German businessman Leo Kirch hired trial lawyer David Boies to appeal the dismissal of a conspiracy and defamation suit against Liberty Media Corp. and its chairman, John Malone, and Deutsche Bank AG (DBK) and its former chairman, Rolf Breuer.
Boies, who represented Democratic presidential candidate Al Gore during the 2000 election recount and led the Department of Justice's antitrust suit against Microsoft Corp., will challenge the September ruling, Kirch said in PRNewswire statement. The suit was previously handled by the firm of Lowenstein Sandler PC, based in Roseland, New Jersey.
``The decision below focused primarily on defamation law, and David Boies is pre-eminent in that field,'' said Lawrence Rolnick, a partner at Lowenstein Sandler, in an interview.
Boies represented CBS News in its defense of a libel suit filed by former Gen. William Westmoreland, who complained of errors in a documentary about his role in the Vietnam War. He later dropped the suit. Boies's law firm is Armonk, New York- based Boies Schiller & Flexner LLP.
``They feel the judge clearly misunderstood and misapplied 2d Circuit defamation law,'' said Rolnick of the appeals court whose rulings are binding on federal judges in New York, including the one who dismissed the suit. ``They wanted to go to someone with vaunted expertise in that area.''
The suit is one of at least four legal disputes between Deutsche Bank and Kirch, whose businesses sought protection from creditors in 2002 after a four-decade expansion culminated in $5.7 billion of debt and mounting losses. Kirch claims comments made by Breuer in a February 2002 Bloomberg television interview dissuaded other lenders from extending credit to KirchMedia.
No Legal Case
In the September ruling, a judge rejected Kirch's claim, saying that it had failed to state a valid legal argument.
``It is plain from the complaint that the allegedly defamatory aspects of the Breuer interview constituted opinion, which is not actionable under New York defamation law,'' Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York said in granting a request to dismiss the suit. ``Even if Breuer's statements were factual, the complaint does not adequately plead that the statements were false.''
Kirch alleges a conspiracy among the four defendants that aimed at breaking up his media group and undermining a deal to bring Kirch's privately owned media company public by 2004. The forced breakup would have helped Liberty Media to gain control over Germany's cable TV market while generating more than $1 billion in investment banking fees and other revenue for Deutsche Bank, Lowenstein Sandler argued in January in court papers when the lawsuit was filed.
Liberty Media's Role
Liberty Media in 2001 agreed to buy German cable-television systems from Deutsche Telekom AG for 5.5 billion euros ($6.8 billion). The deal was later blocked by Germany's antitrust regulator on competition concerns.
Deutsche Bank had loans outstanding to Kirch of about 600 million euros, when Breuer said in the interview during the World Economic Forum in New York, ``everything that you can read and hear about (Kirch) is that the financial sector isn't prepared to provide further'' loans or equity. Kirch said the statement was untrue.
Alan Vickery, the Boies Schiller partner who will oversee the case, said it goes beyond questions of law.
``The plaintiff should have an opportunity to get discovery and present the evidence to a jury for them to decide,'' he said. Discovery is the pretrial evidence-gathering process.
Deutsche Bank spokesman Jezz Farr declined to comment. Liberty spokeswoman Julie Ballantine did not immediately return a call for comment.
The New York case is titled Kirch, et al. v. Liberty Media Corp. et al., U.S. District Court Southern District of New York, No. 04-CIV-667 (NRB).
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