There were some terrific contenders for Litigator of the Week.

Our runners-up include Greenberg Traurig partner Marc Mukasey, who persuaded a federal jury in Connecticut to acquit former UBS AG trader Andre Flotron in what the firm says is the first successful defense against a spoofing charge. Flotron was charged with manipulating commodities prices of futures contracts for gold, silver, and metals by spoofing, or using trick orders. (And no, Mukasey is not joining Rudy Giuliani on the Trump legal team.)

In the trial's closing arguments Mukasey asserted the government's case was a “prosecution by statistics,” that there was no collaboration needed to sustain a conspiracy charge, and that the government failed to present a single document where Flotron had agreed to spoof.

We were also impressed by Proskauer partner Margaret Dale, who represented the Fédération Internationale de Football Association, or FIFA, in a multi-million dollar breach of contract suit by Worldwide Subsidy Group. After less than an hour, an eight-person jury in U.S. District Court for the Central District of California returned a unanimous verdict in favor of FIFA.

And a King & Spalding team that included Israel Dahan, Richard Marooney Jr., Peter Isajiw and Robert Meadows won huge in a proxy fight that resulted in Xerox firing its CEO and half of its board. Representing the company's largest shareholders, the lawyers won an injunction halting the company's “massively conflicted” merger with Fujifilm Holding Co., which would have provided no cash payment to Xerox shareholders.

But we gave the prize to the young litigator who on retrial made the criminal charges against Bill Cosby stick.  On leave from her new job as an associate at Stradley Ronon Stevens & Young, Kristen Gibbons Feden turned the tables on Cosby and his high-profile defense team.

ALM's Lizzy McLellan has the story.

 

Litigator of the Week: America's Dad Found 'Guilty, Guilty, Guilty'

By Lizzy McLellan

On a rainy Saturday last June in Norristown, Pennsylvania, a 12-member jury delivered the news that many had guessed by that point: they were unable to agree on whether Bill Cosby was guilty or not of sexual assaulting Andrea Constand.

Judge Steven T. O'Neill declared a mistrial, and without a moment's hesitation, Montgomery County District Attorney Kevin Steele pledged to retry the case.

That retrial ended last week with a different result, when the jury on April 26 found Cosby guilty on three counts of aggravated indecent assault.

The retrial was different in many ways—a new defense team, and more witnesses from both sides—but prosecutor Kristen Gibbons Feden says her strategy was the same.

“I'm always of the strong belief that our case rose and fell with Andrea Constand. Her testimony at the first trial and at the second trial was… unwavering,” Feden said. “Yeah, we got some additional evidence to present to the jury and that's always powerful, but we put on the same case we did the first time.”

Of the three prosecutors who handled Cosby's retrial—Steele, Feden and M. Stewart Ryan—Feden was the first to meet Constand. In the summer of 2015, after sealed court documents became public and shed new light on Constand's allegations, then-District Attorney Risa Ferman reopened the case. Ferman sent Feden to Toronto with detectives to meet Constand.

“We wouldn't be here if not for her,” Steele said of Feden after the verdict was announced. “She was adamant about what we should do.”

Feden's reasoning was simple. The evidence was there, she said, so “it was the right thing to do.”

Feden stuck with the case, even after going into private practice as an associate at Stradley Ronon Stevens & Young last year. (She took a leave of absence from the firm to re-try the case.) She and Ryan shared the closing arguments, and Feden again questioned Constand when she took the witness stand.

While she didn't expect that witness testimony to change, a number of elements in the case did. In a win for the prosecution, O'Neill had allowed five women to testify about their sexual assault allegations against Cosby—four more than at the first trial.

And in the meantime, Cosby's entire defense team changed.

“You had a transcript of the first trial. They knew what we were going to do,” Feden said. “So it was a difficult challenge for me to try to put on the same exact case, but do it in a different way so I could try to catch them off-guard if I could.”

But the new defense team, led by Tom Mesereau and Kathleen Bliss, brought a different strategy to the table. At the first trial, the defense tried to show Cosby and Constand's relationship as consensual and romantic. Bliss and Mesereau—the latter best known for getting Michael Jackson acquitted—painted Constand as a liar and a “con artist” motivated by money.

(Even after the retrial, Cosby's wife, Camille Cosby, continued to make that argument. She issued a statement Thursday contending her husband is innocent and calling for an investigation of the Montgomery County prosecutors. A spokeswoman for the DA's office declined to respond.)

“I wouldn't have done my due diligence if I didn't look them up,” Feden said of the new defense team—not to change her own strategy, but to prepare her witness.

“You have to let them be prepared,” she said. “This is what they're going to try to do to your reputation. This is the kind of assassination you can expect. Are you OK with that?”

And Feden, in her closing argument, turned the tables.

“A con is a person who uses and gains the confidences, assurances and trusts of other people through deceptive means,” Feden said in court. She walked briskly toward Cosby's chair and pointed a finger down at him. “The perpetrator of that con is this man sitting right here.”

In the courtroom, she scolded Bliss for perpetuating “rape myths” and assassinating the character of Cosby's alleged victims. She told the jury that Cosby was “Nothing like the image he played on TV.”

Feden said she saw Cosby's case just like any other sex crimes prosecution. But she acknowledged that unlike many defendants, Cosby had built a reputation over the decades, and an image as “America's Dad.”

“It's an important message to the jury that this was exactly what he used to gain the confidence and trust of all of these unsuspecting women,” Feden said. “I thought it was on the forefront of everyone's mind, that he's a good person, but I needed them to know that was part of it.”

Despite the prevalence of the #MeToo movement, and the growing national conversation about sexual assault, Feden said she doesn't think that played a role in the jury's assessment of Cosby or Constand. And with regard to this verdict in the context of that conversation, she said, “It's important to note that this was one case, one crime against one victim.”

Still, Feden said she hopes the case will send a message to victims of crime that law enforcement will prosecute a case when they have the evidence, even if the defendant is wealthy and powerful.

But that wasn't what she thought of when the verdict came in.

“For the jury to come back and say guilty, guilty, guilty, the only thing I could think about was how proud of Andrea I was that she was able to withstand that level of scrutiny not once but twice, but she was able to stand up to her offender,” she said. “That's the type of happiness I get with any guilty verdict.”

 

Shout-Out: Williams & Connolly for the Win

Ex-bond trader Jessie Litvak on Wednesday had his securities fraud conviction reversed by the U.S. Court of Appeals for the Second Circuit, thanks to a team from Williams & Connolly.

The firm inherited the case in 2015, after Litvak, a trader with Jefferies & Co., was convicted on 15 counts of securities fraud and other charges. It was the only criminal case brought against an individual in connection with TARP (the government bailout program in the wake of the financial crisis).

In December 2015, partner Kannon Shanmugam convinced the Second Circuit to reverse the TARP-related conviction and vacate and remand 10 securities fraud charges. Firm chairman Dane Butswinkas handled the retrial, where a Connecticut federal jury in January convicted Litvak on a single count of fraud.

Litvak again appealed, and Shanmugam again argued the case before the Second Circuit in December.

On May 3, the appellate court again reversed the trial court, ruling that the lower court judge erred in admitting evidence of whether the buyer representing the counterparty believed Litvak was an agent acting on the counterparty's behalf.

“At best, [the] testimony about the supposed agency relationship had a high probability of confusing the jury by asking it to consider as relevant the perception of a counterparty representative that was entirely wrong,” the Second Circuit held. At worst, it “would mislead the jury.”

 

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