Curing Ambiguities and Defects Without Noteholder Vote: Not So Fast
Funds Talk: October 2016
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Litigation partner and co-chair of the white collar practice Barry H. Berke was named to Law360's 2011 MVP list, one of only four named in the area of White Collar. Law360 reviewed hundreds of nominations and chose attorneys who stood out for their legal achievements over the last year. In a profile piece on Mr. Berke, Law360 cited his successful defense of Craig Brubaker as the "crowning achievement" in a busy year, earning him a spot on the white collar MVP list.
In May 2011, Mr. Berke and Litigation partner Paul S. Schoeman successfully convinced a jury that Mr. Brubaker acted in good faith in connection with a charged tax shelter scheme that generated billions of dollars in tax losses. Mr. Brubaker, a former banker with Deutsche Bank, who was tried along with four other defendants, was accused of designing and marketing the tax shelters and of benefiting by way of big commissions. Mr. Brubaker was the only defendant acquitted of all the changes.
The article noted Mr. Berke's "red hanky" role-play with one of the prosecution's key witnesses, Erwin Mayer, a former tax partner at Jenkens & Gilchrist who was also Mr. Brubaker's contact on the tax strategies. Mr. Berke assumed the role of a prospective client to put Mayer's full sales pitch in front of the jury by having Mr. Mayer give the actual pitch he had given Mr. Brubaker about the fraudulent tax shelters in order to show that show that Mr. Brubaker was a victim of the scheme. As the article reported: “When he had the red handkerchief in his suit pocket, he was a wealthy businessman from Florida looking for a way to reduce his tax burden. When the handkerchief came out, he was Barry Berke, the defense attorney meticulously poking holes in the government's case over the course of a four-day cross-examination.” Mr. Berke said "We needed to show the jury the Erwin Mayer that Craig Brubaker saw and believed, not the Erwin Mayer that was testifying for the government."
On his litigation career, which the article also noted includes representations of JPMorgan Chase & Co. in legacy Bear Stearns litigation, and the owners of ten 1933 Double Eagle gold coins against government claims that they were stolen, Mr. Berke said "I enjoy it all. I love trying cases, counseling clients, working through issues. The common thread is trying to be a problem-solver."