General Litigation - Litigation Boutique Award

Mary Welch, Daily Report

Listen to three of the top litigators at Bondurant, Mixson & Elmore and you might believe that their victories were won by a simple argument. You would be wrong—and right.

"It takes a genius to make an argument simple," says partner Frank M. Lowrey IV. "When someone hears our theory of the case, we don't want them to say, 'Hey, that's clever lawyering.' We want the reaction to be, 'Wow. That makes sense. That's the truth'."

Partner Steve Rosenwasser says a lawyer should be able to explain even the most complex cases in two minutes. Which, Lowrey chimes in, "is the extent of Mickey's attention span."

"I likely need three sentences to explain it; if I had more time, I can make it in one," H. Lamar "Mickey" Mixson shoots back.

Such quick wit and determination to reduce a case to its most essential, logical—and powerful— elements are the cornerstones of the 33-litigator firm, winner of the Daily Report's General Litigation (Litigation Boutique) Department of the Year award. The firm includes 17 partners, 15 associates and one of counsel.

The team doesn't have a formal strategy process, but Mixson says he "wants to know how to get where I want to be as quickly and efficiently as possible. I find a lot of lawyers agonize over the various steps between those places. I try to avoid those steps, much less agonize over them."

From the very beginning, the team takes a minimalistic approach. Typically they staff the case with no more than two or three lawyers. "We don't churn cases the way other law firms do because we're staffed too leanly," says Rosenwasser, whose days start at 4:30 a.m. "We read our documents and we actually know what's going on in our cases."

Such thorough knowledge of all documents has, in more than one case, put the witness on the ropes.

Mixson cites a case in which a witness for the opposing side claimed that a deal couldn't have been legitimate because the defendant was distracted in the meeting and didn't fully understand the deal. Mixson pointed out that witness was absent for three hours during that meeting, and was instead at a party. When the witness denied that, Rosenwasser passed to Mixson an email from the witness thanking the hostess for a wonderful party. The witness countered that he wasn't actually there, he was just sending a polite follow-up note. Mixson and Rosenwasser showed an email from the hostess thanking him for attending.

"I wasn't trying to make it look like he was lazy or that he was at the party," says Mixson. "It had nothing to do with the case, but whether or not he was a liar had everything to do with the case. Examples like that only come because we had a depth of knowledge about the case," he adds.

Those special courtroom moments are "great fun," says Lowrey, "but they are relatively few and far between. I love the intellectual challenge of a case. I take great pleasure in seeing my vision of the case ending up being adopted by the court, juries, witnesses and sometimes even by opposing counsel."

Lowrey defended the Hospital Authority of Albany-Dougherty County, in a Federal Trade Commission challenge to the authority's acquisition of a hospital in southwest Georgia. The Hospital Authority already owned Phoebe Putney Memorial Hospital, and the FTC alleged that it would violate antitrust law for the authority to acquire a second hospital in the area. The FTC filed suit in U.S. District Court for the Middle District of Georgia to enjoin that acquisition.

"We obtained the dismissal of that lawsuit based on an antitrust doctrine called 'state action,' under which the antitrust laws sometimes do not apply to actions of local government, such as a public authority," says Lowrey. "Stated most simply, our point was that the federal antitrust laws had never been applied to prevent a local government from buying a hospital or any other asset. We were pleased when a member of our Eleventh Circuit Court of Appeals panel turned our key point into a question, asking the other side during oral argument whether it could identify any case doing that. The answer was no."

The firm obtained dismissal of the lawsuit in the Eleventh Circuit. But the U.S. Supreme Court granted certiorari and reversed, announcing what "some regard as new and narrower standards for state action immunity," says Lowrey.

Although the firm was not involved in that Supreme Court appeal, the firm again is representing the Hospital Authority before the FTC for the administrative resolution of the FTC's challenge to the acquisition. The FTC now is considering whether to grant final approval of a proposed settlement of the case.

Rosenwasser exhibited the philosophy of logical simplicity in a recent class action suit he and the firm settled against Federal Express.

Rosenwasser, along with other members of the firm, served as plaintiffs' counsel in a class action breach of contract and Racketeer Influenced and Corrupt Organizations Act case. The plaintiffs alleged that the shipping company intentionally overcharged its customers by as much as $3 per package by imposing residential delivery charges for deliveries to nonresidential addresses.

While the case involved many complex questions regarding RICO enterprises, the validity of class action bans and whether you can provide that millions of addresses are nonresidential on a

classwide basis, Rosenwasser focused on simple, easy-to-understand concepts. For example, "to demonstrate that the alleged overcharges were to clearly nonresidential addresses, we didn't rely on words, but used pictures," he says. "Showing the court photographs of courthouses and banks, and then pointing out that residential delivery charges were allegedly imposed to those obviously nonresidential buildings, really drove the point home in a simple-to-understand manner."

Rosenwasser says he was born to be a litigator. "I love to argue," he says. "Ask my mother; ask my wife."

"Using visuals is a powerful tool in complicated cases," he says. "It allows you to explain detailed facts through simple illustrations, and to leave the court and jury with memorable pictures, which are far easier to recall than lengthy arguments where important facts can get lost."

In the FedEx case, Rosenwasser and the firm, along with cocounsel, obtained a $21.5 million settlement, including $16.5 million in cash and billing practice changes worth an estimated $5 million.

Earlier this year, Mixson, with cocounsel James Butler of Butler, Wooten & Fryhofer, settled a case against accounting titan KPMG and investors seeking almost $500 million caused by fraudulent tax shelters. The case settled a week before it was to be tried in Fulton County State Court.

The case was one of the last and largest stemming from KPMG's admission in 2005 that it had sold bad tax shelters. Bondurant already had obtained decisions in those cases for other victims of KPMG's faulty tax shelters.

In the previous cases, KPMG approached potential clients and offered to help them avoid paying taxes. KPMG assured them the shelters were legitimate.

This case, however, was different. Client Chris Cohan owned Sonic Cable TV and the Golden State Warriors basketball team. He went to KPMG, his auditors, and said he was thinking of selling his company and wanted to know if KPMG could structure a deal so he wouldn't owe a massive amount of taxes.

"KPMG said, 'Boy, do we have a deal for you,' and they ended up selling him a FLIP [foreign leveraged investment program] that was as big as all the other FLIP deals KPMG had been doing—$200 million worth of tax shelters, which was about the sale price of the company, " says Mixson.

Cohan needed that because he had an "unusual tax situation, a negative balance," Mixson says. Cohan was audited by the IRS and told he owed $350 million, which is "more than he got selling the company," Mixson says.

In the end, Cohan paid the IRS less than the $350 million, but still more than the sale price— about $281.8 million in taxes, penalties, fees and interests, according to the order. Cohan was $80 million in the hole and Bondurant, on his behalf, sued KPMG, presenting what Mixson says was a "relatively novel theory of damages."

Mixson's argument was that if KPMG had told Cohan the truth about the legitimacy of the tax shelters, he wouldn't have sold the company, which was generating about $20 million in cash a year. Expert testimony said the company was worth close to $500 million. "If you think about it, it was pretty easy to prove that he wouldn't have sold the company because only an idiot would sell a company that you would end up paying $80 million more in taxes," Mixson says. "And Chris Cohan is not an idiot."

Again, says Lowrey, the argument was "so simple. I promise you that no other lawyer would have looked at that case and come up with that model of damages. They would have gone with the models of damages used in the past."

"Mickey is a triple A-rated litigator with his wisdom, character and work ethic," says Cohan. "My case was complex and he quickly grasped all the issues. I came across the country to have him and his firm represent me and he did a fantastic job going up again some very, very large opposition."

Mixson's team, he says, wanted to show that the company was worth a bunch of money and he lost it. "And then someone said 'Isn't that the damages?' And that's what differentiates this case from all the others. There had been 40 or 50 cases against KPMG and none had those facts."

Cohan agrees that Mixson doesn't let anything sidetrack his laser focus. Opposing counsel requested mediation and Mixson walked in and apologized to the mediator, saying he was sorry, but this mediation was a waste of time.

"He just knows his stuff," Cohan says. "He told me the other side wasn't serious and that they were going to lowball me and try to make me uncomfortable. He said our case was fantastic and it was going to be a waste of time."

After a day of fruitless mediation, Mixson told the mediator, 'I told you it was going to be a waste of a day and your time and mine,' Cohan recalls.

In the end, Lowrey says, the firm strives to "take each case to its simplest issue, to find the theme within the law, the facts, the documents and testimony that makes it all make sense." 

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