Litigation Department of the Year Finalist: Milbank
Our depth of talent and our relatively even mix of civil practitioners and former federal prosecutors have made the practice very successful.
October 03, 2018 at 04:15 PM
5 minute read
Q: What are some of the department's most satisfying successes of the past year and why?
A: We had a great year in the courtroom, including victories in a number of big, high-profile cases. The hard-fought cases are the most satisfying wins, especially those with far-reaching effects when the impact of a favorable decision goes beyond the lawsuit at hand.
In the last year, we won the two most important mutual fund trials in a decade, with billions at stake. On behalf of AXA, we won the first “manager of managers” case to proceed to trial and the first case under Section 36(b) of the Investment Company Act of 1940 since the Supreme Court's 2010 decision in Jones v. Harris.
In the second case, we represented Hartford in manager of managers litigation focused on just six Hartford mutual funds. We won at trial again. Hartford has about 80 sub-advised funds and had it lost, the company would have likely faced more lawsuits with potentially billions at stake.
We also prevailed against the US Department of Justice on behalf of music performing rights licensing company BMI in a significant victory that impacts the more than $2 billion music performing rights industry.
Another example is our win on behalf of defendant Citibank in its litigation against South Korean circuit board manufacturer Simmtech. The case — a dispute over foreign exchange option trades — was the first litigated in the United States. However, hundreds of similar cases have been litigated in Korea. Had Simmtech won this U.S. test case, we expect that numerous Korean plaintiffs would have relitigated these lawsuits against the US affiliates. Citibank's victory put a stop to that.
Q: A prospective client in crisis calls and asks why your team should be retained. What is your answer?
A: With the continued growth of our white collar practice, we get these calls with some frequency. When a call comes in, it is usually from a client that has a variety of issues that they need counsel on. We have become particularly adept at handling every aspect of a high-profile crisis. That often involves both civil and governmental proceedings – for example, a DOJ or SEC investigation with private class action lawsuits arising under Section 10(b) or other provisions of the securities laws. These days, the announcement of a regulatory or enforcement matter almost invariably results in class action filings.
Government investigations and plaintiffs' class actions have fundamentally different dynamics. And it is important to approach the enforcement side of the case with an eye to how it will affect the civil side and vice versa. That requires a breadth of expertise and experience. There are other aspects of a “crisis” representation that typically requires attention and counsel. Public relations can be very important. In a case with international conduct, foreign regulators need to be considered. And these cases often involve technical issues requiring specialized expertise (e.g., forensic accounting). We are experienced in dealing with all of these things.
Q: What traits do you respect most in opposing firms and lawyers?
A: We've been lucky to try cases with and against some truly great lawyers. The lawyers and firms that do the best, and that we respect the most, are thoughtful, persuasive and polished in the courtroom. They also tend to be the most civil and professional outside of the courtroom.
Q: What sorts of trends are you seeing in litigation, and what do you think will be the most important development in the law/legal business that will impact your field in the next 10 years?
A: There are two trends that are top of mind right now. Artificial Intelligence should have a tremendous impact on our ability to deliver litigation services more efficiently for our clients. AI should allow us to save costs and hopefully improve our ability to sift through and identify helpful material as we build our case. Another trend that is getting a lot of attention is litigation funding. There seems to be a lot of appetite for it, and my sense is that we are very much at the beginning of that wave.
Q: What is the firm doing to ensure that future generations of litigators are ready to take the helm?
A: Our depth of talent and our relatively even mix of civil practitioners and former federal prosecutors have made the practice very successful. We have excellent training programs for litigation associates at all levels. Our flagship training program is Milbank@Harvard. Beginning in their third year, every associate spends an intensive week at Harvard, returning about once a year for a total of four modules. In these sessions, mid- to senior-level associates learn from Harvard business and law professors about economics, negotiations and other important skills and knowledge not typically taught in law school.
These issues are critical to our clients' businesses and figure prominently in our day-to-day litigation practices. Additionally, our litigation group has developed a program called Advocacy@Milbank, which spans the first six years as an associate. This program focuses on writing, document and deposition discovery, preparing witnesses and hands-on court experience – all key skills to be developed in the day-to-day of litigation. As part of that program, we also partner with New York's Office of the Appellate Defender so that associates can work with partners in handling pro bono appeals, typically arguing them in court. Our goal is for all of our junior associates to argue in court before their third year.
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