A. Katherine Toomey

A. Katherine Toomey gave a presentation on U.S. "sunshine laws" at the International Business Law Consortium Annual General Meeting, held September 30–October 1, 2021.

In a decision issued on Feb. 5, the U.K. Supreme Court quashed a notice pursuant to Section 2(3) of the 1987 Criminal Justice Act, that sought to require a U.S. corporation, KBR Inc., to produce documents located in the U.S.  The decision has important consequences for cross-border discovery and investigations, as the U.S. and the U.K. appear to be taking divergent approaches.

In the dying days of his administration, President Trump has moved to smash the civil service.  Through Executive Order 13957 (“EO 13957” or the “EO”), the President aims to carve out an entire new class of civil servants, sheering them from long-standing federal protections designed to create a professional, apolitical federal workforce.  Lewis Baach Kaufmann Middlemiss is investigating the scope of the Executive Order and possible remedies available to affected civil servants.

The Second Circuit held that 28 U.S.C. § 1782(a) cannot be used to support petitions for discovery for use in private foreign commercial arbitrations, settling an issue that has lingered unresolved in the circuit since 2004. The new decision, In re Guo, puts the Second Circuit squarely at odds with recent decisions issued by other circuit courts, raising the possibility that the Supreme Court will take up the issue next session to resolve the split. While Guo does not impact the ability of parties to foreign public arbitrations and litigations to take § 1782(a) discovery, for now at least, parties to private foreign arbitrations may have to look to more favorable circuits outside New York for relief.

A. Katherine Toomey moderated the International Business Law Consortium event IBLC 2020: Trends in Bankruptcy and Insolvency and gave a presentation on Chapter 15 of the U.S. Bankruptcy Code.

The coronavirus pandemic has not only caused untold misery, it has forced the virtual shutdown of the global economy. Everyone hopes that this crisis will pass, but events have shown there is a false choice between mitigation and resumption of economic activity. Mitigation, with testing and social distancing, must be done to avoid wave after wave of disease, which will only lead to rolling cessations of economic activity. Given the economic dislocation occasioned by this global crisis and that it is likely to continue for at least a few more months, we can anticipate that many businesses will fail, and others will require time and help to restore financial health and operations. There is little doubt that innumerable global businesses will need the protection of an organized and coordinated insolvency and reorganization process as soon as this crisis is over. The time for them to begin planning is now.

The First Department Appellate Division in New York recently issued a ruling that will make the recognition of foreign country money judgments more difficult in New York. Kate Toomey and Tara Plochocki summarize its impact.

Ms Toomey is quoted saying, "If [the case] is decided in favor of Hamer, then it may signal a small equitable 'crack' in the longstanding edifice that says time limits to file appeals are jurisdictional." 

Featured speaker for Women’s Bar Association business development lunch concerning how cultural differences can affect business development strategies and the potential for success.

Presented by A. Katherine Toomey & H. Bradford Glassman to British Bankers Association Workshop on the Risk of Sanction Breaches.

A. Katherine Toomey, moderated a panel on International Insolvency at the meeting of the International Business Law Consortium. The panel discussion focused on ancillary assistance in the context of international insolvency through Chapter 15 of the United States Bankruptcy Code, European Union law, and comity. Lisbon, Portugal.

Presentation by Eric L. Lewis & A. Katherine Toomey.

Presentation by A. Katherine Toomey at the Center for International Legal Studies' Conference on International Criminal Justice and White Collar Crime, Steamboat Springs, Colorado.

Eric Lewis, A. Katherine Toomey, Adam Kaufmann, and John Moscow were recognized for their market-leading expertise in the tracing and recovery of lost, misappropriated or stolen assets.

Who's Who Legal has recognized four Lewis Baach Kaufmann Middlemiss lawyers as leading asset recovery practitioners in its 2022 guide. 

Who's Who Legal recognized four Lewis Baach Kaufmann Middlemiss lawyers as leading asset recovery practitioners for 2021. 

A lawsuit that sought information about the drugs Indiana plans to use in lethal injections
and that motivated the Legislature to use a late-night session to keep the veil of secrecy
intact has come to a close, with the state paying more than $800,000 in legal fees and
disclosing that its supply of lethal injection drugs has long been expired.

For "any kind of foreign litigation or arbitration ... that involves transactions in U.S. dollars, there's at least a possibility that there's going to be information in the U.S. and that tends to be attractive," said Lewis Baach Kaufmann Middlemiss PLLC partner A. Katherine Toomey.

“When I made this public records request in 2014, I never imagined that the state would spend the next seven years fighting to prevent these records from being released to the public,” Toomey wrote in an email. “Transparency is a key principle of good governance and the rule of law. The state should not be operating in secret and refusing to disclose vital information to the public.”

The Indiana Supreme Court has ordered the Department of Correction to pay more than $500,000 in legal fees in a fight over one of the state's deepest, darkest secrets.

It all comes back to the convoluted legal fight that started in 2014 with a public records request from A. Katherine Toomey, a Washington, D.C., attorney who represents groups opposing the death penalty.

Justices divided 2-2 in a case brought by a Washington, D.C., attorney against the Indiana Department of Correction over Indiana’s “secrecy statute” that prohibits disclosure of the state’s lethal injection drugs and who supplies them.

With Justice Geoffrey Slaughter not participating, the remaining justices split in an order issued Thursday. By rule, the lack of a majority affirms the rulings of Marion Circuit Judge Sheryl Lynch, ordering DOC to disclose the records, awarding $538,000 in attorney fees to Washington attorney Katherine Toomey and granting other relief.

Two Lewis Baach Kaufmann Middlemiss professionals have been recognized as Global Leaders in Who’s Who Legal: Asset Recovery 2020.  Who’s Who Legal is one of the world’s leading directories of legal practitioners.

The Indianapolis Star reported on a pending ruling by the Indiana Supreme Court on whether the state must reveal who supplies the drugs Indiana plans to use to administer the death penalty—a case which began with a public records request filed by LBKM's Kate Toomey.

The COVID-19 pandemic and the related economic crisis are causing financial uncertainty and liquidity problems at law firms of all sizes. Law firms are responding by taking aggressive steps to slash expenses by shortening or eliminating summer programs, deferring start dates for new hires, reducing pay, moving employees to part-time schedules, and laying off personnel.

Although it gets less press, law firms are almost certainly also looking to maximize income and bolster their cash positions through shifting personnel to countercyclical practices, aggressive collection strategies, drawing down letters of credit, and capital calls on partners. Firms are looking for loans from the U.S. government as well as conventional banks. But law firms tend to have few hard assets for security, and, given the economic circumstances, banks may look skeptically at their balance sheets. Firms may therefore look to less traditional forms of funding.

Four Lewis Baach Kaufmann Middlemiss professionals have been recognized as Global Leaders in Who’s Who Legal: Asset Recovery 2019. Who’s Who Legal is one of the world’s leading directories of legal practitioners.

Citing “egregious” misconduct by state prison officials in trying to evade a court order to produce public records concerning its efforts to obtain lethal-injection drugs, an Indiana judge has directed the state’s Department of Correction to pay more than a half million dollars in plaintiffs’ attorney fees. 

Marion Circuit Judge Sheryl Lynch awarded $538,000 in attorney fees to plaintiffs who sued the DOC to obtain records pertaining to the lethal injection protocols that would be used at the Indiana State Prison in Michigan City in the event an execution was carried out. Lynch’s order was issued Wednesday.

Non-US insurers with exposures to Iran-related business face a difficult six months to bring their business into compliance with US president Donald Trump’s newly reinstated snap-back sanctions

Katherine Toomey was interviewed about the President’s latest travel ban proclamation and observed that the new ban might signal future “policy changes and reciprocal restrictions on U.S. travel.”  She added “I think that what we're seeing is uncertainty in the future about how many foreigners may be able to come over here for business purposes, whether for hiring or meetings or conferences and the extent to which that will have to be navigated by general counsels."

Katherine Toomey was interviewed about renewed Chamber of Commerce efforts to obtain disclosure of third party funding arrangements for litigation.   She noted that the process of obtaining funding can be helpful “because oftentimes you are engaging in a real testing of the strength of the case. . .  You have people who are very knowledgeable and are interested in making sure they're making a good investment, asking you some very hard questions about the weakest parts of your case. So the cases that make it through are stronger for the process."

Lewis Baach Kaufmann Middlemiss represents Al Jazeera's Ahmad Zeidan and independent correspondent Bilal Kareem in an action challenging their inclusion on the United States’ “Kill List.”  Kate Toomey explains the case in an audio interview.

A host of likely legal challenges will confront Middle East related entities doing business in or with the United States under President Trump, write Waleed Nassar and Kate Toomey.

On Monday, Dec. 12, the U.S. Supreme Court issued a unanimous decision clarifying subsection 1 of the bank fraud statute, 18 U.S.C. §1344, in Shaw v. United States. Notwithstanding a veritable ocean of case law, regulations and statutes that delineate the difference between a bank’s property and that of its customers, the court quickly pushed such technical arguments to the side, holding that — for the purposes of the bank fraud statute — there is no practical difference between targeting a bank customer’s funds and targeting the bank’s own funds.

“The court’s decision is in keeping with the long-standing principle that a fraud can be prosecuted under the criminal law even if the victim does not suffer a loss — which is an important distinction between criminal fraud and civil fraud,” said A. Katherine Toomey, a partner at Lewis Baach PLLC.

The Appellate Division, First Department, recently affirmed the dismissal of various claims brought by New Greenwich Litigation Trustee, successor to the claims of two feeder funds in the Bernard Madoff affair, against various third-party fund administrators, accountants and auditors.

“The government is looking for the Goldilocks number -- not too high and not too low,” said Katherine Toomey, a litigation partner at Lewis Baach Pllc in Washington who’s not involved in the Deutsche Bank case. “They want a deterrent for conduct and punishment, but without putting a major institution out of business or costing jobs.”

The U.S. Supreme Court is set to hear arguments Tuesday in a case that could make it more difficult for federal prosecutors to bring some bank fraud cases, and may also help determine whether banks are legally owners of customer deposits once they are made.

"Had the government used the second clause to go after Shaw, there would be no case before the Supreme Court," said A. Katherine Toomey, the managing partner of Lewis Baach PLLC's Washington office.  "What seems the weirdest to me is that he was only charged under subsection one," she said.

Next week, for the second time in two years, the U.S. Supreme Court will hear argument in a case for the purpose of resolving a split in the circuits concerning the scope of the bank fraud statute — 18 U.S.C. §1344. 

Mr. Francos is a contributing author.