In Memoriam: Mario M. Cuomo (1932-2015)

It is with great sadness that the partners, counsel, associates, and staff of Willkie Farr & Gallagher LLP mourn the passing of our distinguished friend, partner and counsel, Mario M. Cuomo.

Governor Cuomo exemplified our firm’s 125-year tradition of practicing law at the highest level.  His 20 years of service to clients epitomizes the true pinnacle of our profession: sage advisor and formidable adversary. Governor Cuomo gave generously of his time to colleagues and staff  at Willkie and we admired him greatly. At our firm, he continued his legendary oratory, with talks that were thought-provoking, intellectually elegant, and always entertaining. He frequently devoted time to speak with those whose path he crossed daily in our offices, and particularly enjoyed speaking with young lawyers starting out in their careers, sharing his insights about the rule of law and its place in society, the contribution and influence of immigrants, and state and national politics.

Following an illustrious career in public service, Governor Cuomo  joined our firm as a partner on February 15, 1995 having served as Governor of New York State for three terms, and he remained a valued member of the Willkie family until his death.  He was elected New York State's 52nd Governor in 1982 and won re-election in both 1986 and 1990. He was the longest serving Democratic governor in the modern history of New York State.  At Willkie, he specialized in litigation, corporate transactions, special corporate investigations, and mediations.

Governor Cuomo was admitted to the Bar of the State of New York, the United States District Courts for the Southern and Eastern Districts of New York, the United States Court of Appeals for the Second Circuit, and the United States Supreme Court. He received a J.D. (summa cum laude) from St. John's University School of Law in 1956, where he tied for top-of-the-class honors, and a B.A. (summa cum laude) from St. John’s University in 1953.

He served 13 years as an adjunct professor at St. John’s University School of Law and clerked for New York State's highest court, the Court of Appeals, under Judge Adrian P. Burke.

Governor Cuomo was the recent recipient of a “Lifetime Achievement Award” from the New York Law Journal in recognition of his career accomplishments and the profound impact he has made on the law, in New York’s legal community, and as New York State’s Governor.

We send our deepest sympathies to Mario’s wife, Matilda, to his children, Governor Andrew Cuomo, Dr. Margaret Cuomo, Maria Cuomo Cole, Madeline Cuomo O'Donoghue, Christopher Cuomo, and to all of his extended family.

Firm Obtains Series of Victories for Lehman Brothers in High Profile RMBS Litigation

Willkie has scored a series of significant victories on behalf of client Lehman Brothers Holdings Inc. In a series of rulings, the United States District Bankruptcy Court for the Southern District of New York denied RMBS Trustees’ request to increase the potential liability of Lehman Brothers by more than $7 billion. In addition, the court approved the protocol requested by Lehman requiring the RMBS Trustees to establish liability through a loan-by-loan review, rather than the Trustees’ request to estimate liability through sampling. See Reuters: Ruling Crushes Lehman RMBS Investors Hopes.

Following Lehman’s 2008 bankruptcy filing, various financial institutions that served as trustees to RMBS Trusts into which Lehman sold residential mortgage loans filed proofs of claims alleging that Lehman was required to repurchase the loans due to the presence of breaches of representations and warranties. The RMBS Trustees also alleged various document defects in the mortgage loan files provided by Lehman. Pursuant to a 2012 Bankruptcy Court order, Lehman established a $5 billion reserve to cover the claims.

In August 2014, four RMBS Trustees (representing 405 separate RMBS Trusts) filed a motions to increase the reserve from $5 billion to $12.143 billion, which the court denied. The Trustees had sought approval to estimate and allow their claims against the Lehman estate in that amount pursuant to section 502(c) of the Bankruptcy Code. In support of their motions, the RMBS Trustees presented a statistical sampling analysis of 5,000 loans, an analysis which they claimed valued their claims at $12.143 billion.

Represented by Willkie, Lehman opposed the motions, arguing that estimation of the claims under section 502(c) was inappropriate because the claims were neither “contingent” nor “unliquidated.” In response, Willkie also presented its own expert analysis, which demonstrated the flaws in the RMBS Trustees’ sampling methodology. Lehman cross-moved for an order requiring the RMBS Trustees to prove their claims on a loan-by-loan basis pursuant to a detailed claim resolution protocol. In support of Lehman’s cross-motion, Willkie argued that the underlying agreements required loan-level proof.

On December 10, 2014, the Court held a full-day evidentiary hearing to hear arguments on various pending motions. After argument, the Court denied the RMBS Trustees’ motion to estimate and allow their mortgage loan repurchase claims against the Lehman estate at $12.143 billion. The Court also ruled that the RMBS Trustees would, at this point, be unable to rely on statistical sampling to prove their claims for alleged breaches of representations and warranties across 209,000 mortgage loans. The Court later issued an order on December 29, 2014 accepting Lehman's position that the RMBS Trustees be required to prove those claims on a loan-by-loan basis. The RMBS Trustees now must begin a loan-level review of all the loans in the various trusts to prove their breach of representation and warranty claims. Pursuant to the court's order, the RMBS Trustees have until March 31, 2016 to complete their review of all the loan files at issue and submit their claims to Lehman.

Lehman was represented at the hearing by a multidisciplinary Willkie team, including partners Todd Cosenza, Paul Shalhoub, Joseph Baio, Roger Netzer, Brian O’Connor and Tom French, and associates Chris Miritello, Cristina Hagglund, Michael Ispass, Nicolas Heliotis, John Joy and Gail Hyman.