Federal and state antitrust laws are intended to protect and promote competition among businesses by prohibiting price fixing and other forms of anticompetitive conduct. Violations can range from straightforward agreements among competitors to raise prices above competitive levels, to often complicated schemes designed to increase cartel participants’ profits at the expense of their customers. WMD attorneys have wide-ranging experience representing clients in a variety of complex antitrust litigations.

We regularly represent businesses and individuals in class and direct actions against some of the largest and most powerful companies in the world, including global investment banks. We also handle significant antitrust cases on the defense side, representing companies accused of engaging in all forms of anticompetitive conduct. Many of our partners are leaders in the antitrust field.

Representative matters for the Antitrust & Competitive Litigation group include:

• City of Philadelphia et al. v. Bank of America Corp. et al., Civ. No. 19-cv-1608 (S.D.N.Y.): The Firm serves as court appointed co-lead counsel for Plaintiffs in an action pending in the Southern District of New York in which the cities of Philadelphia and Baltimore claim that certain financial institutions, including Bank of America, Barclays Bank, and Goldman Sachs & Co., artificially inflated interest rates on securities known as variable-rate demand obligation bonds (“VRDOs”). VRDOs are tax exempt bonds used to fund major municipal projects. Interest rates on these bonds are reset daily or weekly, and the banks serving as remarketing agents are obligated to keep the cities’ rates as low as possible. On November 2, 2020, the Court denied Defendants’ motion and ruled that the claims asserted, if proved at trial, would constitute a per se violation of the antitrust laws. The matter is ongoing.

• In Re Delta Dental Insurance Antitrust Litigation, Civ. No. 19-cv-06734 (N.D. Ill.): The Firm is serving as court appointed co-lead counsel for Plaintiffs in an antitrust action in the Northern District of Illinois (Chicago) against Delta Dental State Insurers, a group of not-for-profit dental services corporations. Plaintiffs allege that Delta Dental engaged in anti-competitive conduct by dividing up the national market between its regional plans, leaving dentists with no choice but to accept unfavorable terms on reimbursements and coverage. The complaint alleges that Delta Dental instituted a coordinated agreement not to compete among the various separate Delta Dental entities and misused its monopoly power in the market for dental insurance across the United States. On September 4, 2020, the Court denied Delta Dental’s motion to dismiss in its entirety. In so doing, the Court held that the operative complaint properly pled a violation of Section 1 of the Sherman Act (15 USC §1) under both the per se and rule of reason standards. The matter is ongoing.

• In Re Farm-Raised Salmon and Salmon Products Litigation, Civ. No., 19-cv-21551 (S.D. Fla.): The Firm represents direct purchasers of farm raised Atlantic salmon in an antitrust action pending in the Southern District of Florida (Miami) alleging that, beginning as early as 2015, several salmon producers conspired to artificially fix and raise the price for farm raised Atlantic salmon sold in the United States. The case stems from investigations and raids in Europe of Norwegian-owned companies farming Atlantic salmon. The operative complaint alleges that the structure and characteristics of the market for farm raised Atlantic salmon support the existence of a conspiracy in that the barriers to new entry are high, farm raised salmon is a commodity product where prices are correlated across the globe, Norwegian producers dominate the production of salmon and the defendants are the largest salmon producers worldwide, and industry connection and trade associations facilitated the defendants’ collusion. On March 23, 2021, the Court denied Defendants’ motion to dismiss in its entirety. In so doing , the Court found that the Plaintiffs alleged sufficient parallel conduct and plus factors to properly plead a violation of Section 1 of the Sherman Act (15 USC §1). The matter is ongoing.

• Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., Civ. No. 14-1327 (D.N.J.): The Firm defended Village Super Markets Inc. in an action alleging monopolization and attempted monopolization of the full service grocery chain market. The Plaintiff alleged that Village Supermarket engaged in a series of acts intended to impede the ability of a competitor to enter the relevant market. The case settled early in the discovery phase of the case with no finding of fault and no admission of liability by Village Supermarkets.

• In re Rail Freight Fuel Surcharge Antitrust Litigation (No. II), Civ. No. 20-00008 (D.C.): The Firm represents Air Products and Chemicals, Inc. in multi-district litigation consolidated in the District of Columbia pleading antitrust claims against the four largest railroads in the United States. The lawsuit alleges that the railroads engaged in a multi-year price fixing conspiracy to increase the price of rail-freight transport to the detriment of all railroad customers, including Air Products. The litigation survived the motion to dismiss and Plaintiffs’ claims under Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15, are going forward in discovery.

Our Firm has extensive experience representing clients in both federal and state appellate matters. Our appellate attorneys are also trial attorneys so they combine their deep knowledge on litigating matters with their appellate advocacy skills. When our clients retain us they do so with the understanding that the Firm is uniquely equipped to handle their matter throughout all stages of the litigation.

Representative matters for the Appellate Practice group include:

• Assured Guaranty (UK) Ltd. v. J.P. Morgan Investment Management Inc., 18 N.Y.3d 341 (2011). The Firm obtained a unanimous landmark ruling from New York’s highest court that New York’s “blue sky” law, known as the Martin Act (N.Y. Gen. Bus. Law § 352-59), does not preempt common-law tort claims for negligence and breach of fiduciary duty in the securities field.

• BanxCorp v. Bankrate, Inc., 847 F. App'x 116, 119 (3d Cir. 2021). The Firm prevailed in the Third Circuit, which affirmed the district court’s decision granting summary judgment in favor of the Firm’s client, Bankrate, Inc. In the district court, a competitor alleged that Bankrate monopolized a segment of the market for advertising loan products at the retail level. The Third Circuit held that the competitor failed to define the relevant market and show that prices charged by Bankrate were artificially low prior to the alleged monopolization. The Third Circuit further held that the competitor failed to show that Bankrate controlled a “dominant share of the market” and that the market was protected by “high barriers to entry.”

• Liberty Surplus Ins. Corp. v. AXA Ins. Co., 788 F. App'x 850 (3d Cir. 2019). The Third Circuit affirmed the dismissal of an action filed against the Firm’s client, AXA Corporate Solutions Assurance, SA. The Third Circuit held that the district court lacked personal jurisdiction over our client because the applicable forum selection clause provided exclusive jurisdiction to the courts of the Republic of Ireland.

• Miller v. Mercuria Energy Trading, Inc., 774 F. App’x 714 (2d Cir. 2019). The Second Circuit affirmed the dismissal of an action against Firm’s clients, Phoenix Global Resources PLC and Upstream Latinoamérica, S.L. for lack of personal jurisdiction. The Second Circuit held that a forum selection clause did not confer personal jurisdiction because the claim did not arise under the contract containing that clause and because the “closely related” doctrine was inapplicable.

• Odyssey Reinsurance Co. v. Certain Underwriters at Lloyd’s London Syndicate 53, 615 F. App'x 22 (2d Cir. 2015). The Firm obtained a reversal of the district court’s denial of a petition to appoint an umpire. The Second Circuit held that the district court’s denial was based “on the mistaken belief that it lacked the statutory authority under the FAA to resolve the parties’ deadlock over the appointment of an umpire.”

• In re Greenwich Sentry, L.P., 534 F. App’x 77, 79 (2d Cir. 2013). The Firm represented the liquidating trustee in an appeal relating to Greenwich Sentry, a feeder fund that failed when the ponzi scheme perpetrated by Bernard Madoff came to light. The Second Circuit affirmed the ruling of the district court, which held the bankruptcy court properly disallowed the claims of the appellants.

• MLRN LLC v. U.S. Bank Nat'l Ass’n, 190 A.D.3d 426 (N.Y. App. Div. 1st Dep’t 2021). The Firm prevailed in the Appellate Division, First Department, which affirmed the trial court’s ruling that the claims of Firm’s client, MLRN LLC, were not barred by the “no action” clauses in residential mortgage-backed securities pooling and servicing agreements.

• Matter of KPMG LLP v. Kirschner, 182 A.D.3d 484 (App. Div. 1st Dep’t 2020). The Firm obtained a stay, and later a final order, reversing a trial court ruling that an arbitrator should determine whether a dispute between the Firm’s client and the auditor was arbitrable. The Firm represented the trustee of a post-bankruptcy litigation trust into which pre-petition lenders to the debtor had placed their legal claims against KPMG for misrepresentations in the audit opinions upon which the lenders relied in making their lending decisions. The First Department ruled that the lenders, as non-signatories to the audit engagement between the borrower and KPMG that contained an arbitration provision, could not be compelled to arbitrate their misrepresentation claims simply because they relied on the auditor’s report.

• Orix Venture Fin. LLC v. Eagle Ltd., 120 A.D.3d 1108 (N.Y. App. Div. 1st Dept. 2014). The Firm prevailed in the Appellate Division, First Department, which affirmed the trial court’s entry of summary judgment and a damages award in favor of Firm client, Orix Venture Financial LLC.

• Mfrs. & Traders Tr. Co. v. Marina Bay Towers Urban Renewal II, LP, No. A-5879-17T2, 2019 N.J. Super. Unpub. LEXIS 2161, at *1 (Super. Ct. App. Div. Oct. 22, 2019). In a ruling of first impression, the Firm successfully represented an indenture trustee before the New Jersey Appellate Division. The court held that bondholders had the right to modify state affordable housing restrictions pursuant to New Jersey’s County Improvement Authorities Law in order to repair a senior low-income housing apartment complex damaged by Hurricane Sandy.

Our Firm has wide-ranging experience representing its clients in arbitrations and alternative dispute resolution in all types of disputes and encompassing all types of industries. The Firm’s attorneys have conducted numerous arbitrations through full hearing at FINRA, AAA, JAMS and ARIAS.

Attorneys in the Litigation Practice Group have successfully pursued and defended through trial multimillion dollar claims on behalf of domestic and international corporations, shareholders, families and individuals, in each case across a broad spectrum of industries and businesses.

For more than 20 years, clients have relied upon WMD as a recognized leader in insurance and reinsurance disputes and transactions. For the last 14 years, Chambers USA h (a leading independent evaluator of lawyers and law firms) has recognized the Firm’s expertise in insurance and reinsurance disputes, and recently noted that WMD has “[e]xceptionally capable litigators with expertise in insurance and reinsurance matters.” The Firm has experience in all major insurance business lines and industry segments – insurance, reinsurance, captives, runoffs, SPVs. From start-ups to established industry players, WMD provides the unsurpassed breadth and depth of experience our clients need in today’s marketplace.

Representative matters for the Insurance and Reinsurance Litigation group include:

• The Firm represents MLMIC Insurance Company, formerly known as Medical Liability Mutual Insurance Company (“MLMIC”), a medical malpractice insurance company and a member of the Berkshire Hathaway group of insurance companies, and its officers and directors, in various litigations arising out of demutualization of MLMIC and its subsequent sale to a Berkshire Hathaway affiliate for approximately $2.5 billion: (1) a putative class action filed in New York Supreme Court, King’s County, captioned Castagna, et al. v. Medical Liability Mutual Insurance Company, et al., Index No. 516767/2018, in which the Firm was successful in dismissing the Complaint; (2) a separate action filed in New York Supreme Court, Westchester County, captioned Maple Medical LLP v. Medical Liability Mutual Insurance Company, et al., Index No. 64248/2018, which also was dismissed; and (3) a separate action filed in New York Supreme Court, Nassau County, captioned Neurological Surgery P.C., et al., v. Medical Liability Mutual Insurance Company, Index No. 608889/2019, which is in discovery.

• The Firm represented an insurance company in an arbitration to enforce reinsurance agreements with respect to a claim in excess of $220 million submitted to it by its insured in connection with the flooding of a facility in Cedar Rapids, Iowa, as well as other locations around the country. The Firm prevailed in virtually every respect of the underlying arbitration, which became public when a motion to confirm the Award was filed in Federal court, which subsequently confirmed the arbitration Award. Minnetonka Insurance Co. v. Lloyd’s Syndicate SJC-2003, et al., No. 11-cv-6592 (DAB) (S.D.N.Y.)

• The Firm represented AXA Corporate Solutions Assurance, S.A. (“AXA CS”) in an action filed by Liberty Surplus Insurance Corporation (“Liberty”). Liberty asserted claims for declaratory relief, subrogation, and equitable contribution arising out of its settlement of product recall claims by its insured. AXA CS had issued a global excess policy to the parent company of the insured, which covered the parent and all its subsidiaries. Liberty contended that AXA CS’s global excess policy covered the insured’s loss and AXA CS was obligated to reimburse it for substantially all its settlement. AXA CS disputed Liberty’s claims and the Firm prevailed on a motion to dismiss the Complaint, which was affirmed by the United States Court of Appeals for the Third Circuit. Liberty Surplus Insurance Corp. v. AXA Corporate Solutions Assurance, S.A., et al, No. 18-3028 (3d Cir. 2019).

• The Firm represented various AIG companies in numerous reinsurance disputes arising out of the settlement of asbestos insurance coverage litigations.

• The Firm represented a leading insurance company in a successful confidential arbitration with its managing general underwriter regarding millions of dollars of disputed commissions.

• The Firm represented a leading insurance company in connection with arbitrations to collect numerous outstanding balances under a reinsurance treaty.

Our Firm has extensive experience advising and representing investment funds on a broad range of litigation-related matters. A large portion of the advisory and litigation services we provide our investment fund clients stems from the Firm’s attorneys in-depth experience with complex financial products, including structured financial produces and derivatives, as the capital markets. We are one of the few litigation-focused firms that has corporate and bankruptcy groups, which allows us to provide our investment fund clients unparalleled advisory and litigation services.

For many years, the Firm has been at the forefront of structured finance litigation, including claims relating to residential mortgage-backed securities (“RMBS”), commercial mortgage-backed securities (“CMBS”), and collateralized debt obligations (“CDOs”). We have brought billions of dollars of claims on behalf of institutional investors against RMBS issuers, trustees, underwriters, and rating agencies. We have also appeared in actions involving challenges to the interpretation of complex priority of payment rules (known colloquially as “the waterfall”) set forth in the transaction’s governing agreements. Our clients in these matters have included insurance companies, hedge funds, CDO issuers, foreign banks, the Federal Deposit Insurance Corporation, and other entities tasked with liquidating banks.

The members of the structured litigation group have unique expertise and experience, which has enabled our clients to prevail and obtain substantial recoveries against defendants represented by large, multi-national law firms.

Representative matters for the Structured Finance Litigation group include:

• In the Matter of the Application of U.S. Bank et. al, Index No. 652382/2014 (N.Y. Sup.). The Firm served as trial counsel for Ambac Assurance Corporation in its objection to the petition for judicial approval of JPMorgan’s global RMBS settlement via a highly publicized Article 77 proceeding in New York state court, resulting in a nearly $1 billion settlement of Ambac’s objection and other disputes against JPMorgan (which amount was publicly disclosed at the time).

• RMBS trustee actions. The Firm represents several clients in actions pending in state and federal courts, including Commerzbank AG, Pacific Life Insurance Company, Phoenix Light SF DAC (as successor to a German bank formerly known as WestLB), and the National Credit Union Administration in more than twenty actions against banks that served as trustees of RMBS. These actions assert claims relating to the RMBS trustees’ failures to satisfy their contractual, statutory and common law duties. Among other things, the lawsuits allege that the trustees failed to take action to protect the assets of the trusts and to remedy defaults under the relevant transaction documents before the statute of limitations on those claims expired.

• RMBS fraud actions. The Firm represented The Western & Southern Life Insurance Company and its affiliates in 10 cases against the sponsors, underwriters of Residential Mortgage-Backed Securities (“RMBS”). Western & Southern asserted claims under the Ohio Securities Act, and for common law fraud, arising out of its purchase of RMBS. With the exception two actions filed in federal court, these actions were filed in the Ohio Court of Common Pleas. All the cases were resolved through settlement, prior to trial.

• In re U.S. Bank N.A. as Paying Agent of Morgan Stanley Capital I Trust 2007-IQ14, Index No. 150183/2018 (N.Y. Sup.). The Firm represents a hedge fund in an ongoing dispute with a Paying Agent and other holders over treatment of loan modifications under CMBS waterfall.

• Lehman Brothers Special Financing Inc. v. Bank of America, N.A. et al., Adv. Pro. No. 10-03547 (S.D.N.Y. Bankr.). The Firm represented Lehman Brothers in pursuing claims against major financial institutions in connection with the termination of synthetic credit default obligations, leading to substantial settlement recoveries for the Lehman estate.

• In the Matter of Bank of New York Mellon, Index No. 651786/11 (N.Y. Sup.). The Firm represented major institutional investor in objecting to Article 77 proceeding relating to Countrywide RMBS. The client reached a settlement after a bench trial, but before the court’s decision.

• In re Residential Capital, LLC (ResCap), Case No. 12-12020 (Bankr. S.D.N.Y.). The Firm represented monoline financial guarantor Syncora Guarantee Inc. in the ResCap bankruptcy proceedings concerning hundreds of millions of dollars in payouts on defaulted RMBS. Litigation before the bankruptcy court focused on the allowance and amount of Syncora’s claims against the bankruptcy estate, and Syncora’s objections to the debtors’ proposed Chapter 11 plan. Syncora ultimately settled all ResCap litigation.

WMD’s attorneys have represented real estate owners, developers, secured lenders, loan participants, institutional and individual investors, majority and minority partners, bondholders, borrowers, landlords, tenants, and others in a wide range of issues. These matters include work outs and other restructurings, disputes over secured or unsecured assets, modifying the relationship of debt and equity, easement litigation, quiet title actions, contested mortgage foreclosures, violations of redevelopment agreements, boundary encroachments, and lease issues. We bring a strategic, business-minded approach to problem solving that proactively helps clients achieve their objectives in the most efficient and cost-efficient manner possible.

Representative matters include:

• The Firm represented Lehman Brothers Holdings Inc. (“Lehman”) in litigation relating to Archstone, the largest real estate holding of Lehman, which was purchased by Lehman and others for approximately $22 billion. Lehman, which owned 47% of Archstone and possessed a right of first refusal, sued Bank of America Corp. and Barclays PLC for breach of contract and injunctive relief to block any transfer of the banks’ interest in Archstone to Equity Residential. In re Lehman Brothers Holdings, Inc., et al., Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.), Adversary Proceeding No. 11-02928 (JMP).

• The Firm represented a nonbankrupt unit of Lehman against an affiliate of Goldman Sachs & Co. for breach of an approximately $1.3 billion contract related to 3-million-square-foot office building portfolio in Virginia. Rosslyn LB Syndication Partner LLC v. USREO/Rosslyn Investors, LLC, Chapter 11 Case No. 08-13555 (JMP) (Bankr. S.D.N.Y.), Adversary Proceeding No. 11-02764 (JMP).

• The Firm represented Toll Brothers, Inc. in two disputes in New Jersey state court arising out of options to purchase real estate in Jersey City, New Jersey and Hoboken, New Jersey. TSA Inv., LLC v. Block 255, LLC and Toll Brothers, Inc., Case No. HUD L-5761-09 (Super. Ct. N.J. Hudson County); Toll NJ IX and 126-142 Morgan Street Urban Renewal LLC v. V& S Realty Co. and Bay Street Management, LLP, Case No. C-69-10, (Super. Ct. N.J. Hudson County).

• The Firm represented hotel developer, Como Holdings USA, Inc. (“Como”), in litigation regarding real estate commissions purportedly owed in connection with Como’s acquisition of the Traymore Hotel in Miami, Florida. Ted Rover v. Como Holdings USA, Inc., Case No. 1:14-cv-20260-KMM (S.D. Fla.).

• The Firm represented Manufacturers and Traders Trust Company, an indenture trustee, in a 14-day bench trial, and later before the New Jersey Appellate Division. In a a ruling of first impression, both courts held that the bondholders had the right to modify state affordable housing restrictions under New Jersey’s County Improvement Authorities Law to repair a senior low-income housing apartment complex damaged by Hurricane Sandy. The ruling permitted the bondholder to generate additional revenue to fund repairs of the real estate collateral. Mfrs. & Traders Tr. Co. v. Marina Bay Towers Urban Renewal II, LP, No. A-5879-17T2, 2019 N.J. Super. Unpub. LEXIS 2161 (Super. Ct. App. Div. Oct. 22, 2019).

• The Firm represented New Jersey real estate developer Central Bergen Properties and its affiliates as the borrower in a receivership in connection with a multi-jurisdiction dispute in New Jersey federal district court, bankruptcy court, and state court. These actions arose from a $30 million securitized commercial mortgage loan, and in connection with successfully closing a global settlement and recapitalization of the borrower’s debt facility.

The Firm has extensive experience representing both plaintiffs and defendants in securities litigation filed in federal and state court, and in arbitral forums. We also represent large institutional investors that “opt out” of class action litigation and seek to pursue their own separate recovery against the defendant(s). The Firm also represents clients involved in corporate governance disputes, including breach of fiduciary duty and waste claims, actions for injunctive relief, appraisal actions, and actions for corporate dissolution.

Representative matters for the Securities Litigation Group include:

• Touchstone Strategic Trust et al. v. Gen. Elec. Co. et al., No. 19-cv-1876 (JMF). The Firm represents investment funds and other institutional investors in an “opt out” action, separate from the class action, against GE and its former CEO and CFO. In addition to asserting fraud claims arising under the Securities Exchange Act of 1934 stemming from the historic stock price collapse of GE, the plaintiffs are pursuing claims under the Ohio Securities Act, seeking recission of approximately $100 million of GE common shares. Because state law claims are infrequently pursued on a class-wide basis, plaintiffs who rely on class actions often lose the benefit of state law claims providing for recission - a powerful remedy because it compensates the investor for all of its stock losses, not just those caused by the alleged securities fraud.

• Western and Southern Life Ins. Co. v. Tesco PLC, No. 1:15-cv-00658 (SSB) (S.D. Ohio). The Firm represented a group of life insurers and investment funds that purchase American Depositary Receipts sponsored by Tesco, a supermarket chain based in the U.K. The Firm successfully defeated Tesco’s effort to create a multi-district litigation and have the action transferred to the S.D.N.Y, and away from plaintiffs’ home state of Ohio. The case settled thereafter.

• RMBS fraud actions. The Firm represented The Western & Southern Life Insurance Company and its affiliates in 10 cases against the sponsors, underwriters of Residential Mortgage-Backed Securities (“RMBS”). Western & Southern asserted claims under the Ohio Securities Act, and for common law fraud, arising out of its purchase of RMBS. With the exception two actions filed in federal court, these actions were filed in the Ohio Court of Common Pleas. All the cases were resolved through settlement, prior to trial.

• Alpha Capital Anstalt v. Intellipharmaceutics Int’l Inc. et al, No. 19-cv-09270-DLC (S.D.N.Y.). The Firm represented Defendant Intellipharameceutics and its CEO, COO, and former CFO against claims by plaintiff under Section 11 and Section 12(a)(2) of the Securities Act of 1933. The plaintiff investment fund (domiciled in Lichtenstein) alleged that that our clients failed to disclose in a securities offering in October 2018 certain facts relating to the CFO’s departure from the company. The Court granted summary judgment in our clients’ favor, holding that Defendants demonstrated that any alleged misrepresentations or omissions were not the cause of the Plaintiffs’ losses.

• Barron v. Helbiz, Inc., 1:20-cv-04703-LLS (S.D.N.Y.). The Firm represented an individual defendant in an action brought by investors in a cryptocurrency. The Firm prevailed on a motion to dismiss the action for lack of jurisdiction because the transactions at issue did not constitute domestic transactions regulated by federal securities laws.

• Enron LJM2 Matters. The Firm represented AIG and a large group of about 30 institutions and individual investors in their capacities as limited partners of LJM2 Co-Investment LP (“LJM2”), Enron’s notorious off-balance sheet entity. The Firm represented its clients in two separate disputes: (i) defending our clients against efforts by a group of banks seeking to enforce the limited partners’ remaining capital commitments for LJM2, and (ii) an affirmative action commenced by our clients against the financial entities that induced their purchase of their limited partnership interests. The matters involved nine-figure exposure and both matters settled prior to trial.