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More About the TD Bank To-Do: In Defense of Greenberg Traurig

Is Greenberg Traurig getting a bum rap in the TD Bank litigation?

By David Lat

onApril 30, 2012 at 11:10 AMAugust 7, 2012 at 9:25 AM

This tipster told us:

1. While Paul Brinkmann and others publishing articles have claimed that TD Bank has acknowledged that its counsel made “false statements” to the Court, the pleading filed with the Court actually says only that TD Bank’s counsel has determined that statements previously made were not accurate and should no longer be relied on. Most people do not consider a statement that one believes at the time and later learns is not accurate to be a “false statement.” So anyone who has not read the actual pleading should question the credibility of news reports saying that TD Bank has “acknowledged that is counsel made false statements.” That isn’t really true. In fact, one could fairly say that Paul Brinkmann’s statement is “false.”

Interesting. There would appear to be a big difference between saying document X doesn’t exist when you know it does — that sounds like, well, lying — and saying document X doesn’t exist based on what you know at the time, which later turns out to be incorrect.

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UPDATE (5/24/2012): The South Florida Business Journal has updated its story to replace the word “false” with “incorrect,” in both the body of the story and the headline. We have updated accordingly.

2. What the publicly filed Notice says is that TD Bank’s counsel determined that there is a document dated 2005, revised in January of 2007 that has the title, “Standard Investigative Protocol.” Rothstein and RRA ran their scheme out of Gibraltar Bank during that timeframe, not TD Bank. So query whether the document had anything to do with the scheme or the case? That has yet to be determined.

3. If it turns out that the “Standard Investigative Protocol” is what it sounds like — a generic (and perhaps even outdated) document that says investigators should do what is “standard,” then what would be the motive for GT or TD Bank to deliberately hide and lie about the document? If the document isn’t incriminating, then isn’t it more likely it was a mistake rather than any sort of wrongdoing?

That certainly seems possible. Perhaps these points will emerge next month, on behalf of the defense at the contempt hearing. Stay tuned.

UPDATE (5/21/2012): Here’s what happened at the contempt hearing.