Friday, November 30, 2012

The Payoff

Affaire du Sofitel : DSK prêt à verser 6 millions de dollars à Nafissatou Diallo
A New York, un accord financier devrait être signé le 7 décembre afin d'éteindre la procédure civile.


George Ross said...

Where does the pognon come from?

Sophie M said...

Here is what Le Monde reports on where the pognon will come from:

"A ses amis, il a aussi confié qu'il ne disposait pas personnellement de cette somme. Malgré les quelques conférences données dans des universités privées ou à l'invitation de grandes banques, malgré aussi son activité de conseil, notamment au Maroc, M. Strauss-Kahn, 63 ans, n'a en effet ni revenu ni fortune suffisante.

Il devrait donc, comme il l'a expliqué à ses proches, contracter un emprunt bancaire de 3 millions de dollars. Son épouse Anne Sinclair, dont il vit séparé depuis cet été, devrait par ailleurs lui prêter les 3 millions de dollars restant.

La journaliste, directrice du site Huffington Post, avait déjà assumé le paiement de la caution de 1 million de dollars et le dépôt en garantie de 5 millions de dollars, pour permettre à son mari de sortir de la prison de Rikers Island, le 19 mai 2011, après son arrestation au Sofitel le 14 mai. Elle avait également assumé la coûteuse location d'une maison - 50 000 dollars (38 660 euros) par mois -, dans le quartier de Tribeca à Manhattan, où DSK était placé en résidence surveillée, le temps que les juges statuent au pénal sur l'accusation de viol. Enfin, elle a payé en grande partie les frais d'avocat de l'ancien directeur du FMI."

Unknown said...

Hmmm. Against what collateral will a bank lend 3 million to DSK? The information in the possession of a former head of the IMF?

Cincinna said...

 The Bronx, no thonx! The absolute worst place in the US for a defendant in a  jury trial; the largest jury awards.
Only $6M to Diallo? She probably could gave gotten at least $20M from a jury in the Bronx.

I wonder who will be picking up DSK’s $6M settlement tab and multi-million dollar legal bills.

His wife, the French billionaire heiress, Anne Sinclair, dumped him after he no longer had a chance to be President of France.

I doubt he could qualify for a legitimate loan with no collateral. How would he ever pay it back? Perhaps his silence in other matters? I'm sure this is not the last we will hear of DSK.

Anonymous said...

Ah, yes. Cincinna foaming at the mouth about DSK. Just like the good old days. Go ahead, don't hold back, tell us about all the leverage has has over the PS.

Mitch Guthman said...

@ Cincinna,

Arguing with you about the DSK affair. It’s like old times! I’m reluctant to spend much energy on this affair but I cannot resist. Neither the newspaper report nor your analysis makes sense to me. The article does not suggest any reason for such a generous settlement and I simply can’t conceive of any reason why (questions of right or wrong and morality aside) DSK should pay Nafissatou Diallo one thin dime---unless, as would seem to be the case, his lawyers are complete idiots or somebody else besides DSK or Anne Sinclair put up the money.

I don’t know enough about the legal scene in NYC but if the Bronx really is the worst place in American for a defendant in a jury trial then the source of the money for the settlement is probably the malpractice carrier for his high-priced, supposedly super-duper lawyers. DSK almost certainly could not have been forced to try the case there. Your average second-year law student could have successfully removed the case to federal court without any difficulty at all and almost certainly achieved a far better result overall.

What’s more, I’ve never heard of a civil lawsuit in which the supposedly high-powered defense team makes only a single, ridiculous motion pre-trial and then immediately surrenders and forks over a settlement that works out to be vastly more than the defendant’s entire net worth (and for which he supposedly must go into debt to the tune of millions of dollars). If that’s what happened then his lawyers must either be crooks or they are total clowns who should be laughed out of the profession.

Also, I have no idea why Anne Sinclair would simply make a gift of $3 million to some woman she’d never even met before. The fact that she financed her husband’s legal defense and put up his bail has no possible bearing on whether she is vicariously liable to Diallo for DSK alleged misdeeds. It is simply beyond the bounds of belief that Nafissatou Diallo could have squeezed even a single penny from Anne Sinclair in this lifetime or the next.

Similarly, on the principle that you can’t get blood from a stone, there’s no reason for DSK to go into debt or even change his way of life to pay a legal judgment to Diallo, if she would be victorious in the case that every lawyer in America agreed should have been moved to federal district court on the day it was filed. Even if she got a judgment, she couldn’t have collected if DSK didn’t have the assets to pay it and Diallo herself probably doesn’t have the resources to collect that judgment in the French courts, in any event.

Finally, Cincinna, your argument about DSK leverage over the unnamed, but presumably rich and powerful people who you darkly surmise are associated with the PS and exerted influence to so that DSK could obtain his $3 million loan to pay Diallo makes absolutely no sense. None. If DSK still had such rich and powerful friends, it would be easier and cheaper all around for them to simply use their influence to make it impossible for Diallo to collect her judgment (assuming she got one) in France. Much cheaper. Much easier. DSK doesn’t have to go into debt and they don’t have to risk being forced to pay if he can’t or won’t.

My guess is that DSK was either betrayed by his lawyers or his homeowners insurance policy or similar insurance paid the judgment or else Diallo received little more than a token settlement. But to have simply handed over $6 million to this woman for no reason is simply absurd. I have serious doubt about the accuracy of this newspaper story.

Cincinna said...

@ Mitch
  I'm not arguing, it's always a pleasure to exchange ideas with you. Certainly not "foaming at the mouth" as our old friend "anonymous" stated. I'm merely expressing a thought on "un fait divers". DSK may be front page news in France, and the lead story on the French evening news today, but here in NY, let alone the rest of America, people hardly even noticed. 
 Here in NY, we are still reeling from Hurricane Sandy, with many people and businesses still without power, and with people who lost their lives, their  homes, with damages in the $50 billion range. Much greater than Katrina, many more people affected, but a demographic that the US media and French and world media have little interest in.

  As a lawyer, Mitch, you know why clients settle, and why lawyers would advise their client to settle. The main reason is an assessment of their chances of winning at trial.
  The chances of DSK winning a jury verdict are risky, to say the least. In the Bronx, much riskier. 
 This is a civil suit, a change of venue to Federal court is not that easy. It would require claiming diversity jurisdiction, that is, claiming the parties reside in different states or a foreign country. The level of proof of guilt would be "preponderance of the evidence" not  "guilt beyond a reasonable doubt".

 My guess is that DSK and his lawyers came to the conclusion it would either be a financial settlement, or an ugly, long drawn out trial before a jury in Bronx County, with disclosure, witnesses, in short a nightmare. And one he would most likely lose. 
 Apparently, settlement negotiations have been going on for months. Ms. Diallo probably could have gotten a verdict in the $20-$25 million range, but there is a strong possibility that on appeal, the judge would have knocked that down. 

  I can't speak to the reasoning of Anne Sinclair which is way, way above my pay grade, nor the competence of DSK's lawyers. 
  From what I read in the French papers, DSK's legal  worries are far from over in France. 

  For the record, I never mentioned anything about the PS, darkly surmised or otherwise. 
  As to the snarky remarks from "anonymous": powerful men like DSK have powerful and rich friends in high places, all over the world.  Maybe someone is footing the bill for reasons we will obviously never know, or perhaps just out of the goodness of their heart.

Mitch Guthman said...

@ Cincinna,

Having been both a defendant and a lawyer, I think I have a good idea of why people settle legal actions. I simply do not believe that the article is true. I do not believe his lawyers advised him to make such a settlement. I do not believe that Anne Sinclair would contribute to such a settlement. Absent some bizarre emotional or religious need of DSK’s there is simply no reason for such a settlement when the client is in absolutely no immediate jeopardy and probably could live to a ripe old age without every paying Diallo so much as a sou.

I find it difficult to believe that DSK’s lawyers were at all worried about ugly disclosures coming out at trial. I think we can say that DSK’s personal life has been fairly well poured over at this point and leave it at that. Besides, as near as I can tell there haven’t been any evidentiary motions filed yet so really nobody could have more than the vaguest guess about what sort of dirt (known or previously undisclosed) would be admissible against DSK at trial, if indeed any previously undisclosed dirt exists.

I continue not understand why there was no attempt to remove the case to federal court. As far as diversity jurisdiction goes, there would unquestionably be federal in a lawsuit between Diallo and DSK. If he’s a nonresident alien or if his entry into the country was because of his status as an IMF employee, then alienage jurisdiction exists and the case is freely removable. Even if DSK were a permanent resident alien or a US citizen (and I understand he is neither) there would still be complete diversity since at the time the suit was filed DSK was either permanently resident in France or he was domiciled in the District of Columbia.

(I do understand that there are ways of structuring lawsuits to create or defeat diversity but I also know that these are not so easy to do and represent extremely fertile for expensive, time-consuming motions and appeals, so there was no reason not to remove the case and see what the federal courts would do with it. On the other hand, I never had much of a civil practice, so if there are people out there who can explain why the case couldn’t or shouldn’t have been removed, I’m perfectly willing to be educated).

I have no idea whether a jury would find for or against DSK. I tried all of my cases in front of New Orleans juries so I don’t know anything about the kind of people who might be serving on this jury. What I do know is that most of the people of all races, classes and backgrounds who served on my juries took their responsibilities very seriously.

I saw many defendants who thought they were going to walk no matter the evidence but for most jurors being on a jury wasn’t the big get even and this case might have more surprises in it than most. Street smart juries have a way seeing things that might not be a positive for somebody carrying Nafissatou Diallo’s baggage.

Finally, I doubt that DSK’s lawyers have been losing any sleep over the fact that Diallo might someday, conceivably win a $25 million verdict that might eventually be upheld. A judgment isn’t money. It’s just a piece of paper that can sometimes be converted into money. Even assuming her lawyers have the resources to spend years upon years battling in American courts, I don’t see any way in the world that a French court will order DSK to hand over any money.

(Even more so if there are rich and powerful people helping DSK since the place where they are likely to have power is France and yet France is where Diallo has to prevail if she's to see any money)

Even if everything were to fall right for her, I don’t see Diallo and her lawyers having what it takes to go the distance. So I don’t see any logic to the settlement described in the article. I therefore suggest that the article is not accurate.

Cincinna said...

  The hearing before Judge McKeon in the DSK matter will be held in Bronx Supreme Court on December 10. He is not expected to appear himself, but his attorneys will be there to finalize the settlement. Ms Diallo will likely be present.

 Most civil lawsuits, especially in NY, are settled amicably with an agreement and a financial statement between the parties. This is a civil, not a criminal matter. 

  The case of Paula Jones v Bill Clinton comes to mind, although it was in AK, not NY. Clinton paid an undisclosed amount to Paula Jones to settle her lawsuit against him.
  In reading the comments in French newspapers like Le Monde and Le Figaro, it is all about money. Americans, if they are interested at all, which they really aren't, are more interested in the law. 
  As far as the people of the State of NY, there is consensus in the legal community that District Attorney Cyrus Vance totally screwed up this case, which should have been pursued.  In statements he admits there was substantial evidence in this case against DSK. Vance had had a lackluster career since, and will have to answer to the people when he comes up for reelection. Vance is no Robert Morganthau, his predecessor who served for 34 years (the model for DA Agam Schiff on Law and Order) or Brooklyn DA Joe Hynes. 
  As to why DSK would settle rather than risk a jury trial in The Bronx. His chance of winning in that venue is almost non-existent. 
 First, because in the Bronx, whose population from which a jury us impanelled, is 89% non-white lower income or unemployed, a rich, white, Jewish French man, is not exactly the kind of defendant who would be found sympathetic. 
  With the racial polarization in the last four years, and the class warfare that has been ginned up for political purposes, DSK would be a fool to continue. 
  More importantly, the facts, including his history and lifestyle, would surely guarantee a loss for him, a win for Diallo. 
 The media, and the usual race hustlers surrounding Ms Diallo set the stage for conviction early on. 
 Basically, nobody here is interested. 

Cincinna said...

It seems I spoke too soon!
back to his old ways, this sordid man has learned nothing!

DSK en boîte de nuit : la photo qui enflamme le web:

Mitch Guthman said...

@ Cincinna,

We are going around in circles again. I simply can't believe that DSK will be settling on the terms described in these articles. There is no conceivable benefit to him in making such an outlandishly generous settlement at this juncture, especially if it requires to him to go millions of dollars into debt. Can you offer any explanation?

Just to point out one reason why the settlement would be illogical: A mildly capable lawyer would almost certainly be able to keep this case from being tried anytime during this or the next decade for probably less than $500K (and maybe for much less) while imposing legal costs on the plaintiff of probably a couple of million dollars. Are her lawyers really prepared to gamble that much just for a shot at getting a judgment which is probably going to be impossible to collect.

Seriously, there are a vast number of tricky procedural and constitutional issues raised by this case all of which potentially need to be resolved by an appellate court before the case can get in front of a jury and all those issues and more could keep the case on appeal for another four or five years after that. Admittedly, this would be easier in the federal court system but I also have never been able to figure out why DSK's lawyers didn't simply remove the case to federal court the day it was filed.

Finally, as I mentioned earlier, a judgement isn't ready money. You have to collect it before you can spend it. If DSK doesn't have millions of dollars, the maid can't make him pay what he doesn't have. Her judgment might have some value as an historical curiosity, like Czarist bonds and probably much more difficult to collect on.

DSK isn't going to be president. His wife has gone and she took her family fortune withi her. What's the point of settling?