Clients call upon Ben Nagin for their most complex and hard-fought disputes. His engagements span numerous industries and legal claims, including the defense of antitrust, consumer finance, structured products, contractual, bankruptcy code and tort-based disputes. Ben also has represented financial institutions as plaintiffs in the enforcement of significant contractual rights. Ben serves as the co-chair of the Hedge Fund and Capital Markets Litigation Committee of the New York State Bar Association.
Ben’s representative matters include:
-- a bank in breach of representation and warranty action brought by special servicer regarding commercial mortgage loan purchase agreement. Obtained pre-discovery dismissal of all claims. (Wells Fargo Bank, N.A., as Trustee for the registered holders of J.P. Morgan Chase Commercial Mortgage Corp, Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC4, acting by and through its Special Servicer, LNR Partners, LLC v. JPMorgan Chase Bank, N.A., 2014 WL 1259630 (S.D.N.Y. March 27, 2014)), affirmed, 2016 WL 1042020 (2nd Cir. March 16, 2016)
-- an ad hoc noteholder group and indenture trustee in preliminary injunction proceedings and expedited trial, respectively, regarding contested redemption of debt securities. Following trial, the district court commended the parties’ lawyers for their “all-around excellence” and described the lawyers’ advocacy as “simply superb.” After an adverse decision by the district court, the Second Circuit reversed and confirmed the indenture trustee’s interpretation of the redemption provisions. (Chesapeake Energy Corp. v. The Bank of New York Mellon Company, N.A.)
-- an investment management firm in fraudulent transfer action brought by Chapter 7 trustee regarding asset-based loan.a European bank in the enforcement of construction completion guaranty and related agreements arising out of a resort development in the U.S. Virgin Islands. Obtained US$38 million judgment for the client.
-- a title insurance company in loan and guaranty enforcement action. Prevailed on pre-discovery motion for summary judgment on all claims. (Stewart Information Services Corp. v. CorporatAir LLC et al., 951 N.Y.S.2d 83, 2012 WL 1649883 (N.Y. Supreme Court, Commercial Div. Apr. 16, 2012)
-- Obtained US$32 million judgment for lessors against airline for breach of aircraft lease agreements. (Wells Fargo Bank, N.A. v. TACA International Airlines, S.A., 315 F. Supp.2d 347 (S.D.N.Y. 2003))
-- a major payment card issuer in consolidated antitrust actions brought by putative class of all U.S. merchants, as well as significant opt-out actions by large merchant plaintiffs. (In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (E.D.N.Y.))
-- a major payment card issuer in putative class action brought by Chapter 7 debtor regarding credit reporting and statutory bankruptcy discharge injunction (S.D.N.Y.).
-- a major investment bank in consolidated antitrust action regarding CDS market. (In re Credit Default Swaps Antitrust Litigation (S.D.N.Y.))
-- an industrial bank in a putative class action of consumer borrowers alleging violations of state usury laws, NY Deceptive Practices Act and RICO (S.D.N.Y.).
-- a major investment bank in antitrust action regarding IPO pricing. (In re Issuer Plaintiff Initial Public Offering Antitrust Litigation (S.D.N.Y.))
-- a major media company in federal securities actions in MDL proceeding and in state actions across the country, including in Alaska and Ohio. (In re AOL Time Warner, Inc. Securities & ERISA Litigation (S.D.N.Y.))
Advisory and Regulatory Work
Ben’s advisory and regulatory matters include:
-- CFPB and DOJ investigations into consumer finance issues for financial institutions.
-- FTC and DOJ inquiries to investment advisory firms.
-- a major international airline regarding rights and strategic options in relation to multi-billion dollar commercial relationship.
-- numerous financial institution clients regarding litigation risks arising from commercial relationships and business lines, including cross-border agreements.
Ben has written on a range of issues arising in complex litigation, including the following articles:
-- “Competing New York and Foreign Actions: Anti-Suit Injunctions in Commercial Disputes,” NY Litigator Magazine (Spring 2017).
-- “Applying Non-U.S. Law in Commercial Disputes,” New York Commercial Litigation Insider (December 23, 2014).
-- “How New York’s Donnelly Act is Not Always a ‘Little Sherman Act’,” New York Commercial Litigation Insider (April 16, 2014).
-- “The Legal Landscape of Pre-Action Discovery in New York,” New York Commercial Litigation Insider (February 5, 2014).
-- “Expedited Summary Judgment in Complex Financial Transactions,” New York Commercial Litigation Insider (November 12, 2013).
-- “The Question of Privilege When Counsel is Not a Licensed Attorney,” New York Commercial Litigation Insider (August 8, 2013).
Commitment to Pro Bono
Ben also has handled numerous high-profile pro bono matters. In July 2010, Ben was lead counsel in a death penalty evidentiary hearing in Mobile, Alabama. On November 2, 2012, following extensive post-hearing briefing, the Circuit Court for Mobile County, Alabama, vacated the capital murder conviction and death sentence of William Ziegler and granted Mr. Ziegler a new trial, finding numerous constitutional violations in connection with the original capital murder trial. (State of Alabama v. Ziegler). In May 2014, the Alabama Criminal Court of Appeals unanimously affirmed the judgment granting Mr. Ziegler a new trial. This important case was reviewed in an article in the Mobile Press Register, “How the system failed William Ziegler: Perjured testimony, trashed evidence, lying jurors” (February 1, 2013). This case was also mentioned in an article in Law360, “Pro Bono Firm of 2014: Sidley Austin” (October 23, 2014).
-- Panelist, “Valuation from Delaware to Dubai and Beyond,” NERA’s 17th Securities & Finance Summer Seminar (July 2018).
-- Moderator, “Key Choice of Law Considerations: Do You Really Have a Choice?” International Aspects of Hedge Fund and Capital Markets Litigation, New York State Bar Association and Sidley Austin LLP (May 2016).
-- Moderator, “An Informal Conversation with the Honorable Bernard Fried (ret.),” NYBSA Committee on Hedge Fund and Capital Markets Litigation (March 2016).
-- Panelist, “Litigation and Enforcement,” Sidley Austin LLP Private Funds Conference: Developments & Opportunities (September 2015).
-- Moderator, “Complex Financial Transactions at Trial: Experiences and Observations from the Bench and the Bar,” Commercial and Federal Litigation Section Annual Meeting, New York State Bar Association (January 2015).
-- Moderator, “Financial Crisis Litigation In The