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The Legal Odds Are Shifting in the A.I.G. Case

By AARON M. KESSLER
APRIL 21, 2015
WASHINGTON — When David Boies delivers his closing arguments on Wednesday in a case that pits Maurice Greenberg against the federal government over the 2008 bailout of American International Group, he will have already achieved something that few had thought possible: a chance to win.

In 2011, when Mr. Greenberg filed his lawsuit, arguing that the government lifeline, which ultimately totaled $182 billion, had shortchanged A.I.G. shareholders, the case seemed unpromising at best. “Chutzpah,” several lawmakers had called it. Government lawyers described Mr. Greenberg as an “ingrate.”

Carl Tobias, a law professor and litigation expert at the University of Richmond, said the A.I.G. case had been widely seen as one that “really bordered on frivolous.” Referring to Mr. Boies, he said, “People couldn’t imagine how he could put together a legal theory that would really work.”

But as the trial unfolded in the fall in the United States Court of Federal Claims, Mr. Tobias said, the consensus among legal experts began to shift.


Document | Documents on A.I.G. Maurice R. Greenberg sued the United States Treasury and the Federal Reserve Bank of New York in 2011, contending that their takeover of A.I.G. in 2008 was improper.
Using his conversational style of cross-examination, Mr. Boies managed to disarm, and at times dismay, a procession of government witnesses. One minute they would be chuckling at a joke, and the next nervously gulping down a glass of water as Mr. Boies burrowed in.


He confronted the architects of the bailout, including Timothy F. Geithner, Ben S. Bernanke and the Federal Reserve’s and Treasury Department’s lawyers, with their own emails, statements and handwritten notes, many unearthed publicly for the first time. The documents revealed that more internal doubt existed than was previously known about whether the Fed was crossing legal lines during its bailout of A.I.G.

The picture the government tried to paint in court of a clear need to act as the financial system teetered on collapse — extraordinary times calling for extraordinary measures — became more muddled as the trial continued.

“Now the court is thinking seriously about something that at the start looked like it wasn’t that strong a case,” Mr. Tobias said.

The decision will be up to Judge Thomas Wheeler, who is expected to issue his ruling this summer. Still, even if Mr. Greenberg’s claims for $40 billion are rejected, Mr. Boies will receive credit for turning around a case that had seemed a long shot into one that may be too close call.

“I thought from day one, he had virtually no chance. None,” said Kenneth R. Feinberg, the lawyer and victim compensation expert who has known Mr. Boies for nearly 40 years since they worked together for the Senate Judiciary Committee. “No matter what happens,” Mr. Feinberg said, “he has proven that it was a case worth bringing.”

The government, however, contends that Mr. Boies never found the smoking gun he was seeking, and that while there was certainly debate among Fed and Treasury advisers about aspects of the A.I.G. bailout, the reams of internal documents still support the government’s contention that officials acted lawfully and in good faith.

According to a person with knowledge of the government’s preparations, the case could hinge largely on a single fact: that A.I.G. shareholders never lost anything. Indeed, the value of their shares increased after the bailout. To prove a Constitutional violation requires someone to be harmed — and therefore even if the judge proves sympathetic to some of Mr. Boies’s arguments, the government believes the lack of economic loss will carry the day in its favor.

Wednesday will be the end of Mr. Boies’s 85th trial and the 10th involving litigation over more than $1 billion. Yet at age 74, Mr. Boies, who charges clients $1,500 an hour for his services, shows no sign of slowing down. In recent days, while preparing his closing arguments, he was bouncing between coasts, tackling more fallout from Sony Pictures’ huge data breach, and lining up television appearances.

Born in Illinois, he overcame dyslexia to graduate from Northwestern University and earn a law degree from Yale, using his near-photographic memory to make up for being a slow reader. Mr. Boies rose to prominence working for the white-shoe law firm Cravath, Swaine & Moore. As a partner there, he was essentially set for life. But in 1997, after a dispute over Cravath’s attempt to drop the Yankees’ owner George Steinbrenner as a client, he abruptly left to form his own firm, shocking many legal observers at the time.

With Boies, Schiller & Flexner, Mr. Boies focuses on what he likes best: taking cases to trial.

“This is what he lives for. For him the courtroom is the crucible, and it’s what he loves,” said Joel Klein, who as United States Assistant Attorney General in the late 1990s brought Mr. Boies in to litigate the Microsoft antitrust case.

It was the Microsoft trial — and his devastating cross-examination of the company’s chief executive, Bill Gates — that helped cement Mr. Boies’s reputation, and give a lift to his new firm. Now, Mr. Boies finds himself on the other side, battling against the federal government, in service of his longtime friend Mr. Greenberg.


Of course, he does not go to trial alone. In the case of A.I.G., a small army of associates accompanied him to Washington when the action began in October, taking over an entire floor of the downtown Willard Hotel. The team also set up a “war room” at nearby Skadden Arps, where each day and late into the night, dozens of young lawyers crowded around a large table, churning away on computers and picking through boxes of documents on coming witnesses.

After a day in court, Mr. Boies would hunker down in an office adjacent to the war room, going over briefing books for the next day’s witnesses. He uses a color-coded system for his trial binders — organizing information by how directly it applies to the witness, so he can quickly find the pages he wants.

All big-time lawyers work tirelessly in preparing for court testimony. What makes Mr. Boies unusual among his peers is how effortlessly he seems to shift gears.

Once he feels ready, Mr. Boies is not shy about going out on the town with his wife, or watching a movie in his hotel room. (The night before Mr. Gates’s deposition in the Microsoft case, he watched “Tombstone.”)

To relax between cases, he hits the craps tables in Las Vegas, which he likens to meditation — easing his mind without requiring much strategy, or unplugs on a boat in the Caribbean.

In the courtroom, he brings an understated manner that will frequently catch witnesses off-guard.

“He’s not belligerent. He’s not a shouter. He’s not a bomb thrower,” Mr. Feinberg said. “He is very calm, and uses this friendly tone.”

Mr. Boies is certainly far from invincible, with his most prominent defeat coming at the hands of Ted Olson, in Bush v. Gore.

Mr. Olson, a prominent Republican, kept in touch with Mr. Boies, a Democrat, and they eventually became friends. The two men subsequently joined together in a bipartisan battle for same-sex marriage, challenging Proposition 8, California’s ban on the practice.

“He leads them into places where they don’t have a way out,” Mr. Olson said of Mr. Boies’s way of slowly drawing in witnesses until their own words trap them.

In a series of interviews since the fall, Mr. Boies explained why he was drawn to trials.

“A trial is a powerful vehicle to explain things,” Mr. Boies said. “It is the most time that anybody spends really thinking about one thing. Unless you are the analyst on the National Security staff that’s assigned to monitor Putin, and that’s all you do, day in and day out, very few people ever spend the time on a single subject that is spent during trial.”

He likened his approach to cases to an artistic endeavor.

“You’re kind of like a sculptor,” he said. “You start out with this big block of marble. Then during discovery, you begin to chip away and give some form to it. Then the trial is where you really structure things and now you’ve got it, you really know what you’ve done.”

As the A.I.G. trial ends, Mr. Boies acknowledged that credit for changing perceptions alone only went so far.

“I don’t really believe in moral victories,” he said. “You can have them when you’re dealing with public opinion, but in litigation you want to win the case. I want to win.”


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