crisis, according to Harris. Aurum, which is managed by a former technology developer named Atef Eltoukhy, claimed that when it bought its warrants from SocGen in 2003 and 2004, it received the right to redeem them when they expired in November 2008. But as with so many deals forged during the early oughts, the parties hadn’t anticipated the collapse of the financial markets in fall 2008. In the wake of the Lehman Brothers bankruptcy, SocGen allegedly told Aurum it would only pay up under new, unilaterally imposed terms.
“Money got scarce, so people maybe didn’t act the way they should have probably acted,” Harris said.
SocGen, represented by David Brodsky of Latham & Watkins, denied the allegations and countered with claims of its own. Lawyers involved in the case were cautious in discussing the private arbitration in detail. But from the award, it appears SocGen built its case partly on an April 2008 letter signed by Eltoukhy in which the bank claimed he agreed to roll over some or all of the warrants into a new investment.
Steptoe’s Miller, an old friend of Harris’s, came on board in the fall of 2010, as trial approached. “We were litigating against the A-team at Latham and thought we needed more firepower,” Harris said. In February 2011 Aurum’s lawyers upped the ante by increasing the company’s demand from $178 million to $245 million.
The FINRA trial was held in San Francisco over the course of 29 hearings between April and July. Miller said he made the opening and closing arguments and handled many witnesses, while Harris handled key witnesses and experts and was integrally involved in strategy.
The three-member panel ultimately found SocGen liable for compensatory damages of $125.9 million, plus nearly $27 million in interest. The panel also denied SocGen’s counterclaims in their entirety. The arbitrators awarded Aurum $61 million, taking into account $91.9 million that SocGen had already paid.
A spokesman for SocGen said in a statement that the bank disagrees with the decision and that the evidence showed it met its obligations. “In any event, the arbitrators denied Aurum’s demand for substantially greater damages,” the spokesman said.
Aurum’s lawyers, at least publicly, aren’t doing any complaining about the size of the award. “We believe that the award is the result of very thoughtful work by the arbitration panel,” Miller said. Harris agreed: “I think the panel did a great job.”