Las víctimas olvidadas de Stanford ahora disponible en español

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Wednesday, October 26, 2011

Looks like all the class actions are going to be thrown out thanks to SLUSA!!

Proskauer, Chadbourne off the hook in Ponzi scheme class action

Davis Polk & Wardwell and Paul, Weiss, Rifkind, Wharton & Garrison had to make a key strategic decision when they moved to dismiss a securities class action accusing Proskauer and Chadbourne & Parke of abetting R. Allen Stanford's Ponzi scheme. The firms had a veritable arsenal of defenses to deploy: qualified immunity because the law firm defendants were acting as counsel to Stanford; no evidence of fraudulent intent by the law firms; no duty to Stanford's investors. But the first defense both Davis Polk and Paul Weiss chose to assert in motions to dismiss on behalf of Proskauer and Chadbourne was more technical. The Dallas federal court class action, they asserted, had to be dismissed because the Securities Litigation Uniform Standards Act of 1998 pre-empts its claims, which were all grounded in Texas state law.

"Putting aside the absence of any viable federal claims," wrote Proskauer's counsel from Davis Polk, "because plaintiffs have chosen to bring their claims not only on their behalf, but also on behalf of a putative class, their claims are barred by SLUSA, and they cannot 'be maintained' as a class action in this or any other court."

The strategy turned out to be a good one. On Friday U.S. District Judge David Godbey of Dallas federal court dismissed the class action without granting leave to appeal. The case, he said, was precluded by SLUSA. You have to give class counsel from Castillo Snyder and Strasburger & Price credit for trying to get around the U.S. Supreme Court's 2008 ruling in Stoneridge v. Scientific-Atlanta, which pretty much cuts off federal securities law claims against the law firms, auditors, and investment advisers to accused fraudsters. The allegations against Chadbourne and Proskauer all involved the advice that Stanford counsel Thomas Sjoblom (who lateraled from Chadbourne to Proskauer after he began representing the Ponzi schemer) gave to his client. The class didn't offer evidence that either of the law firms communicated directly with Stanford's investors -- the standard they would have had to meet to bring federal securities claims.

So instead, the amended class action complaint against Sjoblom, Chadbourne, Proskauer, and a former Stanford general counsel was based on Texas's state securities laws. The complaint claimed that former Securities and Exchange Commission enforcement lawyer Sjoblom -- and, by extension, the firms at which he practiced -- should have known Stanford was running a Ponzi scheme, but helped keep him afloat nonetheless.

If Stanford had been trading stock, it would have been a no-brainer for Davis Polk and Paul Weiss to cry SLUSA. He wasn't. Stanford sold investors instruments he called CDs from the Antiguan bank he controlled. These CDs functioned as mutual or hedge fund shares. But it wasn't entirely clear that they fell under SLUSA's definition of securities, which is limited to instruments traded on a national exchange. Davis Polk argued that because Stanford investors liquidated stock and bond holdings in order to purchase Stanford CDs -- and because Stanford claimed that the CDs were backed by stocks and bonds -- the Stanford instruments fell under SLUSA's definition of a covered security.

Because Godbey agreed, he never even reached the other defenses Proskauer and Chadbourne -- and, for that matter, other Stanford defendants whose motions to dismiss he granted on SLUSA grounds -- might have argued. Proskauer counsel James Rouhandeh of Davis Polk declined comment, as did Chadbourne counsel Daniel Beller. I left a message with class counsel Edward Snyder but didn't hear back.

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