LAW BLOG NEWSLETTER
from The Wall Street Journal Online
March 26, 2009 -- 6:30 p.m.
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TODAY'S POSTS
- In Jet City, Allegations of Fast Deals and Fast Cars
- Casino Company Decides to Play Hardball With Milberg
- And the First Week of Spring Brings . . . More Layoffs
- Three Questions for Quinn Emanuel's John Quinn
- 'An Extreme Measure': A Rare Smackdown in Private-Equity Land
- Arthur Nadel (Housemate of Bernie), Runs into Allen Stanford Conundrum
- Oh, You Again? Judges Cracking Down on Repeat Plaintiffs
- In L'Affaire Madoff, the Spotlight Swings to Peter
- The Bird is the (Constitutionally Protected) Word
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In Jet City, Allegations of Fast Deals and Fast Cars
The latest in the onslaught of local prosecutions of mortgage fraud today comes from Seattle where a grand jury has returned a 40-count indictment against seven people alleging they conspired to commit mortgage, bank and wire fraud totaling more than $47 million. Click here for the indictment; here for the story from the Seattle Times; here for a post from last September on mortgage-fraud prosecutions.
According to the Seattle Times story, the seven conspired to fraudulently purchase dozens of homes in Seattle and its tony eastern suburbs at inflated prices. They allegedly got loans using phony buyers.
The Times explains:
"The charges allege they would obtain loans using 'straw buyers' - people who had no intention of living in the home but allowed their identities and credit to be used for a fee - and sometimes using unwitting applicants convinced they could make a buck by buying a home and then immediately reselling it. 'The defendants . . . caused the loan application for the straw buyers and otherwise unqualified buyers to be prepared based upon fraudulent representations related to gross income, employment status, assets and liabilities, and whether the property would be used as a primary residence,' the indictment says."
The defendants then allegedly pocketed the some of the loan proceeds from the escrow accounts to buy two 2004 Lamborghini Gallardo sports cars (one of which is pictured) (recently named the Robb Report's Car of the Year, it seems), among other items.
The indictment comes on the heels of a racketeering lawsuit filed in federal court in Seattle by ING Bank, the nation's second-largest thrift, alleging a criminal conspiracy by an escrow agent, a mortgage broker and 10 couples to defraud the bank of at least $6 million through falsified mortgages.
In that suit, the bank says David and Alla Sobol, two of the defendants in the federal indictment in Seattle, formed a family limited partnership to keep fraudulently gained fees out of creditors' reach.
Attorneys for the men say the Russian-speaking immigrants are victims.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/in-jet-city-allegations-of-fast-deals-and-fast-cars?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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Casino Company Decides to Play Hardball With Milberg
Vestiges of the old Milberg criminal prosecution are back in the news. Lakes Entertainment, a casino company, has filed a fraud and RICO suit against Milberg in Minnesota federal court. Click here for a copy of the complaint.
The suit involves the law firm's use of John Torkelsen, one of its former go-to experts on damages, who pleaded guilty last year in the Milberg criminal case to perjury for failing to disclose that Milberg paid him on a contingency fee basis. Torkelsen got paid only if Milberg recovered damages in cases in which he served as an expert; a conflict, according to prosecutors, because it gave Torkelsen an incentive to trump up damages. Here's a WSJ Law Blog piece on Torkelsen.
Lakes Entertainment claims that Torkelsen was paid on a contingency basis in a 1997 Milberg securities case in which Torkelsen estimated that a predecessor to Lakes Entertainment had caused $165 million in damages. That damages estimate played a role in the securities suit settling for $18 million, according to the suit. Now, Lakes wants that money back. Here's a report from the American Lawyer's Ben Hallman about the suit against Milberg.
Torkelsen once was one of the top damages experts in the securities-fraud field, used by many class-action firms. Milberg lawyers have said Torkelsen once hosted a party in his hometown of Princeton, N.J., that featured a live performance by Aretha Franklin. Guests were transported to the party in limousines, according to lawyers who attended the party. Click here for an earlier WSJ story on Torkelsen.
Milberg told American Lawyer: "This company's claim that our former West Coast partners 'extorted' settlement of a securities case in early 2000 is absurd on its face and will be vigorously defended." [End of post]
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/casino-company-decides-to-play-hardball-with-milberg?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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And the First Week of Spring Brings . . . More Layoffs
Thursdays and Mondays. Those seem to be the days of the week that bring the most bloodletting at the big firms. Today is, sadly, one of those days.
Let's get to it: Dechert announced earlier today that it has "begun the process" of laying off 125 people - a group comprised of 63 lawyers "and other time keepers" and 62 staff. The reductions will reportedly affect offices in the United States, Europe and Asia. Click here for the story from the Philly Legal Intelligencer.
Above the Law has done its usual yeoman's work rounding up the day's other carnage. Clifford Chance has announced it's laying off 24 more transactional attorneys in its New York office, while Edwards Angell lowered the boom on 60 people - 25 lawyer and 35 staffers.
By our rough count, that's 209 people laid off today that we know about. It's not exactly Black Thursday; but definitely a very dark gray Thursday.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/and-the-first-week-of-spring-brings-more-layoffs?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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Three Questions for Quinn Emanuel's John Quinn
Recently, we got to sit down with John Quinn, one of the founders of the LA-based litigation shop, Quinn Emanuel Urquhart Oliver & Hedges. Since the firm's founding in 1986, both Quinn and his firm have done little outside of litigation, and much of that has been not of the motions-practice type, but of the actual courtroom type.
The 400-lawyer firm has done well in recent years. Revenue was $441.9 million in 2008, up 15 percent from 2007's $384.5 million, according to the American Lawyer. The magazine reported that its profits-per-equity-partner in 2008 were $3.3 million, second only to perennial chart-topper Wachtell Lipton. (Quinn's perhaps most noteworthy win in 2008 was the widely-reported jury verdict on behalf of client Mattel against MGA, the maker of the Bratz doll. Quinn successfully argued that MGA had wrongly appropriated the Bratz idea from Mattel.)
That said, the firm hasn't totally escaped the downturn. Quinn confirmed to Above the Law recently that "a handful of people have been let go for lack of work."
Click here for a LB post from 2006 on an American Lawyer feature on Quinn and the firm.
In any event, at the end of a wide-ranging conversation, we threw three specific questions at Quinn, who we thought might have something interesting to say to law students and young lawyers. We were right.
John, you said earlier in the conversation that you were just up in Boston, talking to law students at Harvard about their job searches. What did you say to them?
Well, first of all, I think that many of them are in a tough spot. Looking around at large firms isn't easy these days because the students cannot be sure which firms are going to be around when they graduate. You can look at published numbers, which give a sense as to which firms are more or less profitable, but generally speaking, there's not a lot much more to go on. Law firms aren't exactly known for their transparency.
I also tell students that places known for their culture - for being friendly and collegial and great places to work - aren't necessarily the firms that are going to survive. My advice is that if a lawyer tells you his or her law firm is a "lifestyle" firm, you should run in the other direction. Heller Ehrman was known for having great people and talented lawyers, but something got lost in the equation with that firm, the right attention wasn't paid to the bottom line.
Firms think they can improve a culture by doing things like hosting partner retreats. But I don't think partner retreats are what hold a firm together. Frankly, what holds a firm together is money. That's what holds us together.
What do you look for when you're hiring?
A lot of people, I think, go to law school because they don't exactly know what else to do, they just want to keep their options open and pick up a degree that's marketable. A lot of those folks wind up at full-service firms because as summer associates or whenever, wanting to try a smattering of things.
There's nothing wrong with that, per se, but it doesn't work for us. I'm looking for people who know they want to be trial lawyers. And we want that reflected in the backgrounds of the people we interview. We like to see that someone was on the debate team as an undergraduate, or participated in law clinics that gave them some trial experience. Students on moot court, in clinical programs and who have gained experience working with evidence - that's the kind of student we're looking for.
How does a young lawyer succeed at Quinn Emanuel?
Well, it's hard to encapsulate this into a few sentences, but there are a few things I tell our young lawyers: First, it's important to ask questions. Never leave a partner's office after getting an assignment without knowing exactly what's expected of you and don't be afraid to ask questions.
Second, it sounds basic, but it's worth mentioning: You need to be reliable. If you promise a memo or a piece of research by a certain time, it absolutely has to be delivered on time.
Third, I think that young lawyers just have to realize that this job - performed at a very high level - is labor intensive. That's not at all about billable hours, either. To do well, you simply have to work hard. There's no way to write a great brief without putting in a lot of time, and that's what pretty much every first-rate piece of work requires. It doesn't matter if you're the brightest person I've ever met, the best lawyers work hard. There are no shortcuts.
Lastly, take ownership of the matters assigned to you. Don't just follow orders. Think strategically. Anticipate what needs to be done and do it, before you are asked. Do not be shy. We want to know what you think.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/three-questions-for-quinn-emanuels-john-quinn?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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'An Extreme Measure': A Rare Smackdown in Private-Equity Land
Private-equity firms aren't typically in the business of suing their investors, which is why a suit playing out in Delaware is in some ways so surprising.
Earlier this month, CapGen Capital Advisors filed suit in Delaware state court against Chalice Fund, sponsored by Grail Partners LLC, and WK CG Investment, accusing the pair of failing to make scheduled payments to the fund. According to the suit, Chalice has made a $3.5 million commitment to the fund; WK has made a $1 million commitment. Click here for the WSJ story, from Craig Karman and Peter Lattman. Click here for the complaint.
Tensions between private-equity firms and their investors has grown in recent months, partly because investors have had a hard time keeping up with their commitments. (Private equity firms raise money be getting commitments from investors, which are then paid out in periodic installments.)
But the disputes rarely end up in court, largely because the funds don't want to be seen publicly biting the hands that feed.
Representatives from both investors sounded, well, less than terrified. Donald Putnam, a managing partner at Grail, acknowledged missing the payment but said he hadn't seen the lawsuit or been served with papers. "We had a liquidity squeeze," he said, adding that the missed payment of about $800,000 was "pretty small beer" for a CapGen fund with $500 million in total commitments. He said he wants to stay in the CapGen fund and that Chalice will make the payment, "as soon as possible within the constraints of our operations."
WK CG Investment partner Tom Wamberg said he owed CapGen about $200,000 for the recent call. "It was on my list of things to get around to," Mr. Wamberg said Wednesday. He said he wants to talk with CapGen about making a schedule for payments so he can stay in the fund.
CapGen managing director John Sullivan declined to comment. Handling the suit for CapGen: Joseph McLaughlin and Seth Kruglak of Simpson Thacher.
It is rare for a private-equity fund to sue its own investors. "It is quite an extreme measure," says Sanjay Mansukhani, head of private markets manager research at consultants Watson Wyatt.
Andrew Wright, a New York-based partner for the law firm Kirkland & Ellis, said private-equity firms have several other options before resorting to a lawsuit. A firm can try to find a buyer for the limited-partner's interest, help find a credit line for the indebted partner, or dock the limited partner for an amount equivalent to the cash owed, or more.
"The one advantage" of a lawsuit, said Wright, "is that it sends a message to other limited partners in the fund." For more on the suit, check out this writeup from the K&E private equity newsletter, a surprisingly good read. It reads, in part:
Lawsuits like CapGen have historically been rare for several reasons. As a general matter, capital contribution defaults by LPs have been relatively few and far between. Even amid the current global financial crisis and the tremendous liquidity pressure it has exerted on certain LPs, current anecdotal evidence indicates that the number of actual defaults is still small on a percentage basis. However, the specter of potential LP defaults is certainly a much more real concern today than ever before for the private equity industry.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/an-extreme-measure-a-rare-smackdown-in-private-equity-land?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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Arthur Nadel (Housemate of Bernie), Runs into Allen Stanford Conundrum
We blogged recently on the strange situation going on in the Allen Stanford matter. As of a couple weeks ago, Stanford - caught up in an SEC lawsuit in which he's accused of widespread fraud - couldn't afford a defense lawyer because his assets had been frozen. A lawyer close to the situation told us he thought it was "totally unfair" for a judge to authorize the freezing of money without allowing Stanford access to money to pay a lawyer.
At the time, we thought of this as an unusual situation. But after reading today's newspapers, we've realized it's maybe not as unusual as we might have believed.
According to a report in the Sarasota Herald-Tribune, Sarasota hedge fund operator Arthur G. Nadel, accused of fraud both by federal prosecutors and the DOJ, could soon find himself without his defense team. (Click here and here for earlier WSJ coverage on the Nadel situation.)
U.S. District Judge Richard Lazzara recently denied the motion for payment of attorneys fees filed by Tampa lawyers Todd Foster and Barry Cohen. Nadel and his attorneys had hoped that Judge Lazzara would unfreeze some of Nadel's assets to pay for his defense.
Foster has said his firm may be unable to continue representing Nadel if he cannot pay. The firm had tallied more than $93,000 in legal fees and expenses as of March 11, billing attorney time at what Foster called a "deeply discounted" rate of $300 per hour.
Unlike Stanford, who has not been criminally charged, Nadel can invoke his Sixth Amendment right to counsel and get a lawyer appointed for him. That said, it might not the lawyer of his choice. Nadel could wind up with the federal public defender.
The SEC opposed releasing any assets, saying all of Nadel's money and property came from his hedge fund scheme.
"Nadel has no right to lift the asset freeze, to which he consented only six weeks ago, in order to spend victims' money on his own defense," said Scott Masel, a lawyer with the SEC.
Nadel remains in a maximum security lockup in New York City, unable to post $5 million bail. Nadel is in the same Metropolitan Correctional Center as Bernard Madoff.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/arthur-nadel-housemate-of-bernie-runs-into-allen-stanford-conundrum?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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Oh, You Again? Judges Cracking Down on Repeat Plaintiffs
Should courthouse doors be closed, at least slightly, to some shareholder plaintiffs? That's the question asked in an article in today's WSJ by Nathan Koppel, who shines a light on the phenomenon of certain shareholders turning up time and time again as lead plaintiffs in lawsuits filed against companies.
Some judges are cracking down on the practice, ruling that some plaintiffs are little more than pawns for lawyers in search of big settlements. For instance, Last year, New York federal judge Denise Cote dismissed a suit against J.P. Morgan Chase, after the lead plaintiff, an elderly Arizona investor, admitted he thought his owns claims lacked merit.
A federal law enacted more than a decade ago, the PSLRA, helped thin the number of cases filed by suspect shareholders. But problems persist because the legislation doesn't apply in state court or to all types of federal shareholders suits. As a result, corporate defense lawyers say, shareholder litigation still often is brought by individual investors who know little about the claims they have asserted.
Plaintiffs lawyers and shareholder advocates respond that small stockholders are entitled to bring these suits, and that many do so in good faith, with the goal of improving corporate governance.
A lot of the action on this front is happening in state court, specifically in so-called derivative claims, claims in which a shareholder sues on behalf of a company itself. Often, the remedies in derivative claims aren't huge cash payouts to the shareholders, rather promises to curb some sort of behavior.
These cases, however, can prove costly and distracting to defend, and profitable to the plaintiffs firms, which often recoup fees. "The same plaintiffs file derivative actions in case after case; that suggests they are purely lawyer-driven litigation," says Robert Giuffra Jr., a partner at Sullivan & Cromwell LLP in New York who helped draft the PSLRA bill. "There is a risk that there will be improper bonus payments or bounty payments given to the plaintiffs."
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/oh-you-again-judges-cracking-down-on-repeat-plaintiffs?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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In L'Affaire Madoff, the Spotlight Swings to Peter
Just when we thought the Bernie Madoff story was starting to fade ever so slightly from the public consciousness, two things happened: a thinly-disguised Madoff character shows up on Law & Order Wednesday night (ripped from the headlines!), and, uh, perhaps more importantly, Bernie's brother, Peter, gets himself a little taste of the limelight.
In regard to Peter, it was a strange twist, indeed. A judge in Nassau County, New York on Wednesday temporarily froze Peter's assets in a lawsuit brought by a Brooklyn Law School student who claims he lost a nearly $500,000 investment in Madoff Securities. Click here and here for stories from the WSJ and NYT.
The lawsuit alleges that Peter Madoff served as sole trustee between 2003 and 2008 for a trust established for the student, Andrew Ross Samuels, in 1997 by his grandfather, Martin J. Joel Jr., and breached his fiduciary duty to the trust.
Peter Madoff, as chief rules-compliance officer for the firm, "had full knowledge that it was a fraudulent Ponzi-scheme and nothing more than an unprecedented fraud," the lawsuit alleges.
"We're doing this because we think what Peter did was wrong," said Howard Samuels, a Dix Hills, N.Y., lawyer and Andrew Ross Samuels's father. "Either he knew or should have known" that Bernard Madoff was operating a massive fraud, "and either way, he was grossly negligent," he said.
Peter Madoff hasn't been accused of wrongdoing in the alleged fraud. A lawyer for Peter Madoff didn't return calls seeking comment Wednesday but has previously said his client didn't know about the fraud.
The Times story adds an interesting detail pertaining to Peter. According to the story, an investor who withdrew a money entrusted to Bernard Madoff in July 1985 received a $10,000 check drawn on Bernie's account - but signed by Peter Madoff. The investor, who insisted on anonymity, said other investors in his family had told him that they also received checks in the mid-1980s with Peter Madoff's signature.
Bernie Madoff has insisted that his Ponzi scheme did not begin until the early 1990s, years after his younger brother signed those checks, though prosecutors have insisted that it began much earlier.
See and Post Comments: http://blogs.wsj.com/law/2009/03/26/in-laffaire-madoff-the-spotlight-swings-to-peter?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
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The Bird is the (Constitutionally Protected) Word
Sometimes - not often, but sometimes - reading an account of an event in the format of a legal opinion is more rewarding than reading it in an article or snarky blog dispatch or what have you.
An opinion issued by a federal judge in Pittsburgh on Monday is one such example (click here). It's not particularly Cardozo-esque or anything, but it's a fun read. So we're just going to reprint a bit of it here (no worries, it moves quickly). The opinion opens:
Plaintiff, David Hackbart ("Hackbart"), filed the instant action . . . alleging violation of his rights under the First, Fourth and Fourteenth Amendments to the Constitution of the United States by Defendants, the City of Pittsburgh (the "City") and Sergeant Brian Elledge ("Elledge"). . .
On April 10, 2006, Hackbart was traveling along Murray Avenue in the Squirrel Hill section of the City of Pittsburgh, looking for a place to park his vehicle when he saw an open metered parking space. As Hackbart was attempting to back into the parking space, a vehicle pulled up behind him and effectively blocked Hackbart's entry into the parking space. The driver of the vehicle behind Hackbart would not back up. Frustrated, Hackbart extended his left arm out the window of his vehicle and extended his middle finger to the driver.
At that time, Elledge was in uniform traveling along Murray Avenue in the direction opposite of Hackbart, and was driving a marked City of Pittsburgh police vehicle. As Hackbart was giving the driver behind him the finger, he heard Elledge say "Don't flip him off." Hackbart responded by directing the same gesture toward Elledge. Elledge activated the lights on his patrol car and turned around on Murray Avenue so he was traveling in the same direction as Hackbart. Seeing the lights on the police vehicle, Hackbart proceeded approximately one (1) block to a public parking lot where Elledge conducted a motor vehicle stop.
Elledge approached Hackbart's vehicle and asked him for his driver's license and Social Security number. Elledge told Hackbart that he was going to be cited for disorderly conduct "for flipping the guy off . . ." Elledge issued Hackbart a citation charging him with violation of Pennsylvania's Disorderly Conduct statute. Elledge wrote: "Disorderly Conduct. Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver."
On June 12, 2006, Hackbart attended a hearing before a Magisterial District Judge in Pittsburgh Municipal Court. . . . The District Judge found Hackbart guilty of Disorderly Conduct and imposed a fine as well as court costs in the total amount of $119.75. Hackbart filed a summary appeal from the judgment of the District Judge with the Allegheny County Clerk of Courts. On October 17, 2006, Hackbart, with counsel, attended a hearing on his summary appeal at which the Assistant District Attorney withdrew the disorderly conduct charge against him.
Hackbart then brought the instant action . . . Hackbart alleges that the City has a custom, pattern, practice and/or policy of authorizing its officers to issue citations under Pennsylvania's disorderly conduct statute based upon the use of profane, but not obscene, language and gestures which are expressions protected by the First Amendment.
So what happened? The judge, David Stewart Cercone, ruled that the gesture twice demonstrated by Hackbart does, in fact, constitute speech protected by the First Amendment of the Constitution:
Hackbart, in this instance, was expressing his frustration and anger when he gestured with his middle finger to both the driver behind him and to Elledge. Both gestures are protected expressions under the First Amendment, unless they fall within a narrowly limited category of unprotected speech such as obscene speech or fighting words.
In the end, Judge Cercone denied the defendants' motion for summary judgment and granted Hackbart's, finding that the police officer violated his constitutional rights. A handful of other related issues will proceed to trial.
See and Post Comments: http://blogs.wsj.com/law/2009/03/25/the-bird-is-the-constitutionally-protected-word?mod=djemWEB&reflink=djemWEB&reflink=djemWLB
***
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LAW VIDEO
Matthew Gluck, a partner at Milberg LLP, tells Kelsey Hubbard how his firm hopes to help victims of Bernie Madoff's Ponzi scheme get compensated.
http://online.wsj.com/video/what-madoff-victims-can-expect/87A19AE4-927F-4852-A1BF-9B8E59A20EF8.html?mod=djemWEB&reflink=djemWEB
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TOP LAW NEWS
Should courthouse doors be closed, at least slightly, to some shareholder plaintiffs? A number of lawyers and academics say they should.
http://online.wsj.com/article/SB123802749164042967.html?mod=djemWEB&reflink=djemWEB
* * *
Nvidia filed a countersuit against Intel, alleging breach of contract in a battle over a patent-licensing agreement signed in 2004 between the two chip makers.
http://online.wsj.com/article/SB123810244681351655.html?mod=djemWEB&reflink=djemWEB
* * *
New York Attorney General Cuomo plans to subpoena AIG for information on its credit default swaps, people familiar with the matter say.
http://online.wsj.com/article/SB123808477010749145.html?mod=djemWEB&reflink=djemWEB
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The SEC took action against an alleged Ponzi scheme, obtaining an emergency court order to halt a $68 million fraud involving a Caribbean-based bank and its Swiss affiliate.
http://online.wsj.com/article/SB123809259152750291.html?mod=djemWEB&reflink=djemWEB
* * *
A former Moody's analyst alleged in a lawsuit that he was fired from the company in retaliation for a dispute over a corporate rating.
http://online.wsj.com/article/SB123803625823544607.html?mod=djemWEB&reflink=djemWEB
* * *
A N.Y. judge froze the assets of Peter Madoff until a hearing over a lawsuit.
http://online.wsj.com/article/SB123801533932041227.html?mod=djemWEB&reflink=djemWEB
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