Michael P. De Simone
Counsel
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Michael's practice is in complex commercial litigation, with an emphasis on the financial services industry. He represents financial institutions in complex disputes involving structured finance, real estate finance and distressed assets, and also handles complex commercial litigation, accountant liability and counseling regarding internal investigations. Prior to joining Alston & Bird, Michael was an assistant general counsel at one of the Big Four accounting firms, where he litigated primarily auditor liability cases.
- Litigation counsel to a senior CMBS lender in connection with a $170 million loan to a multistate hotel chain secured by mortgages on individual hotel properties. Advising client regarding disputes with and between mezzanine lenders, bankruptcy of the mezzanine borrower and resolution of the loan via a federal receivership over the hotel collateral.
- Representing an alternative investment fund and other mezzanine lenders in Article 9 foreclosures of equity interests in mezzanine borrowers pledged as collateral.
- Foreclosure counsel for the northeast region in commercial foreclosures for one of the largest mortgage lenders in the United States.
- Advising on complex real estate workouts, including deed-in-lieu transactions.
- Advising on complex title insurance issues.
- Representing one of the largest online travel agents in a dispute with a provider of website content.
- Representing an importer in a dispute with a freight forwarder in connection with the misclassification of goods.
- Representing a client in the business of acquiring subprime mortgage assets in the pursuit of claims against its former CEO and numerous other individual and corporate defendants. The claims, which derive from a complex financial fraud, seek the return of millions of dollars of assets. Obtained on behalf of his client: an order for the escrow of disputed mortgage assets, successfully defending this order on appeal; a $13.5 million summary judgment order on conversion claims; and multiple contempt orders and a Special Referee recommendation of contempt following extensive factual hearing.
- Representing four European banks as the plaintiffs in a bank fraud and conversion case in the Southern District of New York related to oil trade finance that resulted in recoveries exceeding $70 million.
- Successful defense of an accounting firm in the arbitration of claims by a former public client in the software industry. The former client sought damages of $100 million alleging negligent audit procedures due to the restatement of the revenue recognition treatment accorded the majority of its software sales. The panel awarded the former client nominal damages.
- Successful defense of an accounting firm in the arbitration of claims by a former public client in the trucking industry. The former client sought damages of $30 million arising from the firm’s withdrawal of its audit opinions and alleged negligent audit procedures. The arbitration panel denied all the claims of the former client.
- Successful defense of an accounting firm at a trial in Florida state court regarding claims by former shareholders of a closely held client in the homebuilding industry. The plaintiffs sought damages of $25 million arising from the revelation, in a purchase price adjustment dispute, that asset balances in prior financial statements had been materially overstated. The plaintiffs asserted claims of fraud, negligent audit procedures and breach of the duties of loyalty and confidentiality. The jury awarded the plaintiffs $200,000, and the trial judge granted the firm JNOV due to the plaintiffs’ fraud upon the court. Successfully defended the grant of JNOV on appeal.
- Successful defense of an accounting firm in arbitration of claims by a former, privately held client in the manufacturing industry seeking damages of $15 million. The plaintiff sought damages arising from alleged negligent audit procedures based upon the material overstatement of accounts receivable balances. The arbitration panel denied all the claims of the former client.
- Successful defense of an accounting firm in the arbitration of claims by family members of a deceased former partner of the firm. The claimants sought extraordinary compensation of several million dollars allegedly due as a result of the sale of the firm’s consulting practice. The arbitration panel denied all claims.
- Successful defense of an accounting firm at a trial in New Jersey state court regarding a breach of contract action filed by a state agency for $2 million in damages. Following an adverse summary judgment decision on liability, the trial judge found no damages due to the state agency’s unreasonable failure to mitigate its alleged damages. Successfully defended this judgment on appeal.
- Obtained summary judgment for an accounting firm dismissing the 10b-5 and state law misrepresentation claims of the shareholders of a former client based upon the failure to adduce proof of loss causation. Successfully defended this judgment on appeal to the Third Circuit Court of Appeals.
- Achieved favorable resolutions of numerous claims prior to trial.
- Represented an accounting firm, partners and employees of the firm in numerous SEC investigations.
- Coordinated the responses of an accounting firm to client internal investigations and assessed the adequacy thereof.