Oral Arguments on TFG's Appeal of NY Attorney General judgment for $450+ million [View all]

[LetMyPeopleVote]

There were oral arguments yesterday on TFG's appeal of the New York Attorney General's $450+ million judgement against TFG.

Link to tweet

There are reports about the appellant court being hostile and favoring TFG.
https://eu-west-3.democraticunderground.com/132241029

Yesterday, I listened to part of the oral arguments. Here is a link to the oral argument
https://www.youtube.com/live/emwvMtwZ53k

Call me cynical but there is a chance that the appeals court had previously hinted at a ruling when the court reduced TFG's bond from almost $500 million to a mere $175 million. The judgment in this case was based on two separate damage elements (i) TFG's saving due to lower interest rates due to the fraudulent statements and (ii) disgorgement of all profits realized by TFG due to the fraudulent transactions. Disgorgement is a strange remedy that is sometimes used when no other form or measure of damages is appropriate.

Over $300 million of the judgment against TFG is based on disgorgement of profits from two real estate transactions plus interest on such profits from the date of the transaction. Legally, disgorgement is an extreme remedy that is usually based on the transaction being solely due to the fraud. In other words, there is a position that disgorgement is the appropriate remedy if these transactions were only possible due to the fraud. The two transactions on which disgorgement was ordered were helped by the TFG fraud but such transactions could have been consummated even if TFG had not committed fraud but at a higher interest rate. In addition, disgorgement is an equitable remedy and as such disgorgement is subject to some equitable defenses that the court of appeals may deem applicable.

The balance of the award against TFG is based on the lower interest rate that TFG was charged due to the fraud which amount is around $160 million. I did not listen to TFG's attorney main argument but listened to most of the NY AG attorney oral argument where the judges asked at least twice if the damage are being double counted. I think that the court may well reduce the judgment to a lower amount consistent with the $175 million bond. I can see the court of appeals affirming the interest rate component of the award but having issues with disgorgement as a remedy.

Bottomline, a $175 million judgement against TFG is still a victory. I would not consider a ruling where the court reduces the over $500 million judgement against TFG to a mere $175 million to be a defeat. That amount is still going to hurt TFG combined with the nearly $95+ million that TFG owes in the other civil defamation case.