It is the story which just keeps on giving: the long running, three-way struggle between international mining conglomerate ENRC, its former legal advisers Dechert, and the UK’s Serious Fraud Office. For legal journalists, the ongoing saga has given them plenty to write about over the past year.
Evidence of the ding dong battle can be found in some of the most prominent headlines of 2018 that have appeared in the British legal trade press: ‘Dechert accused of leaking confidential information to The Sunday Times in long-running ENRC dispute’ was the Legal Week splash in April. The Lawyer followed up in June with ‘SFO blasted for “unhealthy relationship” with Dechert after ENRC leak.’ And following the widely reported court of Appeal judgment in September, Legal Business proclaimed: ‘A victory for legal privilege as ENRC triumphs in landmark SFO case.’
But the story is far from over just yet. ‘Landmark privilege win: appeal court rules against SFO in ENRC case’ headlined the Law Society Gazette in September, followed by ‘SFO will not appeal ENRC privilege ruling’ in October. Meanwhile ENRC has launched an application for judicial review (JR) in relation to the SFO’s conduct over the matter, and in particular its relationship with Dechert.
If the London office of Dechert is feeling the heat from the relentless barrage of headlines, they have made no public comment to that effect. There is a further dimension: parallel litigation continues in the shape of a negligence claim by ENRC, as confirmed by another Law Gazette headline in June: ‘ENRC sues Dechert for negligence over SFO probe.’
Understandably, the departure of Miriam Gonzalez, who headed the ENRC account at Dechert alongside Neil Gerrard and was the firm’s co-chair of international trade and government regulation practice, also attracted much attention in October, after it was announced that she would be moving to California with her husband Nick Clegg, the UK’s former deputy prime minister who is joining Facebook in a senior communications role. However, this was not seen as the only catalyst for her decision to leave Dechert. The American Lawyer commented wryly: ‘Her role in the leadership of the practice became complicated in May when Dechert brought in Hughes Hubbard & Reed IT practice chairwoman Amanda DeBusk to become the new chairwoman of the practice.’
Gonzalez originally joined Dechert from DLA Piper in 2011 – exactly the same switch in the same year from the same firm as that made by Neil Gerrard. Whereas her arrival at Dechert brought a clutch of favourable headlines, Gerrard’s arrival created a storm. ‘Outgoing DLA partner faces dispute with firm over terms of exit’ was Legal Week’s headline in May 2011. The article explained: ‘DLA Piper’s former global co-head of litigation Neil Gerrard has become embroiled in a dispute with his former firm over the terms of his departure to Dechert, it has emerged.’
Seven months later, The Am Law Daily’s banner read: ‘DLA Piper and Dechert End Bitter Partner Dispute.’ The article underneath reported: ‘DLA Piper and Dechert have quietly settled their fierce feud over the latter’s 2011 hire of former DLA litigation co-head Neil Gerrard. A source close to the situation says both a UK arbitration and a US litigation were settled in December, although it is unclear whether any money will change hands.’
Gerrard is also the man at the centre of the SFO/ENRC maelstrom: still in situ at Dechert as co-head of the firm’s white collar and securities litigation practice. Yet despite – or perhaps because of – the numerous adverse articles regarding him, including his reportedly being in “rape mode” when billing ENRC, as well as allegations of collusion with the SFO, he has kept a very low profile. Dechert, of course, refute the allegations in the strongest possible terms.
In 2018, Gerrard’s name does not feature in any online news reports, save in relation to ENRC and the SFO, nor does he appear to have written any published articles in the trade press or to have spoken at any independently organised conferences or seminars. Interestingly, most of the individuals who handled the ENRC matter from the SFO side have left the agency, apart from Mark Thompson, who acted as interim Director for four months before Lisa Osofsky arrived in September
For a co-head of the white collar and securities litigation practice at a major US firm, things seem to have been strangely quiet. Indeed, in an unusual move for a law firm partner, which puts his negative headlines further down a Google search for Neil Gerrard, his position at Dechert is the subject of a paid Google Adwords campaign.
Grabbing the headlines in his place has been Roger Burlinghame. ‘Dechert Lands UK-Based Former US Prosecutor From Kobre & Kim’ reported the American Lawyer. The subhead explained: ‘Former Brooklyn federal prosecutor Roger Burlingame is joining Dechert in London, leaving behind the fast-growing boutique that first lured him across the Atlantic.’
Burlingame arrived at the London office of disputes and investigations boutique, Kobre & Kim, five years ago, having previously spent nearly 10 years at the United States Department of Justice (DoJ) where he was an assistant US attorney in the Eastern District of New York, and chief of the Public Integrity Section.
At Kobre & Kim, he represented the “flash crash” trader Navinder Singh Sarao, who was fined $38.6 million after placing false bids on the Chicago Mercantile Exchange between 2009 and 2014 – all from his bedroom at his parents’ home and the Ahsani family, owners of Unaoil, which was subject to an SFO probe in 2016. This attracted more headlines in August 2018 when the SFO suspended Tom Martin, the senior investigator in charge of managing the Unaoil investigation, over allegations of gross misconduct.
Even with Burlingame’s arrival in June – a major development for Dechert – Gerrard maintained an unusual silence: no public comment from him was attributed in any of the press reports about the new appointee, despite the fact that he is co-leader of the practice which Burlingame has joined.
Instead, in the Dechert press release which announced the move, it was Andrew J. Levander, chair of the firm’s policy committee and a partner in the white collar and securities litigation group, who said: “Roger is recognised as the undisputed market leader among lawyers representing UK and EMEA-based clients who may have exposure in the US His addition provides our European clients with a lawyer on the ground who is a former US prosecutor with deep experience in cross-border white-collar criminal defence, internal investigations and regulatory enforcement matters – a capability matched by only a few global firms.”
A glowing tribute indeed for Burlinghame who, according to law360, brought ‘his team and clientele in tow.’ Perhaps reports of his future work at Dechert will serve to act as a counterbalance to the negative headlines which have accrued primarily as a result of Gerrard’s alleged actions – although it must be said that Dechert comprehensively and vigorously denies all of the allegations which have been made.
Nevertheless, Burlinghame’s impressive and impeccable track record may serve as a launch pad for him to assume greater responsibilities in due course, possibly even replacing Gerrard as co-head of the practice. His transatlantic experience would certainly make him an ideal candidate for the role, should it ever become vacant.
Perhaps the stuff of more Dechert headlines yet to come?
Dominic Carman, journalist, writer and legal commentator.