Last week we covered a controversy down in south Florida involving Greenberg Traurig. The firm was replaced as counsel in a particular case by its client, TD Bank, after a partner at the firm denied the existence of a document that, it turned out, actually does exist. The partner who allegedly made the statement is no longer with the firm, and next month, Judge Marcia Cooke (S.D. Fla.) will hold a hearing to determine whether the bank should be held in contempt of court as a result of this apparent screw-up.

This does not sound good, to be sure. But subsequent developments, as well as a closer examination of the situation, suggest that GT’s culpability may be overstated….

In our original story on the episode, we wondered:

Is Greenberg Traurig throwing [partner] Donna Evans under the bus (or autobús, since we’re in Miami)? It seems unlikely that she’s the lone gunwoman or the one bad apple, simply by virtue of the way that large firms staff their cases. Did any other partners, in statements made in open court or in written filings, also deny the existence of the “Standard Investigative Protocol”? Was Evans advised by one of her associates that the document did not exist?

And what about the client? Did any employees or in-house lawyers at TD Bank tell Greenberg Traurig as outside counsel that there was no such thing as a “Standard Investigative Protocol”?

The answers to some of these questions might be “yes.” From a more recent article by Paul Brinkmann of the South Florida Business Journal:

A growing controversy over TD Bank’s production of documents in a federal lawsuit in Miami involves the bank’s top executive for fraud and money-laundering detection, Senior VP Vince Auletta….

Another bank employee, Amanda Spencer, said under oath Dec. 4 that she used a document called “Standard Investigative Protocol.” So, the plaintiffs attorney David Mandel of Miami, requested it.

Auletta filed an affidavit dated Jan. 12 that said, “To my knowledge there is not a document titled ‘Standard Investigative Protocol’ which was utilized by the AML (anti money laundering) or EDDO departments in 2008 and 2009.”

On Tuesday, however, the bank said it does have such a document, and produced it – three months after the jury slammed TD Bank (NYSE: TD) with a $67 million verdict that is now on appeal.

The foregoing facts would appear to reduce Greenberg Traurig’s blame in this matter. If a senior VP files an affidavit denying the existence of a document, that’s a statement that outside counsel should be able to take to the bank.

And there’s more. A diligent ATL source consulted the docket in the case — Coquina Investments v. TD Bank, an action seeking to hold TD Bank liable for losses suffered by investors in the infamous Scott Rothstein Ponzi scheme — and sent us some thought-provoking observations….


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