Jeffrey S. Powell, P.C.

Bankruptcy Litigation/Fraudulent Conveyance Actions

• Extended Stay v. Blackstone Group, L.P. (Bankr. S.D.N.Y.): Represented Blackstone and certain senior officers in a lawsuit alleging fraudulent conveyance, fiduciary duty, securities fraud, aiding and abetting, and veil piercing claims in connection with the sale of Extended Stay. The lawsuit, which sought $8 billion in damages, was identified in the November 2011 edition of The American Lawyer as the case most closely watched by litigators across the country and highlighted in Benchmark Litigation, settled for less than $10 million.

• In re ResCap (Bankr. S.D.N.Y.): Represented Ally Financial in veil piercing, fraudulent conveyance, fiduciary duty and breach of contract litigation relating to the bankruptcy of its subsidiary ResCap. The bankruptcy court described the case as “the most legally and factually complex case” over which it had presided; and Creditors’ Committee described the case as “among the most complex and challenging bankruptcy in history.” Claims against Ally by ResCap and its creditors exceeded over $7 billion. Case settled very favorably for Ally following release of examiner’s report.

• In re Charter Communications, Inc. (Bankr. S.D.N.Y.): Trial counsel for Charter Communications in an adversary proceeding and confirmation trial against J.P. Morgan Chase and other parties. Following a 19-day trial, the bankruptcy court ruled in favor of Charter on all contested issues, which enabled Charter to reinstate $11.8 billion in bank and bond debt. Bankruptcy court described the case as “one of the largest and most complex reorganizations ever,” “bet the company litigation,” and “one of the most contested confirmation battles ever conducted;” and described the trial as “the most expertly tried” case over which he had presided. Ruling has been characterized as one of the most significant bankruptcy decisions in more than a decade.

• In re Calpine Corp. (Bankr. S.D.N.Y.): Trial counsel for Calpine in Chapter 11 proceedings described by the court as “the poster child for a successful reorganization . . . The quality of advocacy has been outstanding.” Adversarial proceedings including valuation trial after which Calpine emerged from bankruptcy with the highest enterprise value in U.S. history, and a contested evidentiary hearing resulting in the then-largest DIP loan in U.S. history.

• Calpine Corp. v. Rosetta Resources (Bankr. S.D.N.Y.): Represented Calpine in fraudulent conveyance action against Rosetta Resources arising out of sale of natural gas properties. Case settled for $97 million in cash plus other contractual benefits.

• In re AES Eastern Energy (Bankr. Del.): Represented AES Corp. against fraudulent conveyance claims threatened by creditors of AES Eastern Energy in connection with dividends paid to AES by AES Eastern Energy. Case settled favorably.

• In re Mervyn’s Holdings (Bankr. Del.): Represented Sun Capital Partners in fraudulent conveyance action concerning $1.2 billion purchase of Mervyn’s.

• In re Technical Olympic USA (TOUSA): Represented TOUSA in litigation counseling and bankruptcy proceedings.

Securities and Common Law Fraud

• United States v. Keating; People v. Keating (C.D. Cal.; Los Angeles County, CA): Represented Charles Keating in federal and state criminal trials relating to the collapse of Lincoln Savings & Loan. Federal and state criminal indictments alleged securities fraud, bank fraud, bankruptcy fraud and RICO violations. Both convictions were reversed on appeal without retrial.

• Hawaii Structural Iron Workers Pension Fund v. Calpine Corp. (Santa Clara County, CA): Represented Calpine in securities fraud class action alleging violations of Section 11. Case settled favorably following mediation.

• In re Raytheon Securities Litigation (D. Mass.): Represented Raytheon in federal securities class action. Plaintiffs sought $2 billion in damages. Case was favorably settled following Daubert hearing and on the eve of trial.

• Rubin v. Morgan Stanley (E.D. Va.): Represented Morgan Stanley in securities fraud class action alleging violations of Section 11 in connection with IPO of Advanced Switching Corp. Court granted motion to dismiss.

• Ventre v. Price Waterhouse (N.D. Ill.): Represented Price Waterhouse in securities fraud class action brought by investors in six limited partnerships. Court dismissed complaint with prejudice.

• Gauvin v. General Motors (Cook County, IL): Represented General Motors (GM) in nationwide class action alleging fraud in connection with GM’s decision to discontinue the Oldsmobile product line. Court granted motion to dismiss.

• Converse v. Ameritech (W.D. Mich.): Represented Ameritech in class action alleging fraud in connection with client’s inside wire maintenance service. Court denied class certification.

• McDermott v. Ameritech (Cook County, IL): Represented Ameritech in class action alleging fraud in connection with client’s voicemail product. Court dismissed complaint on substantive grounds.

• Watts v. BP America Production Co. (Pittsburg County, OK): Represented BP in class action alleging that BP defrauded royalty owners by miscalculating royalty payments. Court denied class certification after an evidentiary hearing. Denial of class certification was affirmed on appeal.

• Rees v. BP America Production Co. (LeFlore County, OK): Represented BP in class action alleging that BP defrauded royalty owners in BP’s largest natural gas system in Oklahoma. Trial court dismissed class action complaint and Oklahoma Court of Civil Appeals affirmed the dismissal, marking the first time that an Oklahoma appellate court has held that a class action can be denied because issue preclusion prevents unnamed class members from filing subsequent class actions.

• Chockley v. BP America Production Co. (Beaver County, OK): Represented BP in state-wide class action alleging that BP defrauded Oklahoma royalty owners by miscalculating royalty payments.

• Lobo v. BP America Production Co. (Beaver County, OK): Represented BP in nationwide class action alleging fraud and breach of contract. Complaint alleged that BP’s accounting practices in billing working interest owners in every domestic oil and gas well operated since 1983 were fraudulent. Case settled.

• Durgin v. Technical Olympic USA (TOUSA) (S.D. Fla.): Represented TOUSA in securities fraud class action alleging violations.

Breach of Contract

• Charter Communications: Represented Charter Communications in connection with the acquisition of Time Warner Cable by Comcast Corporation. Matter was resolved by the agreement of Comcast Corporation to divest 3.9 million subscribers to Charter.

• Arcelor Mittal v. Sunoco, Inc. (N.D. Ohio): Represented Sunoco in lawsuit alleging that it breached a supply agreement and resulting in damages exceeding $1 billion. Case settled favorably.

• Innophos, Inc., v. Rhodia, S.A. (New York County, NY): Represented portfolio company of Bain Capital, Innophos, in a lawsuit against Rhodia alleging breach of contract for failing to indemnify Innophos in a $136 million dispute with the Mexican government. Trial court granted offensive summary judgment for client, holding that Innophos was entitled to complete indemnification from Rhodia for all liability assessed by the Mexican government. Judgment was affirmed by the Appellate Division and New York Court of Appeals.

• Chicopee v. Johnson & Johnson (AAA): Represented subsidiary of Polymer Group, Inc. in AAA arbitrations alleging that J&J had breached 10-year supply agreement. Case was settled on a highly favorable basis after first arbitration and on the eve of the second arbitration.

• Honeywell v. General Electric: Represented Honeywell relating to potential claims against GE after GE-Honeywell merger failed to receive EU approval. Matter was settled on a favorable basis.

• Navistar v. A.O. Smith (Cook County, IL): Represented Navistar in breach of contract action against A.O. Smith. Obtained a TRO requiring A.O. Smith to continue to supply Navistar. TRO, which remained in effect for three weeks, saved Navistar more than $60 million.

• Stuart Park Associates v. Ameritech (N.D. Ill.): Represented Ameritech in breach of contract trial in connection with a real estate transaction. Jury verdict for Ameritech after jury deliberated for less than an hour. Verdict was affirmed by Seventh Circuit.

• Monett Metals v. Skolnick (Cook County, IL): Represented plaintiff in breach of contract trial. Retained one month before trial. Bench verdict for client.

• Dan Snyder v. Allegheny International (W.D. Pa.): Represented plaintiff in breach of contract trial. After bench verdict for defendant was vacated by Third Circuit and on the eve of retrial, obtained favorable settlement for client of Sections 10(b) and 11.

Antitrust

• Bodet v. Charter Communications, Inc. (E.D. La.): Represented Charter Communications in antitrust tying class action alleging that premium cable services are illegally tied to rental of set-top boxes. Case settled very favorably on the eve of class certification hearing.

• Grand Jury Investigation: Represented client in a multi-year grand jury investigation into allegations of international price-fixing. Investigation dropped after detailed presentation to DOJ Antitrust Division.

• United States v. NL Industries (E.D. La.): Represented NL Industries in criminal price-fixing trial. DOJ Antitrust Division alleged that client conspired to fix the price of various oilfield services products, after one of three competitors pleaded guilty. Jury verdict for defendants after jury deliberated less than an hour.

• In re Drill Bits Litigation (S.D. Tex.): Represented Camco, Inc. in class action alleging price-fixing and parallel criminal grand jury investigation. Settled civil case on the eve of class certification ruling for less than 40% of plaintiff’s prior demand. Negotiated favorable guilty plea with DOJ Antitrust Division.

• In re Bromine Litigation (S.D. Ind.): Represented Great Lakes Chemical in class action alleging price-fixing of various bromine products. Case settled.

Products Liability

• Naef v. Masonite (Mobile County, AL): Represented Masonite in nationwide class action trial alleging product liability and breach of warranty. Plaintiffs alleged that all hardboard siding manufactured by Masonite during previous 10 years was defective. Retained after nationwide class was certified. Plaintiffs sought more than $7 billion in damages. Court gave five separate jury instructions based on different states’ laws. Split jury verdict led to settlement amounting to less than the cost of the client’s warranty program.

• In re Masonite (E.D. La.): Represented Masonite in federal nationwide class action alleging product liability and breach of warranty in connection with hardboard siding. Court denied class certification.

Professional Malpractice

• Datronic v. Price Waterhouse (Cook County, IL): Represented Price Waterhouse in professional malpractice and conspiracy trial. Six limited partnerships alleged that Price Waterhouse committed professional malpractice in auditing the limited partnerships allowing the general partner to misappropriate more than $80 million. Plaintiffs sought $60 million in damages at trial. Jury awarded less than $750,000.

• Mack v. Whyte & Hirschboeck (Milwaukee County, WI): Represented defendant in professional malpractice action. Retained after prior settlement was vacated. Briefed and argued summary judgment. While summary judgment motion was pending, case settled for 30% of amount that client previously had agreed to pay.

Class Actions & Other Matters

• Simmons v. Charter; Schnetzler v. Charter (D. Conn.): Represented client in putative nationwide class actions alleging violation of the Telephone Consumer Protection Act (TCPA). One case voluntarily dismissed at the close of discovery; other case is ongoing.

• False Claims Act Investigation: Represented client in criminal and civil False Claims Act investigation by federal government. After multiple presentations, no criminal or civil charges were filed.

• Rabbani v. General Motors (N.D. Fla.): Represented General Motors in racial discrimination lawsuit challenging the validity of client’s Minority Dealer Development Program, GM’s affirmative action program for minority car dealers. Court granted GM’s motion for summary judgment. Summary judgment was affirmed by the Eleventh Circuit.

• In re Motorola Grand Jury Investigation (Alabama): Represented Motorola in publicly-announced criminal grand jury investigation into allegations of bribery in connection with contract awarded by City of Birmingham, Alabama. Grand jury investigation was terminated after presentation to Alabama Attorney General’s Office.

• In re TOUSA: Represented TOUSA in publicly-announced informal SEC inquiry.