David Boies rose to fame by taking on Microsoft Corp. in a massive 1990s antitrust case. The case eventually settled, but not before the lawyer eviscerated Bill Gates in deposition testimony that was later shown at trial.
(Bloomberg) — David Boies rose to fame by taking on Microsoft Corp. in a massive 1990s antitrust case. The case eventually settled, but not before the lawyer eviscerated Bill Gates in deposition testimony that was later shown at trial.
Jamie Dimon would no doubt like to avoid a similar fate.
JPMorgan Chase & Co.’s recent lawsuit against former executive Jes Staley sets up a likely settlement by the bank of claims that it facilitated Jeffrey Epstein’s sex-trafficking, several legal experts said. The bank filed its March 8 complaint after weeks of unsavory revelations about Staley’s relationship with Epstein put forth in two suits against JPMorgan, one of which was filed by Boies on behalf of Epstein victims.
The bank denies the accusations in both cases and maintains that its claims against Staley don’t affect its position that the suits are without merit. JPMorgan is set to argue its motion to dismiss the cases before US District Judge Jed Rakoff on Monday. Hours before the hearing, Rakoff authorized the deposition on Wednesday of Mary Erdoes, JPMorgan’s private banking chief. The bank’s lawyers have been fighting efforts to have Dimon face similar questioning, arguing the CEO was not involved in discussions about Epstein’s accounts.
JPMorgan declined to comment for this story. A lawyer for Staley, who previously held Erdoes’s position at the bank, also declined to comment. Staley has previously denied involvement in Epstein’s sex-trafficking.
Carliss Chatman, a former litigator who is now a law professor at Washington and Lee University, said a settlement would be an opportunity for the bank to acknowledge Epstein victims’ pain but then shift the blame to Staley.
“What they would be saying is ‘Yes, we acknowledge this guy harmed you and agree he is a bad actor we negligently hired,’” she said.
‘Crisis Litigation 101’
Chatman and several other legal experts said JPMorgan’s move against Staley is as much about public relations as bolstering its legal position. The bank’s arguments are actually fairly strong, they said, but JPMorgan will not want to withstand the steady drumbeat of headlines that going to trial would guarantee.
“Big companies always tend to settle for PR reasons,” said Chatman. “This just looks bad, it really does. The PR move — ‘I blame someone else and settle’ — it is kind of crisis litigation 101.”
Tanya Pierce, a professor at Texas A&M University law school, agreed. “I don’t think this will go to trial with JPMorgan as a defendant,” she said. “I think the PR damage is too great.”
As such, it’s “good strategy” for the bank to go after Staley ahead of trying to negotiate a settlement, Pierce said.
“Settlement strategy revolves in large part around the threat of what could happen in litigation, if a case were to actually be tried in front of a jury,” said Pierce. “So bringing Staley into the lawsuit focuses attention on him and on his actions and away from JPM and its actions.”
If JPMorgan does settle, it wouldn’t be the first deal obtained by Boies and law partner Sigrid McCawley for Epstein victims. Prince Andrew last year settled for undisclosed terms a lawsuit filed by the lawyer on behalf of Virginia Giuffre, who claimed the British royal was one of several powerful men to whom Epstein “lent” her for abuse.
The settlement came a month after Andrew lost his motion to dismiss the case in Manhattan federal court, which resulted in Buckingham Palace stripping King Charles’s younger brother of his honorific titles and royal patronages.
Giuffre made similar allegations against Harvard Law School Professor Alan Dershowitz, who represented Epstein during a Florida investigation into abuse allegations and helped negotiate a lenient non-prosecution agreement. But Dershowitz hit back with a countersuit alleging extortion. The parties last year reached a deal in which no money changed hands and Giuffre said she “may have made a mistake” in identifying Dershowitz.
In a recent interview, Dershowitz declined to discuss the settlement but made clear he still harbored hard feelings toward Boies.
“He goes after people — I am the exception — who can’t fight back,” Dershowitz said, “and that’s how you get settlements.”
Boies, who declined to be interviewed, has also been criticized for using hardball tactics against accusers of his former client Harvey Weinstein and a journalist investigating Theranos Inc., where he was a board member. The lawyer’s aggressive style has both fans and detractors.
No Legal Slam Dunk
“He likes taking on big fights and to be in the middle of the action,” Daniel Rubinfeld, a New York University law professor who has worked on the Microsoft case with Boies, said. “To me he is what’s good about the plaintiff’s bar.”
JPMorgan is Boies’s biggest target yet in his yearslong crusade on behalf of Epstein victims. Boies and McCawley have represented Epstein’s victims pro bono in previous cases. A spokesperson for Boies didn’t respond to a request for comment on whether the suit against JPMorgan was also being handled pro bono.
From a legal standpoint, the claims against JPMorgan are by no means a slam dunk.
“Obviously now everyone knows a lot about Epstein and what he has been up to,” said former federal prosecutor Nadia Shihata, who prosecuted one of the cases against R Kelly. “But the question will be ‘What did JPMorgan know at the time and does that rise to the level of knowledge or should-have-known?’”
If US District Judge Jed Rakoff dismisses the suits after Monday’s arguments, it may be because he wasn’t convinced plaintiffs showed that what Staley knew, JPMorgan knew as well. The bank has said that allegations that Staley “personally observed” Epstein’s sex-trafficking and that the two exchanged “inappropriate” emails in which they appear to refer to young women using the names of Disney princesses reflect activity that were outside the scope of Staley’s employment.
JPMorgan clearly aimed to put more distance between it and Staley in its suit last week, describing him as an employee whose “acts of disloyalty occurred repeatedly, lasted for years, and persisted despite numerous opportunities to correct them.”
Not everyone thinks JPMorgan’s gambit to separate itself from a longtime employee will work though. Lawyer Kim Adams, who has litigated many human-trafficking cases, said she thought the suit against Staley could ultimately backfire on the bank.
“From a survivor perspective, it’s a shirk of responsibility for their own actions,” said Adams. “They are trying to diversify the guilt here and the responsibility. The survivors may well look at this as a way of them acknowledging what happened and adding credibility to plaintiff’s case.”
Chatman said JPMorgan may succeed in having some parts of the suits dismissed but that the judge was likely to leave for a jury the question of whether or not JPMorgan was responsible for Staley’s actions.
Bad Atmospherics
Judges are “loathe to dismiss” claims about employer responsibility, she said.
She said JPMorgan has a strong defense, though, that it doesn’t have any responsibility to non-customers harmed by a person using his own money that just happened to be deposited at the bank.
“I get why they are naming the banks, but I think it’s hard case,” Chatman said. The plaintiffs argue Epstein used his accounts to fund his sex trafficking venture, including to pay victims hush money and finance the private jet that transported them.
Whatever the merits of its arguments though, JPMorgan almost certainly wants to avoid making them to a jury also faced with “grievously hurt” young women, said Adam Zimmerman, a Loyola Law School professor.
“Assuming it goes to a jury, it has all the atmospherics of a bad corporate behavior case combined with Jeffrey Epstein,” Zimmerman said. “It’s not something you can imagine a typical Fortune 500 company wanting to have to deal with.”
–With assistance from Hannah Levitt.
(Updates with details of Mary Erdoes deposition in fourth paragraph.)
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