Photo by Hugh Williams
Michael DeMarco is the type of litigator that typically graces our Lawdragon 500 Leading Lawyers in America guide. A member of the 2008 list and on the ballot again this year, DeMarco specializes in complicated civil litigation and white-collar criminal cases at the Boston office of K&L Gates.
DeMarco was well prepared for the pressures of a high-profile litigation practice given that he cut his teeth during the 1970s as an assistant district attorney in Boston and as a special counsel to the city during the desegregation cases. He now does a lot of work for the pharmaceutical industry and is defense counsel in the multidistrict litigation consolidated in Boston in which plaintiffs allege that companies marked up the average wholesale price of prescription medications. DeMarco also is representing Ecuador as it pursues fraud claims related to the 1996 failure of its fourth-largest bank. That trial is scheduled to start in the Bahamas early next year.
Lawdragon: Can you explain to our readers what is at issue in the case Banco Central del Ecuador vs. Ortega?
Michael DeMarco: The Central Bank of Ecuador (Central Bank), the equivalent of the Federal Reserve Bank in the United States, engaged me and my firm, K&L Gates, to represent the Central Bank, two other banks (one in Ecuador and one in Curacao) and a Bahamian mutual fund in an action pending in the Bahamas arising from the 1996 failure of Banco Continental, then Ecuador’s fourth-largest bank.
I lead a trial team comprised of British and Bahamian lawyers in preparing for trial in this complex fraud action in which we allege that through a series of fraudulent transactions, members of a prominent Ecuadorian family that controlled Banco Continental siphoned approximately $150 million from the bank through loans to other Ortega-controlled companies in a manner which shielded those companies from subsequent claims when Banco Continental failed and was taken over by the Central Bank.
Of course, the case is much more complicated than that but in a nutshell that’s where we are. After waiting for our day in court for almost 14 years, the Republic will finally get a trial starting on January 18, 2010 and expected to last for several months.
LD: What are some of the challenges of this litigation?
MD: The fact that another law firm handled this case for 12 years before we were retained created a great deal of work for us in order to become educated as to the facts, evidence and witnesses to the numerous transactions that resulted in the fraud. Of course, it goes without saying that preparing a case for trial on behalf of an Ecuadorian state bank in the Bahamas with lawyers and witnesses from different countries raises cultural and governmental issues and has created numerous legal, cultural and coordination challenges.
We have overcome these difficulties, and strongly believe that the people of Ecuador deserve the best possible result after having suffered through horrible economic distress when Banco Continental failed during a time when the life savings of some 240,000 depositors were wiped out.
LD: How did you develop an expertise in white-collar crime cases? Can you describe one of the biggest cases you’ve handled in this area?
MD: My expertise in criminal defense arose from my public service as a prosecutor and special corporation counsel for the City of Boston during the school desegregation cases in the 1970’s, a turbulent time in the history of the City. School desegregation was difficult and generated ancillary criminal activity associated with its profound social and cultural change.
During the course of my public and private life, I have handled many white-collar criminal cases both as a prosecutor and defense lawyer as well as a variety of fraud related business litigation. Although it is difficult for me to highlight any one of them, I would say that nothing could compare to the Boston school desegregation case where, as a 29-year-old lawyer representing the mayor and the police commissioner of the City of Boston, I found myself in federal court every day for three years on difficult and emotionally charged matters. That case was a lesson in perseverance and maturity.
LD: What do you see ahead in white-collar crime investigations? Are you personally handling more as a result of the recent economic troubles?
MD: It is difficult to forecast what lies ahead for the new administration and new Attorney General leading the Department of Justice, which will set the tone. Cases like the Madoff and Stanford case have put us all on notice that the government will take a very aggressive posture in the pursuit of financial fraud more so than it has in the past, when it was understandably more focused on the fallout of 9/11. On balance, the troubled economy has resulted in a busier white-collar bar, and we at K&L Gates have seen a steady diet of criminal and securities investigations and litigation, both civil and criminal, all over the country.
LD: You seem to represent a lot of pharmaceutical companies. What was your most challenging or high-profile case in this area?
MD: About 20 years ago, I was asked by a good friend and well-known pharmaceutical lawyer to represent a manufacturer in a medical product case. That engagement led to a number of other cases that eventually culminated in my involvement in the Pharmaceutical Drug Pricing Litigation which has spanned over the last eight years in a class action multi-district litigation thankfully venued in Boston, my home town. The pricing litigation has clearly been the most challenging and one of the most high-profile cases I have handled since I was asked by the Court to assume the role of liaison counsel for 13 of the 18 defendants in order to maintain order and coordinate the court process.
LD: Is there a benefit to specializing in this industry that carries over between different cases?
MD: There is always a benefit to specialization. Having been trained as a trial lawyer and having tried or litigated hundreds of cases involving different areas, it is difficult to specialize in any one area other than to remain as close to the courtroom and judiciary as possible. I found that although the subject matter and facts of every case may be different, the rules of evidence and the law don’t change much. When you have a great and supportive law firm and staff around you, as I enjoy at K&L Gates, there is not much you can’t do.
LD: What is the biggest trial hurdle that you overcame?
MD: I have been challenged many times by cases I have handled because of the social circumstances in which those cases took place. For instance, in the 1990’s, I handled a high-profile matter involving the murder of a woman by her husband, Charles Stuart. Stuart falsely alleged that the murder was committed by African-American male and thereby reignited racial tensions that I had not seen in Boston since the time of school desegregation in the 1970’s. I also represented a very wealthy Massachusetts businessman accused of sexual harassment during the time of the Clarence Thomas-Anita Hill hearings. Most recently, I represented a Saudi prince in a motor vehicle homicide case, which came in the wake of 9/11.
Despite these challenges posed by these cases, I think the Central Bank of Ecuador case has posed the most difficult issues. After preparing for the Central Bank of Ecuador, we learned on the eve of trial that our assigned judge who had presided over the case for 12 years had abruptly resigned his seat on the bench in a cloud arising out of a news expose of his romantic involvement with parties to a case over which he ruled in their favor.
Our witnesses were literally ready to board airplanes. The whole process had to be postponed while we sought a new judge and got the case back on track with all of the attendant expenses resulting from a major upheaval created by his departure. It is important to note that the people of Ecuador and certainly the leaders of the country are sensitive to public corruption and we had to calm them and provide them confidence that what happened was aberrational and that they would now get their day in court – which we are now very much looking forward to.
LD: What advice do you give to young lawyers when it comes to trials?
MD: When I taught a litigation course as an adjunct professor at law school in Boston, I told my students that anyone interested in trying cases needs to be disciplined and can never be over prepared. Trial practice is not for everyone; the best trial lawyers tend to be the best judges of human nature and the human condition. Even so, they need to prepare for anything that may come along as it typically does. Trial lawyers hate surprises but learn sometimes the hard way now to deal with them.
LD: Do you have a favorite case from your time as a prosecutor in MA?
MD: During the early 1970’s in Boston, there was a crime wave that challenged the quality of life in the city with numerous robberies and home invasions. I led an investigation that showed that there are only a few people responsible for the most serious crimes. It turned out that the ringleader was a young kid, fearless and very dangerous. I prosecuted him for over a dozen felonies with a minimum mandatory prison sentence mandated by of 10 years. After his conviction I received a number death threats. Ever since that time, even though it was an exciting case, I have been a fan of city living with 24-hour security. Similarly, my involvement in investigations of the Mafia was also exciting.
LD: How about from your legal work during the desegregation case. Any memories stand out? What was that period like for you?
MD: The period my involvement in the desegregation case from 1974 to 1977 was a very difficult and challenging time for the City of Boston. Race and ethnic relations were strained to the maximum and, as I mentioned earlier, crime in the city was at an all time high. As a young lawyer and city kid, it was troublesome for me to see all of it but was personally rewarding to know that some of the best people were exercising invaluable judgment that has made Boston today a world class city and destination for the world.
LD: Have you spent your entire life in the Boston area?
MD: Yes, I have spent my entire life in Boston. I was born and raised here but as a result of my work over the past year or so I have spent a great deal of time in Ecuador and in other parts of South America where I now have some great friends and contacts which I am sure over the years will grow and become a greater part of my career path, with K&L Gates’ excellent support.
LD: Do you recall when you wanted to become a lawyer and what the reason was?
MD: I was led to the law through various role models in my own family, my Dad and his brothers all working in the courts and the oldest was my namesake and a judge in Boston for many years. I suppose looking back and admiring the way they lived, I decided it was something worthy of pursuit and staying with it was what made it all possible for me.