Litigation

Overview

Wilk Auslander litigators bring deep trial, arbitration and mediation experience, business insight and aggressive advocacy to help our clients protect their assets and resolve disputes.  A successful trial practice is not only about winning in the courtroom; it is also about minimizing the business disruption, both short- and long-term.  It is about giving you frank advice and a clear view of your alternatives. And it is about providing these services with a keen eye on the budget and what makes financial sense.

We work with clients on a full range of litigation matters, from commercial disputes to regulatory enforcement and securities litigation.  Our judgment enforcement work is nationally recognized, with underlying judgments in excess of one billion dollars. We also have a historical track record in real estate-related litigation.

Representative Matters

  • In a closely-followed case in the securities industry obtained a trial judgment in New York state court of $94 million against a large international bank on behalf of a hedge fund in a litigation involving credit default swaps.  The judgment was affirmed by New York’s Appellate Division, First Department, with interest increasing to $110 million.
  • In a hard-fought litigation in New York State court, we won significant victories on behalf of a government-owned energy company in both the trial and appellate courts. Before the trial court, we successfully opposed a motion to dismiss in an action brought by the company seeking a declaration that the bonds issued by it had expired. Our successful opposition to the motion to dismiss, subsequently affirmed by the appellate court, allowed the company to continue litigating its claim in the trial court.
  • Obtained a trial verdict of $39 million in U.S. Bankruptcy Court on behalf of a Trustee and creditors involving a fraud claim in the jewelry industry.
  • Our ground-breaking judgment enforcement strategy ultimately led to a landmark decision, in which the Appellate Division affirmed an order directing judgment debtors, headquartered in Singapore, Indonesia, and the Netherlands, to turn over assets wherever such assets are located. The oft-cited Gryphon decision has become a cornerstone of judgment enforcement and distressed debt litigation. Gryphon Domestic VI, LCC v. APP Int’l Finance Co., B.V., 41 A.D.3d 25, 836 N.Y.S.2d 4 (1st Dep’t 2007).
  • In a highly publicized dispute, we represented a leading boutique investment bank in an action alleging defamation and other torts against a former employee. Following a series of related complex regulatory inquiries and investigations, as well as arbitration before FINRA, we won a $10.7 million arbitration award — one of the largest-ever arbitration awards leveled against an individual, subsequently converted into a judgment exceeding $16 million.
  • Successfully represented a foreign government in the United States District Court for the Southern District of New York, the United States Court of Appeals for the Second Circuit, and the United States Supreme Court, and obtained dismissal of the case on the grounds that the government had sovereign immunity under the Foreign Sovereign Immunities Act.
  • Successfully represented a magazine publisher in a five-day trial in the United States District Court for the Western District of North Carolina, which resulted in a judgment that the magazine’s trademark was infringed by a manufacturer of pantyhose.
  • Represented the minority owners of the Tampa Bay Lightning NHL team in resolving issues arising from the sale of the team by the league to new investors.
  • Represented the 40/40 Club, a sports bar affiliated with the rapper Jay-Z, in copyright litigation arising from C.C. Sabathia’s 30th birthday party.
  • Defeated an attempt by a general partner of a real estate partnership owning a Manhattan office building to dilute the interests of limited partners through repeated capital calls.
  • Achieved a “no probable cause” finding at the EEOC level against claims of race discrimination and retaliation against a private manufacturer of sophisticated electronics.
  • Successfully negotiated, on behalf of a judgment creditor, a complex settlement agreement with judgment debtors, who sought bankruptcy protection as a result of our multifaceted enforcement of a multi-million-dollar judgment entered by a federal court.

Commercial Litigation

Overview

Wilk Auslander’s fifteen business litigators help our clients achieve positive results in disputes arising from business relationships that have gone awry. We focus relentlessly on achieving our clients’ business objectives as quickly and painlessly as possible. As the result of our firm’s size, we have the flexibility and focus to help a wide range of businesses, from technology startups to major financial institutions and publicly traded companies. We regularly represent investment banks, private equity firms, publicly traded manufacturing and service companies, governments and government-owned public utilities, privately held businesses, and investors. We also have represented real estate owners and investors, hotels, and commercial tenants. Our clients include businesses and investors based in Europe, South America, South Africa, Canada, Israel, and Asia, as well as foreign governments.

Wilk Auslander’s trial lawyers assist our clients in courts throughout the United States and in international tribunals. We pride ourselves on finding ways for our clients to avoid disputes or to resolve them before they become contentious, and our litigators work closely with our firm’s transactional lawyers to devise structures that satisfy our clients’ business needs.

Representative Matters

  • Successfully argued, before both trial and appellate courts, for dismissal of a nine-count complaint seeking millions of dollars in damages for the alleged breach of a partnership operating agreement. The appellate court affirmed the dismissal of the suit, holding that the plaintiff’s separation agreement barred the claims asserted against the defendant.
  • Secured summary judgment for several million dollars in favor of a large New York City bank against delinquent borrowers in a case that involved issues under the law of New York, Saudi Arabia, and Bahrain.
  • Argued a case before the United States Supreme Court that established the boundaries for trade dress protection under the Lanham Act.
  • Obtained a favorable settlement as defense counsel on behalf of a public biotechnology company in a multi-million-dollar federal action. The action was filed by more than a dozen hedge fund plaintiffs alleging breach of securities purchase agreements concerning the hedge funds’ anti-dilution and participation rights for future company offerings.
  • Currently representing a Bankruptcy Trustee in investigating and bringing to trial in U.S. Bankruptcy Court a $40 million fraud in the jewelry industry.
  • Successfully defending a large industrial company at trial and obtaining a federal court ruling rejecting allegations that the company engaged in racial discrimination.
  • Successfully represented the minority owners of the Tampa Bay Lightning NHL team in disputes arising from the league-supervised sale of the team.
  • Represented the developer of Chelsea Market (Manhattan) in acquiring the debt, and subsequently the market property, through bankruptcy and foreclosure.  We later supervised the leasing of the property.
  • Represent an international energy company in litigation against a bondholder that attempted, unsuccessfully, to force the energy company into bankruptcy based on certain bonds issued by our clients.
  • Obtained a favorable settlement on behalf of a real estate management company in a dispute with a tenant concerning the operation of a boutique hotel in New York City.
  • Represented a limited partner seeking to protect its interests against a general partner and other parties attempting to force the dispossession of its interest in the partnership for far less than its fair value.  Successfully prevented the loss of the interest.

Judgment Enforcement

Overview

Wilk Auslander is an internationally recognized leader in the area of cross-border and domestic enforcement of large-scale monetary judgments, often in values exceeding the billion-dollar mark. Our clients include distressed debt holders, indenture trustees, and multinational domestic and foreign issuers.

Our expertise in the judgment enforcement space has been recognized not only by those seeking to enforce judgments, but also by sophisticated institutions, including instrumentalities of sovereigns, seeking to fend off significant debt holders.

We have been at the forefront of precedent-setting case law in judgment enforcement. For example, we represented a prevailing judgment creditor in a landmark decision in which the New York Supreme Court, Appellate Division, affirmed an order directing foreign-based judgment debtors to turn over assets regardless of where the assets were located. This case is now one of the most cited decisions in the judgment enforcement area.

Judgment enforcement is a complex process, which very often requires judgment creditors to challenge and disassemble sophisticated tactics and structures used by debtors to conceal or transfer assets. These tactics often involve the concealment of assets via numerous special-purpose vehicles, trusts, and international business corporations in debtor-friendly global jurisdictions with seemingly impenetrable secrecy laws.

Our lawyers are able to untangle the maze of concealed assets through our large, close-knit network of investigators and local counsel around the world. We apply innovative strategies to generate effective compromise or judgment satisfaction when pursuing even the most reluctant and recalcitrant judgment debtors and obligors. In doing so, we represent clients at all stages of judgment enforcement, including:

  • Developing an effective strategy at the outset of our engagement, which we continuously mold to fit evolving conditions
  • Obtaining registration of out-of-state judgments
  • Conducting post-judgment discovery, including internationally, in order to locate the judgment debtor and/or the debtor’s assets
  • Employing the use of effective motion practice, based on established and developing statutes and case law
  • Aggressively advocating for our clients at the trial and appellate levels in both state and federal courts.

We regularly employ a multitude of legal mechanisms during the judgment enforcement process, such as:

  • Post-judgment discovery: One of the most important aspects of judgment enforcement is asset location. We use numerous post-judgment discovery tools to obtain the information we need to force resolution and satisfaction in the face of determined concealment.
  • Turnover orders: A turnover order is a court order directing the judgment debtor or another party to turn over assets belonging to the debtor, wherever those assets may be located, domestically or internationally.
  • Contempt orders: Seeking a contempt order is often necessary with a recalcitrant judgment debtor who disobeys court orders.
  • Charging liens: A “charging lien” or “charging order” is a device, available in most jurisdictions in the United States, by which a judgment creditor may reach — or charge — a judgment debtor’s distribution interest in a limited liability company of which he is a member, or a limited partnership of which he is a partner.

Representative Matters

  • We established the precedent in the New York courts that foreign-based judgment debtors who are subject to personal jurisdiction in New York must turn over assets located anywhere in the world — not just in New York.
  • Successfully defended a multi-national action commenced against a government-owned public utility by holders of distressed debt who sought to take over the company.  Latin Lawyer awarded “Deal of the Year” recognition to the litigation.
  • Represented a global investment corporation in connection with enforcement of a multi-million-dollar judgment against a former principal.
  • Seized judgment debtors’ equipment aboard a vessel en route from the United States to Asia in connection with enforcement of a multi-million-dollar judgment against a foreign manufacturing conglomerate.
  • On behalf of Royal Bank of Canada, successfully dismissed a special proceeding that alleged the bank acted in contempt of court by failing to comply with a restraining notice concerning the judgment debtor’s bank account. The resulting decision, which holds that the service of the restraining notice on RBC’s Manhattan branch was not sufficient to bind RBC’s Toronto branch to freeze the judgment debtor’s accounts or turnover its assets, confirms the viability of the “separate entity rule” in New York.
  • Successfully negotiated, on behalf of a judgment creditor, a complex settlement agreement with judgment debtors, who sought bankruptcy protection as a result of our multifaceted enforcement of a multi-million-dollar judgment entered by a federal court. The agreement included terms providing for the payment of funds owing to judgment creditor, as well as the dismissal of bankruptcy proceedings, waiver of dischargeability of the debt owed to judgment creditor, and waiver of the automatic stay, as to judgment creditor’s claims, in future bankruptcies.
  • Representing the beneficiaries of a multi-million-dollar trust in enforcing a judgment against the trustee for damages arising from the trustee’s improper investments, self-dealing, and conflicts of interest.
  • In connection with enforcing a multi-million-dollar judgment, successfully levied against an individual judgment debtor’s real-estate properties.

Real Estate Litigation

Overview

Our litigation lawyers have extensive experience representing owners, managers, lenders, developers, contractors and corporate tenants in a wide variety of federal and state litigation at the trial and appellate levels. We have helped clients in disputes involving mortgage foreclosures, lien priorities, construction, title issues, partnerships, leases, condominium and coop issues and insurance. We are frequently called upon to analyze and prosecute the rights of creditors in bankruptcy and out-of-court restructurings. Our firm has unique experience and is especially prepared to deal with institutional “workouts,” from the perspective of both the lending institution and the debtor.

Outside of the courts, our litigators often play a critical role in analyzing potential real estate transactions to minimize litigation risks and as part of our clients’ due diligence process. We recognize the value of non-judicial alternative dispute resolution, and have significant experience arbitrating and mediating large and small disputes in the real estate area.

Representative Matters

  • Successfully litigated real estate foreclosure actions throughout New York State for a commercial saving bank.
  • Prosecuted and defended landlord/tenant proceedings for several large commercial landlords in New York City.
  • Successfully defended a commercial real estate services firm from attempts by a party seeking to implicate the firm for the party’s own breach of its contract with another party.  Ultimately reached a favorable settlement, imposing no liability whatsoever on the client for the matter in dispute.
  • Defeated an attempt by a general partner of a real estate partnership owning a Manhattan office building to dilute the interests of limited partners through repeated capital calls.
  • Successfully represented a co-op owner in a renovation dispute with the co-op board.

Regulatory Enforcement and Investigations

Overview

Wilk Auslander is a highly experienced and trusted advisor to clients facing industry regulators, including inquiries and formal investigations. We have discreetly and swiftly helped our clients contend with inquiries and investigations instituted by a broad range of regulatory bodies and enforcement agencies, including the U.S. Senate Committee on Finance, the SEC, FINRA, the Department of Justice, state regulators, and attorneys general throughout the United States.

We regularly advise corporations, financial institutions, broker dealers, investment banks, hedge funds, public companies, and directors, officers, and employees at every stage of the regulatory process. We have successfully handled regulatory inquiries and investigations, including matters involving allegations of corporate fraud, violations of FINRA rules governing broker-dealers, violations of SEC rules and regulations, and corporate governance malfeasance.

As the regulatory environment undergoes fundamental changes both domestically and internationally, Wilk Auslander provides its clients with comprehensive strategic advice — not only on the particular issue at hand but also on our clients’ overall regulatory, business and commercial needs. The regulatory and investigations team at Wilk Auslander has years of experience dealing with regulatory investigations and regulatory agencies. We use our extensive experience to shape business-sensitive and realistic outcomes that strive to preserve and protect our clients’ competitive needs in an ever-changing environment. 

We have successfully resolved, with no charges filed against our client, parallel investigations and inquiries by the SEC, FINRA, the New York Attorney General, and the United States Senate Finance Committee.

 

Representative Matters

Securities Litigation

Overview

Wilk Auslander is a dynamic presence in the area of securities litigation. Our work includes defending securities class actions and derivative lawsuits; litigating FINRA arbitrations; and representing broker dealers, registered persons, and other financial professionals in investigations by regulators (including congressional inquiries) and self-regulatory organizations (SROs). We also assist distressed debt holders in enforcement and other proceedings, represent public companies in litigation involving securities issued by such companies, and provide essential risk management solutions for our clients’ securities needs.

Our clients include investment banks, private equity firms, hedge funds, underwriters, and multinational corporations. Wilk Auslander’s experience and knowledge provides our clients with a forcible advocate that develops and executes a strategy tailored to each client’s business and regulatory requirements.

Our securities litigation team vigorously represents our clients in state and federal courts throughout the United States in cases of national importance. We defend class and individual actions under the Securities Act of 1933 and the Securities Exchange Act of 1934, including actions alleging 10b-5 and Sections 11 and 12 liability. We also regularly handle mergers and acquisitions-related litigation.

We have secured numerous successful outcomes for our clients, including dismissals of actions at the pleading stage.

Representative Matters

  • Successfully dismissed several class action lawsuits brought against our clients alleging violations of the Securities Act of 1933.
  • Represent a hedge fund seeking damages for a large international bank’s failure to return more than $22 million of collateral securing credit default swaps.
  • Obtained one of the largest awards ever awarded against an individual — in excess of $10.7 million — in a FINRA arbitration.
  • Secured a favorable multi-million-dollar arbitration award rendered by the London Court of International Arbitration for an investment bank claiming breach of a placement agent engagement agreement arising from the issuer’s failure to compensate the bank for investment services rendered.
  • Obtained a ruling from the Eleventh Circuit Court of Appeals establishing that only actual owners of securities — not affiliates of owners — are deemed beneficial owners subject to the reporting requirements of §13(d) of the Securities Exchange Act of 1934.
  • Successfully represented a large fund manager against a large international bank seeking a multi-million-dollar damages award for breach of series of total return swaps.
  • Successfully negotiated a settlement on behalf of a public biotechnology company in an action arising from the purported sale by a former principal of restricted stock subject to SEC Rule 144.