Bluebird Partners, L.P. v Bank of N.Y.

[*1] Bluebird Partners, L.P. v Bank of N.Y. 2008 NY Slip Op 52434(U) [21 Misc 3d 1140(A)] Decided on November 6, 2008 Supreme Court, New York County Eileen Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 6, 2008
Supreme Court, New York County

Bluebird Partners, L.P., Plaintiff,

against

The Bank of New York; FIRST FIDELITY BANK, N.A., NEW JERSEY; MIDATLANTIC NATIONAL BANK; UNITED JERSEY BANK; NATIONSBANK OF TENNESSEE, N.A.; CONSTELLATION BANK; CORESTATES NEW JERSEY NATIONAL BANK; RIKER DANZIG SCHERER HYLAND & PERRETTI; VECCHIONE, P.C.; WOLF & SAMSON, P.A.; KELLEY DRYE & WARREN; and WILENTZ, GOLDMAN & SPITZER, P.C., Defendants.



601016/96



The attorneys on the matter were Thomas J. Kavaler, Esq., of Cahill, Gordon, & Reindel LLP (for the defendant/movant) and Howard W. Schub, Esq., of Kasowitz, Benson, Torres & Friedman LLP (for the plaintiff).

Bransten, J.

Defendant Bank of New York ("BNY") moves to disqualify Kasowitz, Benson, Torres & Friedman LLP ("KBTF") from representing plaintiff Bluebird Partners, L.P. ("Bluebird") on the ground that KBTF is simultaneously representing the movant, BNY, in other litigation.

BACKGROUND



Bluebird Representation

In March 1987, Continental Airlines, Inc. ("Continental"), issued $350 million in bonds (the "Bonds"), which were secured by over $400 million in aircraft and airplane parts (the "Collateral") (Schub [FN1] Aff ¶ 3). Former defendant First Fidelity Bank ("FFB") was the Collateral Trustee under a Secured Equipment Indenture and Lease Agreement (the "Indenture") with a primary obligation [*2]to protect the bondholders' interest in the Collateral (id.). Former defendant NationsBank was the successor Collateral Trustee to FFB under the Indenture (id.).

In December 1990, Continental filed a bankruptcy petition in the Bankruptcy Court for the District of Delaware and ceased making payments on the Bonds (Schub Aff ¶ 4). At that time, approximately $180 million (face amount) of the Bonds remained outstanding, secured by Collateral worth approximately $175 million (id.). During the course of the bankruptcy proceeding, the Collateral declined in value by over $100 million (id.).

In February 1994, Bluebird, represented by KBTF, commenced an action on the Bonds in the United States District Court for the Southern District of New York (Schub Aff ¶ 5). Bluebird sued, among others, a number of indenture trustees for various forms of breach, based on the Indenture Trustees' failure to protect the bondholders' interest in the Collateral during Continental's bankruptcy (id.).[FN2]

In December 1995, BNY replaced NationsBank and assumed the role of Collateral Trustee (Schub Aff ¶ 6). At that time, the Trust, which held payments to the Collateral Trustee and cash generated from liquidating the Collateral, included approximately $26 million in cash and another $14 million in assets (id.; Ex 1, ¶ 40). BNY refused to distribute any funds from the Trust, purportedly on the grounds that the Indenture Trustees in the Bluebird action had claims against the Trust for their defense costs (id.). Bluebird commenced this action in February 1996, asserting claims related to BNY's refusal to distribute Trust funds in connection with the Indenture (id.).

The Enron Action

In December 2001, Enron Corp., and other affiliates, commenced chapter 11 cases (the "Chapter 11 Cases") in the United States Bankruptcy Court for the Southern District of New York (Casher [FN3] Aff ¶ 2). In its capacity as indenture trustee and/or collateral agent, BNY was involved with Enron in various transactions, including certain structured finance transactions involving various Delaware special purpose trusts and one foreign limited liability company (collectively, the "Trusts") that issued to investors in the capital markets certain promissory notes (id.). BNY hired Seward & Kissell LLP ("S & K") to represent it in the Chapter 11 Cases (id.). A group of the investors (the "Directing Noteholders") holding a substantial position in the notes retained KBTF as counsel in connection with the Chapter 11 Cases (id. at ¶ 5).

In September 2003, Enron commenced an adversary proceeding (the "Enron Action") that named, among other entities, BNY as a defendant "solely in its capacity as Indenture Trustee and Collateral Agent for the [investors]" (id., citing Casher Aff, Ex 2, at ¶ 120). Based in part on KBTF's [*3]prior representation of the Directing Noteholders in the Chapter 11 Cases, the Directing Noteholders concluded that KBTF should represent BNY as Indenture Trustee and Collateral Agent in the Enron Action (id. at ¶ 5).

BNY received a letter agreement dated August 20, 2004 (the "Letter Agreement") from the Directing Noteholders directing it to retain KBTF as special counsel to represent BNY as Trustee and the Trusts in connection with litigation arising out of the Enron bankruptcy (Casher Aff ¶ 6; Lundberg [FN4] Aff ¶ 3).

BNY claims that in its role as counsel, KBTF had access to BNY's secret and confidential information. BNY alleges that it has met with attorneys from KBTF and other BNY personnel on more than one occasion since August 20, 2004 in the presence of either BNY's inside counsel or S & K, BNY's other outside counsel in related matters (Lundberg Aff ¶ 5). During those meetings, BNY personnel allegedly discussed with KBTF how BNY conducts business and how BNY fulfills its duties as a trustee (id.). BNY contends that it would not have shared such information with KBTF absent the attorney-client privilege (id.). BNY also contends that had it known that KBTF was proposing to actively represent interests adverse to BNY, it would never have shared those confidential secrets and facts with KBTF (id.).

On October 21, 2004, BNY was contacted by KBTF (Bailey [FN5] Aff ¶ 3). BNY alleges that KBTF called to ask for a waiver of conflict of interest (id.). BNY communicated to KBTF that it was not inclined to grant the requested waiver (id.).

Revival of Bluebird Action

Since March 1998, the Bluebird action had been dormant (Bailey Aff ¶ 5). By December 2002, Bluebird settled with most of the Indenture Trustee defendants and proceeded to trial against FFB (Schub Aff ¶ 9). Bluebird prevailed, a judgment was entered against FFB, FFB appealed, and, ultimately, the parties settled in February 2006 (Schub Aff ¶¶ 10-11). With nearly all the claims resolved in this action, Bluebird filed a Notice of Motion to Restore and Reassign and a Request for a Preliminary Conference so that the action could proceed solely against BNY in relation to allegations that BNY over-withheld reserves for litigation and improperly refused to distribute funds from the Trust (Bailey Aff ¶ 5; Schub Aff ¶ 11, Ex 6, ¶ 7).

Motion to Disqualify KBTF

At the requested conference on June 27, 2006, BNY, represented by new counsel Cahill, Gordon, & Reindel LLP raised an issue concerning a conflict of interest arising from KBTF's representation of Bluebird and expressed a desire to file a motion to disqualify KBTF (Schub Aff ¶ 12). Although prepared to move in 2006, BNY did not move for disqualification until January 2008.

ANALYSIS

I. Disqualification Under Code of Professional Responsibility DR 5-105 (22 NYCRR § 1200.24): Simultaneous Representation

Code of Professional Responsibility DR 5-105 (22 NYCRR § 1200.24) states:

(a) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under [DR 5-105 (b)].

(b) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the lawyer's representation of another client, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under [DR 5-105 (c)].

(c) In the situations covered by [DR 5-105 (a) and (b)], a lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.

While the Court of Appeals for the Second Circuit "established the rule that where an attorney represents a client, the attorney is per se disqualified from concurrently representing a party adverse to that client" (Clear Channel Spectacolor Media, LLC v Times Square JV, LLC, 16 Misc 3d 1141[A], 2007 NY Slip Op 51773[U] [Sup Ct, NY County 2007], citing Cinema 5 Ltd. v Cinerama, Inc., 528 F2d 1384, 1387 [2d Cir 1976]), New York courts require the movant to demonstrate "a prima facie showing of conflict" and there must be a "likelihood that counsel's exercise of independent professional judgment on behalf of [the client] would be adversely affected" or "that counsel would be involved in representing differing interests" (Develop Don't Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144, 152 [1st Dept 2006], lv denied 8 NY3d 802 [2007]; Cinema 5 Ltd., 528 F2d at 1387). Upon a prima facie showing of conflict, the burden shifts to counsel to demonstrate "that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation" (Develop Don't Destroy Brooklyn, 31 AD3d at 153, citing Cinema 5 Ltd., 528 F2d at 1387).

Under similar rules of disqualification, New York courts have eschewed a rigid application of a per se rule of disqualification (Kassis v Teacher's Ins. & Annuity Ass'n, 93 NY2d 611, 617 [1999] ["while the disciplinary rules governing lawyers prohibit attorneys who have represented the former client in a matter from switching sides and impute one attorney's personal conflicts of interest to his or her current firm, they do not establish a [*4]mandatory disqualification rule"]). As the New York Court of Appeals explained in Kassis, "because disqualification of a law firm during litigation may have significant adverse consequences to the client and others, it is particularly important that the Code of Professional Responsibility not be mechanically applied when disqualification is raised in litigation'" (Kassis, 93 NY2d at 617, quoting S & S Hotel Ventures v 777 S. H. Corp., 69 NY2d 437, 444 [1987]).

In any assessment of disqualification, a number of important considerations must follow. "Balanced against the vital interest in avoiding even the appearance of impropriety is concern for a party's right to representation by counsel of choice and danger that such motions can become tactical derailment' weapons for strategic advantage in litigation" (Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 638 [1998]). Here, BNY contends that disqualification is necessary for a number of reasons; namely, because of asserted issues concerning the relation of the present action and the Enron Action, the disclosure of BNY's confidences to KBTF, and the propriety of suing one's current client. Conversely, KBTF sharply disputes the issues raised by BNY and rejoins that disqualification is barred under the doctrine of laches.

A. Conflict of Loyalties

Instead of examination of substantial similarity of the actions, which is the standard when dealing with a conflict arising from a past representation, the duty of undivided loyalty is the focus when simultaneous representation is at issue (see Aerojet Properties, Inc. v State, 138 AD2d 39, 41 [3d Dept 1988]). Nonetheless, the similarity of the actions often undergirds determination of whether a conflict in loyalties or diminution in the vigor of representation exists (see e.g. Develop Don't Destroy Brooklyn, 31 AD3d at 152; Asset Alliance Corp. v Ervine, 279 AD2d 365, 365 [1st Dept 2001] [reasoning that the "two matters are entirely distinct and involve wholly unrelated issues . . . . Under such circumstances, dual representation and the concomitant potential for conflict do not exist."]; Aerojet, 138 AD2d at 41 ["Although not determinative, it is significant that there is absolutely no substantive nexus between the two lawsuits"]; Gandhi v Filler, 15 Misc 3d 1124[A], 2007 NY Slip Op 50824[U], *4 [Sup Ct, Nassau County 2007] ["There is absolutely no nexus' between the matters"]).

Here, BNY asserts that KBTF's representation of Bluebird in the present action and of BNY in the Enron Action demonstrates a prima facie showing of a conflict. BNY claims that both actions involve the representation of BNY's Corporate Trust Division and the issue of how an indenture trustee conducts itself in relation to its obligations to bondholders under a trust indenture agreement. While BNY vaguely refers to more than one occasion on which KBTF met with BNY and either BNY inside counsel or S & K (Lundberg Aff ¶ 5), BNY provides details of only one meeting in which BNY "discussed the issue of how BNY, as an indenture trustee, discharges its obligations to bondholders under a trust indenture agreement" (Lundberg Reply Aff ¶¶ 7-8). Significantly, however, BNY acknowledges that [*5]the Enron Action constitutes "unrelated civil litigation" (Notice of Motion [emphasis added]).

KBTF, in opposition to disqualification, asserts that the two actions are completely unrelated. It alleges that the Enron Action "concerns Enron's attempt to seek redress from various financial institutions for their alleged role in Enron's financial collapse, resulting in the commencement of the Chapter 11 Cases in December 2001" (Casher Aff ¶ 16). KBTF adds that "[t]he heart of the [Enron Action] concerns whether alleged wrongful and fraudulent conduct of Citigroup, Citibank, N.A. and certain of their subsidiaries and/or affiliates can taint certain claims against Enron entities transferred to the [Trusts] by Citibank, N.A. and cause such claims to be equitably subordinated or disallowed" (id.). "In contrast, the [Bluebird Action], concerns whether . . . it was reasonable for BNY to set aside and hold $40 million of proceeds that it received from the liquidation of Collateral that secured the Bonds as a reserve for potential claims against that fund . . ." (id.).

B. Disclosure of Client Confidences

As another basis for finding conflict and disqualifying KBTF, BNY argues that it disclosed secret and confidential information to the firm. Specifically, BNY alleges that it "discussed the issue of how BNY, as an indenture trustee, discharges its obligations to bondholders under a trust indenture agreement" (Lundberg Reply Aff ¶¶ 7-8) and that it "shared confidential secret information on [how BNY conducts business and how BNY fuflfills its duties as a trustee] with [KBTF] within the confines of the attorney-client relationship which exists between BNY and [KBTF] and would not have shared this information, and certainly not in this level of detail, with [KBTF] if it were not acting as BNY's counsel and acting within the scope of the attorney-client privilege" (Lundberg Aff ¶ 4). BNY further alleges that "had BNY known that [KBTF] was or was proposing actively to represent interests adverse to BNY, and particularly entities interested in challengng the practices of the Corporate Trust Division . . . , BNY would never under any circumstances have shared these confidential secrets and facts with [KBTF]" (id. at ¶ 5). Furthermore, BNY alleges that KBTF made an appearance on behalf of BNY at a deposition in connection with the Enron action (id.). Meanwhile, KBTF disputes that any confidences were disclosed (see Schub Aff ¶¶ 18-21; Harwood [FN6] Aff ¶¶ 6-10; Casher Aff ¶ 17; Zinman [FN7] Aff ¶¶ 2-3).

A party seeking disqualification based on disclosure of confidential information "has the burden of identifying the specific confidential information imparted to the attorney" (Muriel Siebert & Co. v Intwit Inc., 32 AD3d 284, 286 [1st Dept 2006]). The court in Aerojet Properties, Inc. v State held that because there was no "real potential for the [*6]disclosure of confidential information despite counsel's representation in each action," counsel "met its heavy burden of demonstrating the absence of any conflict in loyalties or impediments to a vigorous representation of each client" and affirmed the trial court's decision to deny disqualification (138 AD2d at 41-42).

Here, the record does not support BNY's claim that KBTF, as special counsel, acquired material confidences from BNY (see Jamaica Pub. Serv., 92 NY2d at 638 ["Allowing a party seeking disqualification to meet its burden by generalized assertions of access to confidences and secrets' would both make it difficult, if not impossible, to test those assertions and encourage the strategic use of such motions"]). BNY does not allege that KBTF played an appreciable role as its counsel in the Enron Action; that KBTF was steeped in BNY files to conduct depositions; that KBTF appeared as sole counsel for BNY; or that KBTF regularly communicated directly with BNY (see Kassis, 93 NY2d at 618-19). BNY offers little in the way of substance to support disqualification. Instead, it proffers conclusory allegations, court documents listing KBTF as one of the attorneys for BNY and a deposition caption listing KBTF as attorneys for BNY. From this limited offer of proof, disclosure of material confidences cannot be inferred.

C. "A Firm May Not Sue a Current Client"

In further support of disqualification, BNY asserts that KBTF should be disqualified because "a law firm cannot sue, or threaten to sue, a current client" (Mem in Support at 6-7, citing Credit Index, L.L.C. v Riskwise Int'l L.L.C., 192 Misc 2d 755, 764 [Sup Ct, NY County 2002]).

KBTF responds that it did not represent BNY in its individual capacity (S & K did), but rather in its capacity as Indenture Trustee and Collateral Agent. To that end, KBTF seems to argue that its limited representation of BNY in the Enron litigation does not implicate the simultaneous-representation conflict rule in Cinema 5 Ltd., which "is properly imposed when a lawyer undertakes to represent two adverse parties, both of which are his clients in the traditional sense" (see AMBAC Indem. Corp. v Bankers Trust Co., 145 Misc 2d 52, 60 [Sup Ct, NY County 1989] [emphasis added]). The Letter Agreement acknowledged that BNY "retained Seward & Kissell LLP as counsel" (Zinman Aff, Ex 5, at 4) and directed BNY to "retain, solely at the expense of the Holders [Directing Noteholders] . . . [KBTF] as special counsel to the Trustee and the Trusts to (i) investigate, evaluate, analyze and advise the Trustee and Trusts (in addition to the Holders) concerning the Claims on behalf of the Trustee and Trusts and for the benefit of the [investors] . . ." (id. at 5). Indeed, in filed court documents, KBTF has expressly qualified its representation "solely in its capacity as Indenture Trustee and Collateral Agent for the [Trusts]" (Lundberg Aff, Ex 2 at 4, Ex 3 at 2, Ex 4 at 2).

Even if BNY demonstrated a prima facie showing of a conflict based on the similarity of the actions or disclosure of confidences, and, it has not, KBTF is entitled to demonstrate "at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of [] representation" (Develop Don't Destroy Brooklyn, 31 AD3d at 153, quoting [*7]Cinema 5 Ltd., 528 F2d at 1387). Indeed, BNY has not even argued that there have been any issues with respect to KBTF's representation of it in its capacity as Indenture Trustee and Collateral Agent in the Enron Action.

It is interesting, moreover, that in the cases cited by BNY, counsel was disqualified from continuing a new engagement adverse to its current client and was not forced to relinquish representation of an earlier-retained client (see e.g. Credit Index, 192 Misc 2d at 764 [after concluding that counsel had a current attorney-client relationship with plaintiff when engaged to represent defendants, counsel was disqualified from representing defendants]; Abbondanza v Siegel, 209 AD2d 1023, 1024 [4th Dept 1994] [finding that counsel currently represented defendant and, therefore, was disqualified from representing plaintiffs]; Dolgoff v Projectavision, Inc., 235 AD2d 311, 312 [1st Dept 1997] [affirming trial court's disqualification of defense counsel where the record demonstrated that defense counsel both previously and successively represented plaintiffs in other matters]; see cf. In re Hof, 102 AD2d 591 [2d Dept 1984] [affirming disqualification based on former representation where counsel formerly represented both administratrix and coadministrator, and now represented coadministrator in an adversarial proceeding against administratrix]).

II. Laches as a Defense to Disqualification

Laches is a final consideration that weighs against granting disqualification, and obviates the need for further analysis of conflict in loyalties (see St. Barnabas Hosp. v NY City Health & Hosps. Corp., 7 AD3d 83, 90 [1st Dept 2004]).

KBTF argues that BNY was aware of its representation of Bluebird in 2004, but never raised the issue of conflict until 2006. Therefore, KBTF argues, the motion at this late stage prejudices the plaintiff, particularly in light of the time and money already expended and the prospect of having to engage new counsel.

BNY counters that until June 2006, when Bluebird moved to restore and requested a preliminary conference, it had no reason to seek disqualification of KBTF in this action because this case was dormant between March 1998 and June 2006 (Reply at 18-19). However, the fact that an action is "dormant, does not mitigate the conflict aspects of their attorney-client relationship" (cf. Application of Brown & Williamson, Tobacco Corp. v Chesley, 2002 NY Slip Op 50506[U],*8 [Sup Ct, NY County 2002]).

In St. Barnabas, the trial court granted the plaintiff's motion to disqualify defense counsel (St. Barnabas, 7 AD3d at 84). The Appellate Division reversed, reasoning, among other things, that the plaintiff was aware of all the facts on which it subsequently relied, a year later, in moving to disqualify counsel (id. at 95). The court explained that in "deprecating the significance of this delay, [the plaintiff] notes that the action was essentially dormant' while the parties engaged in settlement discussions from October 2001 until April 2002" and rejected the plaintiff's dormancy argument, finding that the plaintiff's willingness to permit counsel to represent the defendant during settlement negotiations contradicted a subsequent claim of prejudice (id. at 95). The court further determined that the plaintiff's [*8]acquiescence in counsel's representation of the defendant during the first year of the pending action further established consent to such representation (id.).[FN8]

When BNY retained KBTF to represent it as Indenture Trustee and Collateral Agent, it presumably knew that KBTF represented Bluebird in this action adverse to BNY for the previous eight years. BNY is a sophisticated entity with its own in-house counsel and it engages outside counsel (see Develop Don't Destroy Brooklyn, 31 AD3d at 153 [noting that sophisticated entities should be deemed to be fully aware of counsel's adverse representation of another party at the time the entity retained counsel]; St. Barnabas, 7 AD3d at 93). Nonetheless, it unjustifiably takes the position that it was "reasonable [] to wait until January 4, 2008 to file the motion [to disqualify] because this action had been dormant since March 1998 and June 1, 2006" (Reply at 18). BNY, moreover, permitted KBTF to attempt to settle claims on Bluebird's behalf, and only raised the issue of conflict once litigation resumed (see Bailey Aff ¶ 15 ["I reasonably believed that the case was dormant for the time being and that the possibility existed that Bluebird, L.P. would settle with all the other parties involved and thus bring this action to an end."]; Fleischmann [FN9] Aff ¶ 9). Indeed, at the June 27, 2006 conference, BNY raised its concern about the potential for conflict, assented to KBTF's representation of Bluebird in procuring settlements with other defendants for nearly a year and a half, and did not move for disqualification until January 2008.

BNY was obligated to move for disqualification before the wait became an "inordinate and inadequately explained delay" (Barr v Raffe, 111 AD2d 31, 32 [1st Dept 1985]). It allowed KBTF to represent Bluebird in settlement negotiations with other defendants, waited approximately two years before suggesting disqualification might be appropriate, and then waited another year and a half until this litigation became active before finally making its motion (see Aerojet, 138 AD2d at 42 ["to disqualify [counsel] after extensive involvement in this lawsuit for more than four years would prove patently unfair to both the law firm and its client"]; Talvy v American Red Cross, 205 AD2d 143, 152-54 [1st Dept 1994] [a party's inexcusable delay of over three years in moving for disqualification, based upon facts known to that party since the first appearance of counsel, constitutes laches]). BNY's inexcusable delay in seeking relief and its retention of KBTF long after its representation of Bluebird in this matter suggests an improper effort to obtain a tactical advantage (see St. Barnabas Hosp., 7 AD3d at 95 ["Plainly, inordinate delay in [*9]moving for such relief is an indication that the motion has been made to gain a tactical advantage in the litigation, or for purposes of delay"]). In the end, BNY has not established a conflict that warrants disqualification or that under the circumstances its delay in seeking relief should be excused.

Accordingly, it is hereby

ORDERED that Defendant's motion seeking to disqualify Kasowitz, Benson, Torres & Friedman LLP from representing plaintiff is DENIED.

This constitutes the Decision and Order of the Court.

Dated: New York, New York

November 6, 2008

E N T E R

Hon. Eileen Bransten Footnotes

Footnote 1: Howard W. Schub is a member of the firm Kasowitz, Benson, Torres & Friedman LLP.

Footnote 2: The federal action was dismissed in 1995 for lack of standing and the Federal District Court declined to retain jurisdiction over the pendent state-law claims (Schub Aff ¶ 5; Bluebird Partners, L.P. v First Fid. Bank, 896 F Supp 152, 157 [SD NY 1995]). Bluebird later commenced an action on the pendent state law claims in the New York State Supreme Court ("Bluebird III") (id.). Bluebird III was dismissed and then reinstated on appeal (id.). After dismissal, but before reinstatement, the claims were re-pleaded in a separate action ("Bluebird V") (id.). After reinstatement, the parties agreed to discontinue Bluebird III and litigate Bluebird V (id.).

Footnote 3: Richard F. Casher is a member of the firm Kasowitz, Benson, Torres & Friedman LLP.

Footnote 4: Loretta A. Lundberg is a Managing Director at the Bank of New York.

Footnote 5: Robert E. Bailey is a Managing Counsel to The Bank of New York.

Footnote 6:Michael C. Harwood is a member of the firm Kasowitz, Benson, Torres & Friedman LLP.

Footnote 7:Daniel Zinman is an associate at the firm Kasowitz, Benson, Torres & Friedman LLP.

Footnote 8:In St. Barnabas, the plaintiffs also expressly granted a waiver (7 AD3d at 90). However, the court set forth that laches would have equally provided grounds for waiver (id. ["This waiver has been accomplished both by St. Barnabas's express written consent to such representation in the March 1998 retention letter, and by St. Barnabas's delay of one year, from the time the Rosenman firm first appeared in this action, in seeking the firm's disqualification"] [emphasis added]).

Footnote 9: Dennis C. Fleischmann is a partner in the law firm Bryan Cave LLP, counsel to The Bank of New York.