Trial Victories

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Elsberg Baker & Maruri’s partners have won complete trial and arbitration victories on behalf of our clients in multi-billion dollar and bet-the-company cases where the client’s survival was on the line. Our deep trial experience in such cases means our partners are called on not only to handle such cases from the outset—but also to come in shortly before trial. We have developed a process to work collegially and efficiently with existing counsel as we quickly become familiar with complex fact patterns and the discovery record, distill winning trial themes, and when appropriate leverage our relationships with leading jury consultants to test key theories and trial presentation strategies. 

Some examples of our many trial and arbitration victories include:

Won complete defense jury verdict for Express Scripts against claims brought by New York City Transit Authority, claiming that Express Scripts did not properly address “fraudulent, abusive or excessive” claims for compound drugs and seeking $100 million in damages. After an eight-day trial in the Southern District of New York, the jury awarded $0.
Won trial victory after one-week bench trial in Delaware Court of Chancery in the first COVID-era busted deal case in which the client sought to walk away from a $6 billion deal.  In addition to being released from deal, client obtained full recovery of its $600 million+ deposit and was awarded its full attorneys’ fees and costs.  Affirmed on appeal by the Delaware Supreme Court in an opinion setting the precedent on ordinary course covenants in deal documents. 
Won trial victory in the Delaware Court of Chancery in KCake v. Snow Phipps, a busted-deal case in which private equity buyer Kohlberg & Co. sought to terminate its $600 million agreement to purchase a cake decorating business from private equity seller Snow Phipps. Following a nine-day trial, the Court compelled Kohlberg & Co. to close the deal despite the lapse of its financing, ruling that Kohlberg had caused the failure of its financing and could not use that basis to excuse it from closing. This precedent-setting case established new law on the prevention doctrine.
Won trial victory after a one-week trial in the Delaware Court of Chancery on behalf of Athilon Capital Corp. and its board of directors in Quadrant v. Vertin defeating breach of fiduciary duty, breach of contract, and fraudulent transfer claims which sought hundreds of millions of dollars in damages, as well as a court order that would have forced the client to liquidate its assets and close down the business entirely. The Court issued a post-trial decision that denied all the relief Quadrant requested and permitted Athilon to continue executing the long-term business strategy that Quadrant challenged at trial. The press described this trial victory as a “resounding win” in a “literal bet-the-company case” that set precedent concerning the test for insolvency under Delaware law and that was affirmed by the Delaware Supreme Court.  
Won trial victory after a six-day trial in the Delaware Court of Chancery on behalf of Crestview Partners against billionaire William Koch, defeating fiduciary duty claims and enforcing Crestview’s contractual put and exit-sale rights in connection with Crestview’s investment in Oxbow Carbon.
Won trial victory in New York State court on behalf of American industrialist Len Blavatnik on his claims that JPMorgan violated its obligations under agreed-upon investment guidelines by misclassifying securities backed by risky subprime loans as “asset-backed” rather than “mortgage-backed” securities.
Won arbitration victory on behalf of Rosen Capital on its claims against Bank of America/Merrill Lynch which wrongfully prevented Rosen Capital from executing its options volatility trading strategy. The award was one of the largest investor awards on record.
Won complete arbitration defense victory, after an eight-day merits hearing, successfully defending against a $1 billion claim by a pipeline company arising from an alleged natural gas dedication obligation in a confidential arbitration under Texas law. The claimant was awarded $0.  
Won arbitration victory for Limetree Bay Terminals in a bet-the-company breach of contract dispute concerning the terms of a nine-figure oil storage lease agreement. After a nine-day hearing dominated by complex fact and expert testimony concerning technical engineering concepts, the three-arbitrator panel ruled in Limetree’s favor, ordering the adversary to specifically perform the agreement and to pay Limetree damages.
Won a complete arbitration defense victory awarding claimant $0 in a confidential arbitration concerning expropriation of energy exploration rights. 
Won complete jury defense victory for importer-exporter awarding plaintiff $0 after one-week jury trial in New York State Supreme Court in which plaintiff alleged fraud and breach of contract.
Won arbitration victory on behalf of member of investment bank’s financial institutions group who was alleged to have solicited clients and employees upon departure from competitor bank denying injunctive and monetary relief.
Won complete plaintiff’s jury verdict with punitive damages following a one-week trial in the U.S. District Court for the Central District of California on behalf of entrepreneur and chemist, Dr. Anton Toutov, in a multi-million dollar shareholder dispute concerning attempts by Dr. Toutov’s co-venturers to freeze him out of their lab testing company, KorvaLabs. 
Won arbitration award for hedge fund in confidential arbitration involving dispute over earnout payments under joint venture agreement.
Won arbitration award for reinsurance company in confidential arbitration involving dispute concerning reinsurance coverage available to captive insurer.
Represented U.S. Bank in the first ever trial in an RMBS trustee putback action, which resulted in a settlement of $850 million—the largest recovery ever obtained in such a case.
Represented debtor in connection with the Washington Mutual bankruptcy, one of the largest bankruptcies in history, against challenges to its confirmation plan in a one-week trial in the District of Delaware Bankruptcy Court which resulted in a $6 billion settlement for the benefit of Washington Mutual’s creditors. 
Represented Express Scripts in three-week jury trial in Delaware Superior Court in an M&A case in which the buyer alleged that the seller engaged in fraud in connected with the sales transaction.  Following the trial court’s erroneous jury instruction and exclusion of key evidence the verdict was thrown out by the Delaware Supreme Court on appeal and the matter settled at a fraction of the plaintiff’s settlement demand. 
Represented NBA team against former coach in arbitration before NBA Commissioner. After a one-week merits hearing, matter settled with the NBA team paying a fraction of the amount the former coach sought.
Represented SPAC in one-week bench trial before Delaware Court of Chancery in an expedited busted deal case seeking specific performance of a $2.6 billion transaction or, in the alternative, damages.  Following the liability decision a favorable settlement was reached pending confirmation with the Court.