Wachtell Beats CVR's Attempts to Resuscitate Malpractice Suit, Shifting Focus to Countersuit
An attorney for CVR has vowed an appeal, while litigation between Wachtell and CVR continues in New York state court. The law firm has accused Carl Icahn-controlled CVR and its lawyers of misusing confidential documents.
October 11, 2019 at 02:17 PM
4 minute read
A Manhattan federal judge has denied again CVR Energy's attempts to pursue a legal malpractice case against Wachtell, Lipton, Rosen & Katz, writing that the central allegation in CVR's case boiled down to "mere accusations of an error in judgment."
Still, CVR attorney Herbert Beigel vowed to continue fighting. "In view of the previous rulings by the court, I can't say I'm surprised by it," he said in a brief interview Friday. "We're looking forward to an appeal to the Second Circuit."
The latest court decision, issued Wednesday by Judge Richard Sullivan of the U.S. Court of Appeals for the Second Circuit, shifts the focus to Wachtell's state-court countersuit that accuses Carl Icahn-controlled CVR and its lawyers of misusing confidential documents.
The refining and fertilizer company had alleged in the federal malpractice case that Wachtell failed to properly advise it about the unusual terms of the financial-advice agreements CVR struck with Deutsche Bank and Goldman Sachs while Icahn was making moves to take control of the company.
Sullivan dismissed much of that malpractice case last year. But he permitted CVR to recast one of its theories of malpractice, allowing CVR to amend its pleading based on findings by the Securities and Exchange Commission that CVR inadequately disclosed the bank fee arrangements. The company alleged that it told investors that financial-advisory agreements it struck with the two banks were "customary" based on bad advice from Wachtell.
After overseeing the case as a district court judge, Sullivan held onto it after he was elevated to the Second Circuit.
Almost 11 months after the motions were fully briefed, Sullivan on Wednesday granted Wachtell's request to finally dismiss CVR's suit and denied CVR's request for another stab at the complaint. Sullivan said the case was too weak to go forward.
Merely invoking an SEC order that faulted CVR for describing the banking fees as "customary" wasn't enough to hold Wachtell liable, the judge wrote. The judge described CVR's arguments as "misguided," "not relevant," "not authorized" and ultimately fruitless.
"Plaintiff has been given two chances to amend its complaint as to its SEC-disclosure malpractice claim," the judge wrote. "Yet even with the benefit of full discovery, plaintiff only asserts conclusory allegations of malpractice based on the SEC's order."
CVR originally hired Wachtell to resist a takeover attempt by Icahn and his companies. Icahn ultimately took control of the company and refused to pay the $36 million in fees sought by Deutsche Bank and Goldman Sachs. CVR blamed Wachtell for letting the old management sign deals with the investment banks that resulted in them being paid more if Icahn succeeded with his takeover, when the opposite result was more desirable.
The banks eventually sued CVR for their fee and won, but in the process, Wachtell alleges, CVR and its lawyers used the discovery process to gather evidence that they hoped to use to hold Wachtell liable. The New York law firm alleges, in the state-court lawsuit against CVR, that the scheme was retribution for its frequent legal efforts to oppose Icahn's takeover attempts.
At arguments in that case last month, Wachtell's lawyers at Holwell Shuster & Goldberg attacked CVR attorney Beigel, saying he passed confidential documents from the law firm onto affiliates of Icahn. Major details of what Wachtell described as discovery abuses by CVR and its lawyers emerged at the summary judgment argument before Justice O. Peter Sherwood. The judge didn't issue a decision at the hearing but seemed skeptical of some of CVR's argument.
Michael Shuster, a partner at Holwell Shuster who represents Wachtell, didn't respond to a comment request about the Wednesday decision.
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