Mitchell Silberberg Blasts Receiver's 'Avarice' in Bid to Derail $260M Malpractice Lawsuit
The firm accuses Akerman's Michael Goldberg of "a rapacious attempt to transform a garden-variety legal malpractice lawsuit into an unsubstantiated criminal indictment of an attorney and law firm."
December 02, 2019 at 05:30 PM
4 minute read
As Americans spent their Black Friday shopping for deals, Los Angeles-based Mitchell Silberberg & Knupp was fighting to fend off a $260 million legal malpractice lawsuit in Miami federal court.
The law firm's accuser is Michael I. Goldberg, the chairman of Akerman's fraud and recovery practice. As the receiver for ski resort company Jay Peak Inc. and related businesses, he claims the firm and a New York partner, David Gordon, conspired with a group of Vermont businessmen who were investigated by the U.S. Securities and Exchange Commission and eventually charged with criminal fraud. Goldberg alleges, among other things, that Mitchell Silberberg and Gordon misled state and federal regulators.
The law firm shot back on Friday, filing a 22-page motion to dismiss the amended complaint Goldberg lodged earlier this month.
"In 75 paragraphs of new allegations, the receiver alleges that a lawyer and his law firm employer engaged to defend an SEC investigation somehow 'conspired' with clients subject to that investigation—based solely on legal advice provided within the scope of representation," Mitchell Silberberg said in its motion to dismiss. "To that end, the amended complaint laces benign allegations with words like 'concoct,' 'mislead,' and 'cover-up' to ascribe nefarious intent where none exists."
Mitchell Silberberg and Gordon represented Ariel Quiros, William Stenger and William Kelly as they were being investigated by the SEC in 2013 and, later, by the state of Vermont. In 2016, the SEC accused Quiros and Stenger of operating a "Ponzi-like" scheme, in which more than $200 million of the $350 million they took from investors went to fund other projects, including $50 million on Quiros' personal expenses.
The SEC's actions led to the businessmen's assets being frozen and placed into receivership. The U.S. attorney for Vermont followed up on the SEC charges and filed criminal charges against Quiros, Stenger, Kelly and a South Korean national in May.
The criminal indictment accused the four men of misleading and defrauding foreign investors who thought they were pouring money into a biotechnology company that would be built and operated in Newport, Vermont. These investors were making their contributions through the EB-5 program, where they could obtain U.S. lawful permanent residency in exchange for their investments.
Mitchell Silberberg said it only worked with Quiros and the others on the SEC and other civil investigations, and was paid $800,000 for the work. That's way more than the $250 million Goldberg is alleging that the firm and Gordon caused in damages, Mitchell Silberberg pointed out.
"Plaintiff's avarice cannot be overstated," the firm's motion says.
Goldberg in his amended complaint asserted claims of legal malpractice, breach of fiduciary duty, civil conspiracy and abetting breach of fiduciary duty. Mitchell Silberberg derogatorily referred to Goldberg's lawsuit as a "shotgun pleading" because it incorporates every fact in the allegation into each of the seven counts.
"The Amended Complaint is a rapacious attempt to transform a garden-variety legal malpractice lawsuit into an unsubstantiated criminal indictment of an attorney and law firm that acted at all times within the scope of representing clients," Mitchell Silberberg wrote. "The receiver crosses the line of zealous advocacy and seeks to gain advantage in this civil case by trying to link a defense lawyer to his former clients' alleged criminal conduct."
Mitchell Silberberg and Gordon are being represented by a team of attorneys from Gunster, a Florida law firm. Goldberg is being represented by attorneys from Levine Kellogg Lehman Schneider Grossman. Neither side immediately responded to requests for comment.
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