Flickr pic Dusan Smolnikar
Plaintiffs’ firm Bernstein Litowitz Berger & Grossmann got benchslapped in a class action suit it attempted to bring against Washington Mutual’s former directors, officers, advisors, and underwriters. We’ve written previously about the in-fighting among WaMu’s estate, the FDIC, and JP Morgan, which bought most of the bank’s assets in a “fire sale.”
Despite filing a 388-page complaint (get it from their server if you’re interested, we’re not wasting our bandwidth), it’s difficult to tell exactly what causes of action Bernstein Litowitz is pleading.
The judge’s reaction, and the five BigLaw firms on the defense, after the jump.
A few of the choicer quotes from district judge Marsha Pechman’s order:
The Court remains mystified at counsel’s failure to allege cohesive claims, submit helpful briefing, or prepare a response to the court’s inquiry in advance of oral argument.”
“Plaintiffs’ counsel cannot expect the court to engage in the necessary analysis when counsel is not prepared to do so.”
and
“If Plaintiffs’ counsel are unable to rectify the problems identified in this order when they file an amended complaint, the court may be obligated to review whether counsel can adequately represent the proposed class.”
They didn’t meet the pleading standard even before Ashcroft v. Iqbal, so that’s pretty bad.
This is turning out to be yet another bank deal with tons of BigLaw involvement. According to the American Lawyer,
- Barry Ostrager (CUNY BA ‘68, NYU JD ‘72, CUNY MA ‘73), who has finished bickering with Cozen O’Connor but hasn’t started the summer sailing season yet, and partner Mary Kay Vyskocil (Dominican College of Blauvelt BA ’80, St. John’s JD ’83), with associates Rob Pfister and Gabe Miller of Simpson Thacher & Bartlett represent the former WaMu officers;
- Ronald Berenstain (Claremont McKenna BA ’73, Yale JD ’77), no idea if he’s related to the bears, of Perkins Coie represents the former WaMu outside directors;
- Barry Kaplan (Colgate BA ’73, Michigan JD ’76) of Wilson Sonsini Goodrich & Rosati represents former WaMu CEO Kerry Killinger;
- Peter Wald (Brown AB ’74, Harvard JD ’77) of Latham & Watkins represents Deloitte; and
- Dean Kitchens (Berkeley BA ’74, UCLA JD ’78) of Gibson Dunn & Crutcher represents the underwriters.
Interestingly, WaMu is using different counsel on the defense side; Weil Gotshal is doing the plaintiff-side suit against FDIC and JP Morgan:
Weil Gotshal & Manges is representing WaMu and WMI. David Berz (George Washington BA ‘70, JD ‘73), a DC environmental (?!?) lawyer and Adam Strochak (Vermont BA ‘87, George Washington JD ‘93), a DC bankruptcy, complex-commercial, and environmental litigator signed the complaint as local counsel. The heavy lifting is more likely being done by the New Yorkers: Marcia Goldstein (Cornell BA ‘73, Cornell JD ‘75), chair of the Business, Finance & Restructuring department, and her bankruptcy colleagues Brian Rosen (Brandeis BA ‘80, Suffolk JD ‘83) and Michael F. Walsh (Hamilton BA ‘72, San Diego JD ‘77, NYU LLM ‘79).
Maybe it’s because we’re not litigators, but we were surprised and amused to discover that the case that stands for the proposition that on a motion to dismiss, a court “accepts Plaintiffs’ factual allegations as true and draws all reasonable inferences in Plaintiffs’ favor” is Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). We never knew the choking incident reached a federal appellate court.
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